China Business Daily (reporter Zhao Yiru) After the exclusive copyright battle, the war between NetEase Cloud Music and Tencent Music has reignited.

Recently, NetEase Cloud Music sued Tencent Music for "infringing copyright and constituting unfair competition". Can NetEase Cloud Music win this battle?

  Copyright gun smoke rises again

  On April 27, NetEase Cloud Music issued a statement suing Tencent Music for unfair competition.

NetEase Cloud Music has formally filed a lawsuit against Tencent Music Entertainment Group (including QQ Music, Kuwo Music, Kugou Music and other products) for unfair competition, the statement said.

  NetEase Cloud Music said in a statement: "For a long time, Tencent Music Entertainment Group (including QQ Music, Kuwo Music, Kugou Music, Quanmin K Song and other products) has illegally played unauthorized songs and batched fake songs. , follow-up plagiarism of our product innovation, evasion or even confrontation with supervision and other methods infringe our copyright and constitute unfair competition."

  Why did NetEase Cloud Music initiate a lawsuit at this time?

As of press time, the reporter of China Business Daily has not received a reply from the company.

In terms of Tencent Music, it only forwarded a reply from Chen Mo, the head of Tencent Music's public relations, in the circle of friends, and has not yet made an official response.

  Chen Mo said in the circle of friends, "The music industry is not easy, everyone should continue to focus on doing the right things that will help the development of the industry, ignoring the facts to touch porcelain will not help the development of the music industry, and we will not join the ranks of quarrels. After all, TME’s friends are a group of people who truly respect and love music. Relevant evidence has long been preserved, and the lawsuits that should be initiated have already been initiated one after another. I believe in the justice of the law.”

  At the same time, Chen Mo pointed out in the picture of the circle of friends that "NetEase Cloud Music packaged and sold Jay Chou's songs and was sentenced to pay 850,000 yuan", "NetEase Cloud repeatedly infringed Kugou's hot song "All the way to Flowers", "Kugou's follow-up patent" , The music push patent was applied in 2015" and so on.

  However, an industry insider told a reporter from China Business Daily: "Tencent Music's reply was actually turning over a bunch of old accounts and did not answer the question directly."

  Does NetEase Cloud Concert Win?

  In the statement, NetEase Cloud Music said: "QQ Music, a subsidiary of Tencent Music Entertainment Group, has repeatedly listed our popular works without authorization. After we filed for rights protection, QQ Music targeted only in our daily monitoring area. Beijing, Shanghai, Guangzhou, Hangzhou and other regions have removed related works from the shelves, but in other areas where our monitoring and rights protection capabilities are weak, we continue to pirate and release them, deliberately evading our rights protection.”

  "For the dissemination of musical works in the information network, the disseminator needs to obtain the corresponding authorization, and the authorization content is also very detailed, including the geographical area, time, and playback method. An act of copyright infringement.” Hu Gang, deputy secretary-general of the Legal Affairs Committee of the Internet Society of China, told a reporter from China Business Daily, “In order to evade the protection measures of the rights holder, regional rotation, time rotation or broadcast behavior targeting specific users, They are all acts of copyright infringement or unfair competition on the Internet by using technical means. If the facts are established, this is an act of copyright infringement.”

  In addition to piracy and stealing, NetEase Cloud Music said that for unauthorized songs, QQ Music has developed the function of copying the link to its platform’s playlist and then importing it, so that the original playlist can be replayed and downloaded. .

  Hu Gang believes that the Civil Code stipulates that if a network service provider knows or should have known that a user infringes upon the legitimate rights and interests of others and fails to take necessary measures, it will be jointly and severally liable for infringement with the user.

This may also involve the infringement of "deep linking".

  In the statement, NetEase Cloud Music also stated: "For a long time, Tencent Music's QQ Music, Kugou Music, and Kuwo Music have produced a large number of impostor and song-washing works for unauthorized works, misleading users to play."

  Hu Gang said that according to the Civil Code, the right to name is protected by law, and the same and confusing behaviors caused by random imitation of singers' stage names or net names are suspected of infringing on the right to name.

In the case of strong originality of the song title, the song title can constitute a written work in the sense of copyright law, and duplication or counterfeiting of the song title is suspected of infringing the copyright of the written work.

The chorus and other parts in the music constitute a separate musical work or a fragment of the work, and for their identical, similar and confusing behaviors, it constitutes an infringement of the copyright of the musical work.

  "However, the above rights are the rights of the relevant song creators and singers. If the music platform does not sue on behalf of the creators or singers, but sues in its own name, then it needs to be grasped as a whole. The behavior is very concentrated and so on." Hu Gang said.

  In addition, NetEase Cloud Music also stated that Tencent Music has long plagiarized NetEase Cloud Music's visual design, product functions, and innovative mechanisms, such as QQ Music, Kugou Music, and Kuwo Music plagiarizing NetEase Cloud Music vinyl play page Design; Kugou Music and QQ Music plagiarize the "Listen Together" function of NetEase Cloud Music; Kugou Music plagiarizes NetEase Cloud Music's "Yunbei Push Song" function setting and interface design.

  "Interface design is a work of art. Whether it is suspected of plagiarism depends on whether it is enough to cause confusion and misidentification of ordinary consumers in specific cases. Function is an abstract concept, and the probability of being protected by copyright law is low, so Music platforms choose to resort to the protection of the anti-unfair competition law. Repeatedly adopting competition methods that violate the principle of good faith and gaining a competitive advantage may be identified as unfair competition.” Hu Gang said.

  "Article 5(3) of the Anti-Unfair Competition Law stipulates that operators shall not engage in market transactions by unauthorized means such as using other people's well-known names without authorization, leading people to mistake them for other people's goods, etc., and harming competitors. Therefore, , the operator arbitrarily uses the well-known name or abbreviation of another person as the keyword of Internet bidding ranking, causing confusion and misunderstanding by the public, and using the popularity and goodwill of others to achieve the purpose of publicity and promotion of himself, which is an act of unfair competition and should be It will be banned." Jiang Xue, a lawyer from Beijing Jingshi (Tongzhou) Law Firm, told a reporter from China Business Daily.

  So, will NetEase Cloud Concert win the case?

"As long as what NetEase Cloud Music said is true and there is corresponding evidence to assist, there is a chance of winning the case." Jiang Xue said.

  According to the provisions of Article 2 of the Anti-Unfair Competition Law on operators, the determination of operators does not require that the original and the defendant belong to the same industry or service category. As long as they are market entities engaged in commodity business or profit-making services, they can become operators .

Both NetEase Cloud Music and Tencent Music Entertainment Group are market entities engaged in Internet music services and operators within the meaning of the Anti-Unfair Competition Law, and there is a competitive relationship between the two parties.

  "A business operator who has business connections in market competition violates the principle of good faith and generally recognized business ethics, unjustly obstructs the legitimate business operations of other business operators, and damages the legitimate rights and interests of other business operators. In principle, it is determined to be unfair competition. At the same time, operators engaged in Internet music service business should still obtain competitive advantages through honest operation and fair competition, and cannot use other people's service behaviors or piracy through sub-regional piracy without permission of others. To make a profit from it, etc.," Jiang Xue said.

  The fire has been burning for a long time

  In fact, NetEase Cloud Music and Tencent Music have long had disputes over copyright issues.

  In May 2017, Tencent Music Entertainment Group collected the exclusive copyrights of the world's three major record companies, including Universal Music, Sony Music, and Warner Music, and formed an exclusive copyright advantage through multiple acquisitions, monopolizing Jay Chou and Zhang Huimei. Waiting for a group of singers' music resources.

In February 2018, Tencent and NetEase reached an agreement to mutually authorize music works and open them to other platforms, accounting for more than 99% of their exclusive music.

  In July last year, the State Administration for Market Regulation issued a penalty decision for Tencent’s acquisition of China Music Group’s illegal implementation of operator concentration, requiring Tencent to terminate the agreement with the copyright owner within 30 days.

In August last year, Tencent announced that it would give up the exclusive licensing rights of music, saying that most of the contracts had been terminated on schedule.

  In response to this matter, Ding Lei, CEO of NetEase, publicly shouted to Tencent: "We saw the announcement of Tencent Music giving up the exclusive copyright of music. We are very much looking forward to it. This is a sincere decision that does not contain any positive and negative decisions."

  However, judging from the results of last year's financial report, NetEase Cloud Music has not yet escaped the predicament of losses.

NetEase Cloud Music achieved revenue of 6.997 billion yuan last year, a year-on-year increase of 42.9%; the adjusted net loss was 1 billion yuan, a year-on-year decrease of 33.4%.

In the fourth quarter of last year, its online music service had 182.6 million monthly active users, and its online music service had 28.9 million monthly paying users.

  And Tencent Music's financial report is more "good-looking".

For the whole of last year, Tencent Music's total revenue was 31.24 billion yuan, a year-on-year increase of 7.2%, and the net profit attributable to the company's shareholders was 3.029 billion yuan, a year-on-year decrease of 27%.

Among them, online music subscription revenue was 7.33 billion yuan, a year-on-year increase of 31.9%.

In the fourth quarter of last year, Tencent Music had 615 million monthly active users of online music, and 76.2 million paying users of online music services.

  "The era of exclusive copyright is over, and the post-copyright era is coming, and NetEase Cloud Music may gain new opportunities for development. Tencent Music and NetEase Cloud Music have been fighting in the field of originality and copyright. Overall, Tencent Music's market size and profit situation, etc. There are obvious advantages in all aspects." Yu Yuan, an analyst at Mob Research Institute, told a reporter from China Business Daily.

  Yu Yuan said: "From the perspective of competition, both Tencent Music and NetEase Cloud Music are in the first echelon of the market competition landscape; from the perspective of revenue, both Tencent Music and NetEase Cloud Music have continued to grow in operating income in the past three years. The growth rate of revenue is showing a downward trend; from the perspective of revenue structure, the proportion of Tencent Music and NetEase Cloud Music's revenue in online music services, social entertainment services and other revenue has shown a reverse change. The proportion of music services in the overall revenue is decreasing year by year, while the proportion of this segment in NetEase Cloud Music's revenue structure is increasing year by year. This also shows that NetEase Cloud Music continues to increase its content supply side, and the subscription payment rate can be expected to increase. "