Six questions about the delisting of "Tan Talks Traffic": Who owns the copyright?

　　China News Service, July 13 Question:

　　China-Singapore Finance Wu Jiaju

　　Recently, the former host of "Tan Talks Traffic" Tan Qiao posted on the Internet the news that "Tan Talks Traffic" was taken off the shelves and that he may face huge compensation, which aroused the continuous attention of the society, and many legal issues involved in the incident also caused Discussion, what do people in the legal profession think about it?

Image source: Tan Qiao Weibo

Who owns the copyright of "Tan Talks Traffic"?

　　According to the upstream news report on the 11th, the copyright statement of Chengdu Radio and Television shows that Chengdu Radio and Television Urban Life Channel (CDTV-3) is the production unit of the "Safe Chengdu" and "Traffic Light" columns of "Tan Talks Traffic". All copyrights of the column "Safe Chengdu", "Traffic Light" and "Tan Talks Traffic", if any copyright problems occur in the above columns, the unit is solely responsible for it."

　　Hou Chaohui, a lawyer from Beijing Jingshi (Shanghai) Law Firm, told Zhongxin Finance that the question of who owns the copyright should be traced back to the source. There was no copyright attribution agreement signed at that time.

If it hadn't been signed at the time, it might have been controversial now.

　　Zhao Zhan, a special researcher at the Intellectual Property Center of China University of Political Science and Law, believes that although Tan Qiao is the host of the show, the copyright of the programs he produces may not belong to him, because there is an agreement between Tan Qiao and the TV station. The relevant intellectual property rights may belong to the TV station.

　　He Jiepeng, a lawyer from Shanghai Shenhao Law Firm, told Zhongxin Finance that since the program is a public interest law popularization program produced by Chengdu Radio and Television and the Traffic Administration of Chengdu Public Security Bureau.

If there is no special agreement, the copyright of the program shall be jointly owned by the Traffic Management Bureau of Chengdu Public Security Bureau and Chengdu Radio and Television Station.

　　Chang Sha, a lawyer from Beijing Jingdu Law Firm, believes that Tan Qiao, as the host of the show, works with other plot script creators, video participants, video shooters, and editors to complete audio-visual works. If there is no other agreement, the aforementioned audio-visual works The participants together constitute the copyright owner of the work.

　　Qin Pengfei, a lawyer from Shanghai Dabang Law Firm, believes that, regarding the dispute over the work attributes of "Tan Talks Traffic", is "Tan Talks Traffic" an original audio-visual work shot by the photographer, or is it an ingenious work for the photographer. Gao, an audio and video recording of the original oral work created by Police Officer Tan simply by a photographer?

This issue is theoretically controversial, and the determination of this point will have an impact on the direction of the case.

What is the impact of whether "Tan Talks Traffic" is a job work?

　　Qin Pengfei believes that since Tan Qiao is not an employee of the TV station, it may not constitute a job work.

If "Tan Talks Traffic" is not the work of Police Officer Tan, other people using the video program performed by Police Officer Tan must obtain permission from the producer of "Tan Talks Traffic", and also obtain the permission of Tan Qiao and pay compensation.

The protection period of the performer's right is fifty years, ending on December 31 of the fiftieth year after the performance, so the statute of limitations still applies.

　　In Chang Sha's view, if "Tan Talks Traffic" is a work that performs the duties assigned by the TV station, according to Article 18 of the Copyright Law, the copyright of the audio-visual work is owned by the TV station, but the participating creators have the right of signature.

　　Hou Chaohui believes that, first of all, it depends on whether there is an agreement on the ownership of the copyright. If there is an agreement, the agreement shall prevail.

If there is no agreement, it depends on whether it is a job work.

　　Hou Zhaohui said that this incident was a bit special because it was a cooperation between the traffic police brigade and the TV station. Tan Qiao was an employee of the traffic police brigade before.

This incident is the cooperation of two units of Chengdu TV station and traffic police brigade.

If there is a dispute over copyright between Chengdu TV and the Traffic Police Brigade, they will discuss whether it is a work for the job.

Does Tan Qiao belong to the performer?

　　Qin Pengfei believes that Tan Qiao's identity in "Tan Talks Traffic" belongs to the "performer" in the copyright law.

Tan Qiao is the host of "Tan Talks Traffic", leading the whole show, deciding the content of the interview, and dealing with various emergencies during the live broadcast.

"Tan Talks Traffic" is actually more like a documentary talk show under the leadership of Officer Tan. If there is no script, it is mainly based on improvisation, and the content of the performance should be an oral work.

Therefore, he believes that there is no problem with Tan Qiao's special identity as a "performer" in "Tan Talks Traffic".

　　According to Article 39 of the Copyright Law, performers have the following rights:

Figure from the Copyright Law of the People's Republic of China

　　In Qin Pengfei's view, if Tan Qiao is performing for the purpose of completing the performance task of the performance unit, the performance is a "job performance".

For job performances, actors tacitly enjoy the two rights (1) and (2) above.

If there is no agreement between the actor and the unit or the agreement is not clear, the right to perform on duty shall be enjoyed by the performing unit.

　　"And whether the above-mentioned items (3) to (6) related to property rights are actually owned by Tan Qiao, there is a lot of controversy. It is necessary for Tan Qiao to find the labor contract of the year, the cooperation records of the unit and the TV station. clear."

Is the authorization of Chengdu TV station legal and effective?

　　The authorization letter published by upstream news shows that Chengdu Radio and Television Station has sub-licensed all the copyright property rights of "Tan Tan Traffic" and the right to sub-license the above rights, as well as the right to license the above-mentioned rights to a third party for distribution to Chengdu Youshu Culture Communication Co., Ltd. Company (hereinafter referred to as "Youshu Company").

The agreement specifically states that the right to compensation is included, and the above rights are irrevocable rights.

　　Hou Zhaohui believes that whether the authorization is legal or not, if the TV station has copyright, then the authorization is legal.

If the copyright is not owned by Chengdu TV, then the subsequent series of authorizations, including rights protection, are actually groundless.

　　Hou Zhaohui also said that the authorized copyright property rights written in the authorization letter are not the same as the simple authorization protection.

Licensing copyright property rights means that this company helps TV stations to operate program videos and operate copyrights to obtain some commercial benefits.

Then the company will go to Chengdu TV station for income distribution. There are still many such models in the market.

　　"If it is determined that Tan Qiao's participation in the program is not a job performance, even if the copyright owner uses Tan Qiao's "Tan Talks Traffic" program, he should obtain Tan Qiao's authorization." Qin Pengfei said.

　　Qin Pengfei believes that even if Tan Qiao agrees to the copyright owner to broadcast his performance on CDTV-3 (Chengdu TV Urban Life Channel), it does not mean that Tan Qiao's authorization is not required for use on the Internet.

If Youshu Company, without the authorization of Tan Qiao, uses the means of live broadcast and public transmission of its live performances, audio and video recordings, reproduction, distribution, rental of audio and video recordings of its performances, and communication to the public through information networks In "Tan Talks Traffic", Tan Qiao can sue Youshu Company.

Does Tan Qiao face huge compensation?

　　Hou Zhaohui said that if Youshu Company is authorized, according to Article 54 of the Copyright Law, compensation for losses can be calculated based on the actual losses of the right holder, the illegal gains of the infringer, and the royalties.

According to Tan Qiao, "Tan Talks Traffic" is mainly based on public welfare and law popularization. If there is no commercial income, then there is no illegal income.

It is not easy to calculate the actual loss of the right holder, but the people's court can decide to award more than 500 yuan but not more than 5 million yuan in compensation according to the circumstances of the infringement. It is very unrealistic to pay tens of millions of yuan. 

　　According to Red Star News on the evening of the 11th, Chengdu Radio and Television Station entrusted Sichuan Junsheng Law Firm to issue a statement.

The statement stated that the relevant rights protection work was delegated to Chengdu Youshu Culture Communication Co., Ltd. The rights protection is only aimed at the company's business entities who have made improper profits without permission, not against any individual, and there is no case of "claiming tens of millions" against individuals. .

Image source: Red Star News

　　Hou Zhaohui also believes that the commercial income Tan Qiao obtained by virtue of his own fame is indirect income. There is no direct evidence to prove the relationship between "Tan Talks Traffic" and Tan Qiao's fame, and Youshu Company cannot claim for this.

Moreover, Tan Qiao also made a lot of videos and posted them on self-media.

Tan Qiao is not only because of "Tan Talks Traffic", there are also many second-generation creatives and ghosts. It is impossible to define Tan Qiao because the show "Tan Talks Traffic" is popular.

　　On the evening of the 11th, Tan Qiao responded by posting a video on Weibo again, saying that for the traffic incentive income given by the platform, including part of the income from live broadcast gifts.

Except for the necessary expenses, a proper treatment was carried out.

Screenshot from Tan Qiao Weibo

Is Tan Qiao facing jail time?

　　Hou Zhaohui believes that as to whether Tan Qiao will face 3 to 7 years in prison, according to the criminal law and relevant judicial interpretations, the illegal business volume needs to be more than 250,000 or the broadcast volume should be more than 250,000.

But if it's public welfare and it doesn't benefit from it, it's fine.

(Zhongxin Finance)