MUST’s copyright claim denied by IP Court for failing to prove public performance

 It is quite usual for claimant to conduct private investigation to collect evidence of infringement before formally filing a lawsuit. However, claimant should be careful that the evidence collected should be tailored to the burden of proof in the subsequent litigation. For example, in the setting of copyright infringement, if the claimant intends to assert unauthorized “public” broadcast, the evidence the claimant presents has to show defendant’s use of copyrighted work meets the requirement of “public” broadcast. Evidence showing Infringer’s personal and private use may not count.

 

In a recent copyright lawsuit filed by Music Copyright Society of Chinese Taipei (“MUST”) against a local restaurant for infringing MUST’s right of public performance over musical work, the IP Court denied MUST’s claim because the evidence MUST presented was unable to show there was “public performance” of musical work in the defendant’s restaurant.

 

The evidence prepared by MUST is video clips secretly recorded by unknown source, who intentionally recorded each copyrighted musical work played by every karaoke equipment in defendant’s restaurant in every dining room. The video clips clearly showed the copyrighted music was requested and played by karaoke equipment inside defendant’s restaurant, which was a public area. Nonetheless, the IP Court Judge found the recorded performance of the copyrighted music did not meet the statutory definition of “public performance” under Article 3 of Copyright Act.

 

Per the applicable Copyright Act, “Public performance means to act, dance, sing, play a musical instrument, or use other means to communicate the content of a work to a public that is present at the scene. This includes any communication to the public of an original broadcast of sounds or images through loudspeakers or other equipment.” Based on the statutory language, the IP Court Judge opined that the purpose of public performance should be “to communicate the copyrighted content to ordinary consumers”. That is to say, if the performance is deliberately arranged for “investigatory purpose”, such performance shall not be viewed as “public performance”.

 

Here, the IP Court Judge questioned the source of MUST’s video clips, which obviously were prepared by someone who visited defendant’s restaurant with intent to investigate and collect evidence, rather than to dine as ordinary consumers. As MUST was not able to come up with proper explanation in this respect, the IP Court Judge came to believe that the video clips were prepared by MUST’s staff, and the recorded performance was probably caused by MUST’s staff, not ordinary consumers. Since the performance was not made with intent to communicate the copyrighted content to the general public, it does not meet the requirement of "public performance".

 

Based on the aforesaid findings, the IP Court Judge ruled that the performances recorded in MUST’s video clips were not “public performance” as prescribed by Copyright Act. Since there was no other evidence submitted by MUST to prove defendant’s infringement, MUST’s claims were denied accordingly.

 

Source: 109-Ming-Zhu-Su No. 61 (IP Court, December 14, 2020)

https://law.judicial.gov.tw/FJUD/data.aspx?ty=JD&id=IPCV,109%2c%e6%b0%91%e8%91%97%e8%a8%b4%2c61%2c20201214%2c2