Jukeboxes are fairly common fixtures of dining and drinking establishments that enable customers to select songs to be played. If the musical works loaded onto the jukeboxes are not authorised by the copyright owners, the act of making the jukeboxes available to unspecified persons may infringe the public performance rights of the musical works.
In practice, in order to prove that a musical work has been selected and played on a jukebox, copyright owners would often send staff to a business's premises to select the musical work in question to be played and collect evidence via photography, sound recordings, video recordings and other similar methods. However, a judgment rendered by the Taiwan Intellectual Property Court on 28 January 2021(1) ruled that when a copyright owner or agent carries out the action of selecting and playing unauthorised songs on the jukebox for the purpose of evidence collection, this does not constitute a public performance.
In this case, the plaintiff was the exclusive licensee of the seven songs in dispute. According to video recordings and screenshots made in the defendant's dining and drinking establishments, the songs in dispute were loaded onto a jukebox in an unauthorised manner and performed publicly by those present.
The plaintiff claimed that the video recording was provided by an anonymous enthusiast. However, this claim was belied by a voiceover at the beginning of the video recording by the person doing the filming, which stated: "On April 23, 2018, I'm now in Jin Xiang Jin [the name of the defendant's establishment], and I start the video recording." The anonymous enthusiast, to prove that people were singing the songs in dispute via the jukebox located in the defendant's dining and drinking establishment, or that people were going to do so, would enter the specific booth with video equipment and record the songs being played by the jukebox and sung by the patrons.
According to the timestamps on the video recording, the time taken to record the performance of the seven songs in dispute was around 33 minutes. Considering that songs are typically around three to five minutes in length, it defies credibility to suppose that all seven songs could have been played consecutively unless they had been intentionally selected for the purpose of evidence collection. Given that thousands, or even tens of thousands, of songs may be loaded onto a jukebox, how could the anonymous enthusiast have known that the songs in dispute were loaded onto the jukebox? How could the enthusiast select and play them consecutively while recording the songs being sung within 33 minutes? Common sense would dictate that the anonymous enthusiast obviously knew that the seven songs were managed by the plaintiff. It should be the plaintiff, not a general consumer, who should select and play the seven songs in dispute on the jukebox for the purpose of evidence collection or commission someone else to do so.
The Taiwan Intellectual Property Court stated as follows:
The jukebox placed in the defendant's dining and drinking establishments is certainly loaded with the songs in dispute, and is available for unspecified customers to sing karaoke. However, this action merely puts the songs in dispute in a state where customers can choose and play them on the jukebox, not an act of public performance regulated by the Copyright Act. Moreover, as the plaintiff commissioned a certain anonymous enthusiast to choose and play the songs in dispute consecutively on the jukebox for the purpose of evidence collection, the plaintiff already agreed or authorized the anonymous enthusiast, not an uninformed consumer, to choose and play the songs in dispute on the jukebox. That is to say, as the plaintiff failed to prove that the defendant communicated the songs in dispute to the public by the methods stipulated in Article 3, Paragraph 1, Subparagraph 9 of the Copyright Act and infringed the plaintiff's economic rights of the songs in dispute via public performance, the plaintiff's assertion of the defendant's infringement is void and not adoptable.
For further information on this topic please contact Hsiu-Ru Chien or Frank Lee at Lee and Li Attorneys at Law by telephone (+886 2 2763 8000) or email ([email protected] or [email protected]). The Lee and Li Attorneys at Law website can be accessed at www.leeandli.com.