Decree of the State Council of the People’s Republic China
No. 566
Interim Measures for Payment of Remuneration by Radio and
Television Stations for Broadcasting Sound Recordings, adopted at the
62nd Executive Meeting of the State Council on May 6, 2009, are hereby
promulgated and shall be effective as of January 1, 2010.
Premier, Wen Jiabao
November 10, 2009
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Interim Measures for Payment of Remuneration by Radio
and Television Stations for Broadcasting Sound Recordings
Article 1 These Measures are formulated in accordance with the
provisions of Article 43 of the Copyright Law of the People’s Republic of
China (hereinafter referred to as the Copyright Law), for the purpose of
ensuring that copyright owners exercise their right of broadcasting in
accordance with law and facilitating broadcasting of sound recordings by
radio and television stations.
Article 2 For broadcasting published musical works, a radio or
television station may, on matters regarding the method for paying
remuneration and the amount to be paid to copyright owners, etc.,
conclude an agreement with the copyright collective administration
organization which administers the relevant rights.
A radio or television station which, for broadcasting a published
sound recording, has concluded a licensing contract with the copyright
owner, shall pay remuneration by the method and at the rates agreed in
the contract.
A radio or television station which broadcasts a published sound
recording (hereinafter referred to as broadcasting a sound recording)
without permission from the copyright owner, as provided for in Article
43 of the Copyright Law, shall pay remuneration to the copyright owner
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in accordance with these Measures.
Article 3 The term “broadcasting” in these Measures means
broadcasting for the first time, deferred broadcasting or rebroadcasting by
a radio or television station, whether by wireless means or by wire.
Article 4 For broadcasting a sound recording, a radio or television
station may conclude an agreement with the copyright collective
administration organization which administers the relevant rights on
payment of a fixed amount of remuneration to the copyright owner each
year; in the absence of such an agreement, or if it fails to reach such an
agreement, the radio or television station may consult with the said
copyright collective administration organization for payment of
remuneration to the copyright owner on the basis of one of the following
methods:
(1) the amount of payment shall be calculated by deducting, as the
cost, 15% of the advertising income of that station or of each channel or
frequency of that station in the current year, and then multiplying the
remainder by the rate of payment provided for in Article 5 or 6 of these
Measures; or
(2) the amount of payment shall be calculated by multiplying that
station’s total time for broadcasting sound recordings in the current year
by the rate of payment for a unit time provided for in Article 7 of these
Measures.
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Article 5 Where it is determined to calculate the amount of
remuneration paid to a copyright owner by the method provided for in
subparagraph (1) of Article 4 of these Measures, the amount of
remuneration shall, for five years beginning from the date on which these
Measures become effective, be paid at the following rates after
consultation:
(1) where the ratio between the time for broadcasting sound
recordings and the total time for broadcasting programs (hereinafter
referred to as the ratio of broadcasting time) of a given station or of the
channel or frequency of that station is less than 1%, the rate of payment
shall be 0.01%;
(2) where the ratio of broadcasting time is not less than 1% but less
than 3%, the rate of payment shall be 0.02%;
(3) where the ratio of broadcasting time is not less than 3% but less
than 6%, the rate of payment shall be 0.09% to 0.15%; whenever the ratio
rises by 1%, the rate of payment shall increase by 0.03% accordingly;
(4) where the ratio of broadcasting time is not less than 6% but not
more than 10%, the rate of payment shall be 0.24% to 0.4%; whenever
the ratio rises by 1%, the rate of payment shall increase by 0.04%
accordingly;
(5) where the ratio of broadcasting time is more than 10% but less
than 30%, the rate of payment shall be 0.5%;
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(6) where the ratio of broadcasting time is not less than 30% but less
than 50%, the rate of payment shall be 0.6%;
(7) where the ratio of broadcasting time is not less than 50% but less
than 80%, the rate of payment shall be 0.7%; or
(8) where the ratio of broadcasting time is not less than 80%, the rate
of payment shall be 0.8%.
Article 6 Where it is determined to calculate the amount of
remuneration paid to a copyright owner by the method provided for in
subparagraph (1) of Article 4 of these Measures, the amount of
remuneration shall, beginning from the date on which five years expire
after these Measures become effective, be paid at the following rates after
consultation:
(1) where the ratio of broadcasting time is less than 1%, the rate of
payment shall be 0.02%;
(2) where the ratio of broadcasting time is not less than 1% but less
than 3%, the rate of payment shall be 0.03%;
(3) where the ratio of broadcasting time is not less than 3% but less
than 6%, the rate of payment shall be 0.12% to 0.2%; whenever the ratio
rises by 1%, the rate of payment shall increase by 0.04% accordingly;
(4) where the ratio of broadcasting time is not less than 6% but not
more than 10%, the rate of payment shall be 0.3% to 0.5%; whenever the
ratio rises by 1%, the rate of payment shall increase by 0.05%
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accordingly;
(5) where the ratio of broadcasting time is more than 10% but less
than 30%, the rate of payment shall be 0.6%;
(6) where the ratio of broadcasting time is not less than 30% but less
than 50%, the rate of payment shall be 0.7%;
(7) where the ratio of broadcasting time is not less than 50% but less
than 80%, the rate of payment shall be 0.8%; or
(8) where the ratio of broadcasting time is not less than 80%, the rate
of payment shall be 0.9%.
Article 7 Where it is determined to calculate the amount of
remuneration paid to a copyright owner by the method provided for in
subparagraph (2) of Article 4 of these Measures, the amount of
remuneration shall be paid at the following rates after consultation:
(1) the rate of unit-time payment by radio stations shall be 0.30 yuan
per minute; or
(2) the rate of unit-time payment by television stations shall be 1.50
yuan per minute for five years beginning from the date on which these
Measures become effective, and shall be 2 yuan per minute from the date
on which five years expire after these Measures become effective.
Article 8 Where a radio or television station, for broadcasting
sound recordings, fails either to reach an agreement with the copyright
collective administration organization which administers the relevant
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rights, on payment of a fixed amount of remuneration, or to decide on,
through consultation, the remuneration payable, as provided for in Article
4 of these Measures, it shall determine the amount of remuneration to be
paid to the said copyright collective administration organization by the
method provided for in subparagraph (1) of Article 4 and at the rates
provided for in Article 5 or 6 of these Measures.
Article 9 Where a radio or television station rebroadcasts sound
recordings broadcasted by another radio or television station, the time for
rebroadcasting sound recordings shall be calculated at 10% of the actual
time for such rebroadcasting.
Article 10 The amount of remuneration to be paid by the method
provided for in these Measures to the copyright owners by radio or
television stations in the central regions shall, for five years beginning
from the date on which these Measures become effective, be 50% of the
amount calculated in accordance with the provisions of these Measures.
The amount of remuneration to be paid by the method provided for
in these Measures to the copyright owners by radio or television stations
in the west regions and by all the specialized channels or frequencies
throughout the country which broadcast programs specially for children,
ethnic minorities or rural areas shall, for five years beginning from the
date on which these Measures become effective, be 10% of the amount
calculated in accordance with the provisions of these Measures; and it
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shall, beginning from the date on which five years expire after these
Measures become effective, be 50% of the amount calculated in
accordance with the provisions of these Measures.
Article 11 The finance department of a people’s government at or
above the county level shall make the expenditure on paying
remuneration to copyright owners for broadcasting sound recordings by a
radio or television station established by the people’s government at the
corresponding level one of the factors in verifying its revenue and
expenditure, which the said department shall, in light of the local
financial conditions, take into overall consideration and for which it shall
make comprehensive arrangements.
Article 12 With respect to payment of remuneration to copyright
owners, a radio or television station shall take a calendar year as the
period of account.
A radio or television station shall, in the first quarter of each year,
deliver the remuneration payable in the previous year to the copyright
collective administration organization, which shall transfer the same to
copyright owners.
When paying remuneration to copyright owners through the
copyright collective administration organization, a radio or television
station shall provide it with such information as the titles of the works
which it broadcasts, the names or titles of the copyright owners and the
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broadcasting time, unless the parties have agreed otherwise.
Article 13 Where a radio or television station, for broadcasting
sound recordings, fails to pay remuneration to copyright owners who are
not members of the copyright collective administration organization
which administers the relevant rights, it shall, in accordance with the
provisions of Article 12 of these Measures, deliver the remuneration
payable to the said copyright collective administration organization,
which shall transfer the same to the copyright owners.
Article 14 Apart from the provisions of these Measures, the
relevant provisions of the Regulations on Copyright Collective
Administration shall apply where the copyright collective administration
organization transfers remuneration to copyright owners.
Article 15 After delivering the remuneration payable to copyright
owners to the copyright collective administration organization in
accordance with the provisions of these Measures, a radio or television
station shall bear no liability for any dispute between the copyright
collective administration organization and copyright owners.
Article 16 Where a dispute arises over the remuneration paid in
accordance with the provisions of these Measures between a radio or
television station and the copyright owners or the copyright collective
administration organization, either party may bring civil proceedings in a
people’s court in accordance with law or apply to an arbitration body for
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arbitration under a written arbitration agreement reached between the
parties.
Article 17 These Measures shall be effective as of January 1,
2010.
中华人民共和国国务院令
第566号
《广播电台电视台播放录音制品支付报酬暂行办法》已经2009年5月6日国务院第62次常务会议通过，现予公布，自2010年1月1日起施行。
总 理 温家宝
二○○九年十一月十日
《广播电台电视台播放录音制品支付报酬暂行办法》
第一条 为了保障著作权人依法行使广播权，方便广播电台、电视台播放录音制品，根据《中华人民共和国著作权法》（以下称著作权法）第四十三条的规定，制定本办法。
第二条 广播电台、电视台可以就播放已经发表的音乐作品向著作权人支付报酬的方式、数额等有关事项与管理相关权利的著作权集体管理组织进行约定。
广播电台、电视台播放已经出版的录音制品，已经与著作权人订立许可使用合同的，按照合同约定的方式和标准支付报酬。
广播电台、电视台依照著作权法第四十三条的规定，未经著作权人的许可播放已经出版的录音制品（以下称播放录音制品）的，依照本办法向著作权人支付报酬。
第三条 本办法所称播放，是指广播电台、电视台以无线或者有线的方式进行的首播、重播和转播。
第四条 广播电台、电视台播放录音制品，可以与管理相关权利的著作权集体管理组织约定每年向著作权人支付固定数额的报酬；没有就固定数额进行约定或者约定不成的，广播电台、电视台与管理相关权利的著作权集体管理组织可以以下列方式之一为基础，协商向著作权人支付报酬：
（一）以本台或者本台各频道（频率）本年度广告收入扣除１５％成本费用后的余额，乘以本办法第五条或者第六条规定的付酬标准，计算支付报酬的数额；
（二）以本台本年度播放录音制品的时间总量，乘以本办法第七条规定的单位时间付酬标准，计算支付报酬的数额。
第五条 以本办法第四条第（一）项规定方式确定向著作权人支付报酬的数额的，自本办法施行之日起５年内，按照下列付酬标准协商支付报酬的数额：
（一）播放录音制品的时间占本台或者本频道（频率）播放节目总时间的比例（以下称播放时间比例）不足１％的，付酬标准为０．０１％；
（二）播放时间比例为１％以上不足３％的，付酬标准为０．０２％；
（三）播放时间比例为３％以上不足６％的，相应的付酬标准为０．０９％到０．１５％，播放时间比例每增加１％，付酬标准相应增加０．０３％；
（四）播放时间比例为６％以上１０％以下的，相应的付酬标准为０．２４％到０．４％，播放时间比例每增加１％，付酬标准相应增加０．０４％；
（五）播放时间比例超过１０％不足３０％的，付酬标准为０．５％；
（六）播放时间比例为３０％以上不足５０％的，付酬标准为０．６％；
（七）播放时间比例为５０％以上不足８０％的，付酬标准为０．７％；
（八）播放时间比例为８０％以上的，付酬标准为０．８％。
第六条 以本办法第四条第（一）项规定方式确定向著作权人支付报酬的数额的，自本办法施行届满５年之日起，按照下列付酬标准协商支付报酬的数额：
（一）播放时间比例不足１％的，付酬标准为０．０２％；
（二）播放时间比例为１％以上不足３％的，付酬标准为０．０３％；
（三）播放时间比例为３％以上不足６％的，相应的付酬标准为０．１２％到０．２％，播放时间比例每增加ｌ％，付酬标准相应增加０．０４％；
（四）播放时间比例为６％以上１０％以下的，相应的付酬标准为０．３％到０．５％，播放时间比例每增加１％，付酬标准相应增加０．０５％；
（五）播放时间比例超过１０％不足３０％的，付酬标准为０．６％；
（六）播放时间比例为３０％以上不足５０％的，付酬标准为０．７％；
（七）播放时间比例为５０％以上不足８０％的，付酬标准为０．８％；
（八）播放时间比例为８０％以上的，付酬标准为０．９％。
第七条 以本办法第四条第（二）项规定的方式确定向著作权人支付报酬的数额的，按照下列付酬标准协商支付报酬的数额：
（一）广播电台的单位时间付酬标准为每分钟０．３０元；
（二）电视台的单位时间付酬标准自本办法施行之日起５年内为每分钟１．５０元，自本办法施行届满５年之日起为每分钟２元。
第 八条 广播电台、电视台播放录音制品，未能依照本办法第四条的规定与管理相关权利的著作权集体管理组织约定支付报酬的固定数额，也未能协商确定应支付报酬 的，应当依照本办法第四条第（一）项规定的方式和第五条、第六条规定的标准，确定向管理相关权利的著作权集体管理组织支付报酬的数额。
第九条 广播电台、电视台转播其他广播电台、电视台播放的录音制品的，其播放录音制品的时间按照实际播放时间的１０％计算。
第十条 中部地区的广播电台、电视台依照本办法规定方式向著作权人支付报酬的数额，自本办法施行之日起５年内，按照依据本办法规定计算出的数额的５０％计算。
西 部地区的广播电台、电视台以及全国专门对少年儿童、少数民族和农村地区等播出的专业频道（频率），依照本办法规定方式向著作权人支付报酬的数额，自本办法 施行之日起５年内，按照依据本办法规定计算出的数额的１０％计算；自本办法施行届满５年之日起，按照依据本办法规定计算出的数额的５０％计算。
第十一条 县级以上人民政府财政部门将本级人民政府设立的广播电台、电视台播放录音制品向著作权人支付报酬的支出作为核定其收支的因素，根据本地区财政情况综合考虑，统筹安排。
第十二条 广播电台、电视台向著作权人支付报酬，以年度为结算期。
广播电台、电视台应当于每年度第一季度将其上年度应当支付的报酬交由著作权集体管理组织转付给著作权人。
广播电台、电视台通过著作权集体管理组织向著作权人支付报酬时，应当提供其播放作品的名称、著作权人姓名或者名称、播放时间等情况，双方已有约定的除外。
第十三条 广播电台、电视台播放录音制品，未向管理相关权利的著作权集体管理组织会员以外的著作权人支付报酬的，应当按照本办法第十二条的规定将应支付的报酬送交管理相关权利的著作权集体管理组织；管理相关权利的著作权集体管理组织应当向著作权人转付。
第十四条 著作权集体管理组织向著作权人转付报酬，除本办法已有规定外，适用《著作权集体管理条例》的有关规定。
第十五条 广播电台、电视台依照本办法规定将应当向著作权人支付的报酬交给著作权集体管理组织后，对著作权集体管理组织与著作权人之间的纠纷不承担责任。
第十六条 广播电台、电视台与著作权人或者著作权集体管理组织因依照本办法规定支付报酬产生纠纷的，可以依法向人民法院提起民事诉讼，或者根据双方达成的书面仲裁协议向仲裁机构申请仲裁。
第十七条 本办法自２０１０年１月１日起施行。