The Curious Case of Bernado’s Bistro and the Ballad of the Background Beats
In the culinary heart of Cocopark, Shenzhen, where the scents of sizzling garlic and fresh basil waft through the air, Bernado’s Italian restaurant stood as a beacon of authentic cuisine. A veritable Eden of edibles, where the meatballs were rounder and juicier than the moon on a clear night, the lasagnas were stacked with more layers than the city’s skyline, and the steaks were as tender as a love song in a serenade.
To dine at Bernado’s was to taste la dolce vita itself, but you’d need the patience of a saint and the foresight of a fortune teller—a reservation was as coveted as a golden ticket in a chocolate bar, requiring a week’s advance notice.
But, oh! The green-eyed monsters of the restaurant realm! Bernado’s gastronomic rivals, with their noses pressed against the foggy windows of envy, sought to mimic the maestro’s masterpieces. They attempted to replicate his recipes and ambiance, but their efforts crumbled like overcooked biscotti.
“Make it or break it,” they muttered, and break it they would try. One rival, shrouded in the cloak of anonymity, embarked on a mission as ambitious as climbing Mount Everest in slippers. They summoned the powers of every official department they could think of—the fire department, the administration of industry and commerce, market supervision administration, and, in a twist no one expected, the China Musician’s Association.
Surely, they thought, Bernado must be dancing on the wrong side of some rule. And dance he did, but it was the China Musician’s Association that called the tune. The issue? A discordant note in the symphony of Bernado’s success—the background music had struck a false chord with broadcasting rights.
Bernado was gobsmacked, jaw dropped like a fallen soufflé. He had paid for the music, not swiped it from the pirate-laden depths of the internet. How could his legally acquired tunes play him into legal dissonance?
Law In A Minute
Playing a song as background music in a restaurant requires explicit authorization from the song’s creator. Merely purchasing the CD, or acquiring the music through services like Apple Music, does not grant the necessary rights. To legally play music in a commercial setting, one must secure a license and pay a fee to the China Musicians’ Association.
It’s also important to note that renting out music or uploading it to the internet constitutes a violation of the author’s copyright. Indeed, all the music you hear in public spaces such as airplanes and coffee shops, including those like Starbucks, is legally played because the appropriate royalties have been paid.
Should you wish to avoid such fees, you have the option to use “public domain music” for background ambiance, such as the nocturnes of Chopin, the sonatas of Mozart, or the rhapsodies of Liszt. Be aware, however, that more contemporary pieces, like Queen’s “Bohemian Rhapsody,” do not fall into this category.
Nevertheless, you are free to enjoy music at home with friends after purchasing a CD, as this is considered “fair use” and does not require additional licenses or fees.
Legal Basis
Copyright Law
Article 10
Copyright includes the following personal rights and property rights:
(1) the right of publication, that is, the right to decide whether to make a work available to the public;
(2) the right of authorship, that is, the right to claim authorship in respect of, and to have the author’s name mentioned in connection with, a work;
(3) the right of revision, that is, the right to revise or authorize others to revise a work;
(4) the right of integrity, that is, the right to protect a work against distortion and mutilation;
(5) the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work, or by other means;
(6) the right of distribution, that is, the right to provide the original copy or reproductions of a work to the public by selling or donating;
(7) the right of rental, that is, the right to authorize others to use temporarily a cinematographic work or a work created by a process analogous to cinematography, or computer software, except where the software itself is not the essential object of the rental;
(8) the right of exhibition, that is, the right to publicly display the original copy or reproductions of a work of the fine arts or of a photographic work;
(9) the right of performance, that is, the right to publicly perform a work, and to publicly communicate the performance of a work by any means or process;
(10) the right of presentation, that is, the right to publicly present a work of the fine arts, a photographic work, a cinematographic work, a work created by a process analogous to cinematography, or other works, by projector, slide projector or any other technology or instrument;
(11) the right of broadcasting, that is, the right to broadcast a work or disseminate it to the public by any wireless means, to communicate the broadcast of a work to the public by wire or by rebroadcasting, and to publicly communicate the broadcast of a work by loudspeaker or any other analogous instrument transmitting signs, sounds or images;
(12) the right of communication through information network, that is, the right to make a work available to the public by wire or by wireless means, so that people may have access to the work from a place and at a time individually chosen by them;
(13) the right of cinematography, that is, the right to fix an adaptation of a work in a medium by cinematography or a process analogous to cinematography;
(14) the right of adaptation, that is, the right to change a work into a new one with originality;
(15) the right of translation, that is, the right to change the language in which the work is written into another language;
(16) the right of compilation, that is, the right to compile by selection or arrangement preexisting works or passages therefrom into a new work; and
(17) other rights to be enjoyed by copyright owners.
Copyright owners may authorize others’ exercising of the rights provided for in Subparagraph (5) through Subparagraph (17) of the preceding paragraph and receive remuneration in accordance with the terms of contracts or the relevant provisions in this Law.
Copyright owners may transfer, wholly or in part, the rights provided for in Subparagraph (5) through Subparagraph (17) of the first paragraph in this Article and receive fees in accordance with the terms of contracts or the relevant provisions in this Law.
Article 22
In the following cases, a work may be used without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner in accordance with this Law are not prejudiced:
(1) use of another person’s published work for purposes of the user’s own personal study, research or appreciation;
(2) appropriate quotation from another person’s published work in one’s own work for the purpose of introducing or commenting a certain work, or explaining a certain point;
(3) unavoidable inclusion or quotation of a published work in the media, such as in a newspaper, periodical and radio and television program, for the purpose of reporting current events;
(4) publishing or rebroadcasting by the media, such as a newspaper, periodical, radio station and television station, of an article published by another newspaper or periodical, or broadcast by another radio station or television station, etc. on current political, economic or religious topics, except where the author declares that such publishing or rebroadcasting is not permitted;
(5) publishing or broadcasting by the media, such as a newspaper, periodical, radio station and television station of a speech delivered at a public gathering, except where the author declares that such publishing or broadcasting is not permitted;
(6) translation, or reproduction in a small quantity of copies of a published work by teachers or scientific researchers for use in classroom teaching or scientific research, provided that the translation or the reproductions are not published for distribution;
(7) use of a published work by a State organ to a justifiable extent for the purpose of fulfilling its official duties;
(8) reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery, etc. for the purpose of display, or preservation of a copy, of the work;
(9) gratuitous live performance of a published work, for which no fees are charged to the public, nor payments are made to the performers;
(10) copying, drawing, photographing or video-recording of a work of art put up or displayed in an outdoor public place;
(11) translation of a published work of a Chinese citizen, legal entity or other organization from Han language into minority nationality languages for publication and distribution in the country; and
(12) transliteration of a published work into braille for publication.
The provisions of the preceding paragraph shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.