Study On Audiovisual Performers’ Rights

The evolution of copyright or author’s rights is the history of the enlargement of statutory rights. The development of digital techonologies has made the audiovisual performers lose the control of their performance further. Compared to producers of audiovisual fixations, the status of negotiation of audiovisual performers is weak. It is meaningful practically for audiovisual performers to acquire effective protection through exclusive rights.The subject of audiovisual performers’ rights is audiovisual performer. The object is audiovisual performance. In international treaties, performer is defined as actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expression of folklore. Different domestic laws choose different legislative modes, such as in a comprehensive way or in an enumerated way. International treaties never define audiovisual performance. Domestic laws have different understanding of the content of performance and the subject of performance. The difference between audiovisual performance and audio performance does not lie in the live performance, but depends on the medium of fixations. Live performance and the performance fixed in audiovisual fixations are audiovisual performance. Some countries don’t make distinction between the protection of audio performers and that of audiovisual performers.The domestic legislation of performers’ rights is much later than that of authors’ rights. In domestic laws, the existing modes of protection of audiovisual performers are not sufficient to defend their interests. First, the protection is offered by copyright or neighboring rights. For instance, the provisions based on the principle of work for hire and the provisions of anti illegal fixation of live performance, the possibility of acquiring the protection of performers is slim. Neighboring rights are designed by civil law countries, which make it clear that performance can not meet the standard of originality of authors’rights. After the evolution of the legislation of civil law countries such as Germany and France, those countries provide the neighboring rights to protect performers which are exclusive rights. EU advocates the equal protection of audio performers and audiovisual performers. However, there are differences in the system. Domestic laws in some countries never provide protection for audiovisual performers. Even by exclusive rights, the protection by copyright and neighboring rights is flawed. Second, there is protection provided by right of publicity, personality rights, unfair competition law, contract law and etc. The right of publicity applies narrowed and conflicts with the copyright. Personality right is more suitable for defending against general tort. Unfair competition law has expanded irrationally. Contract law is restricted by the privity of the contract. These modes of protection are not effective. Third, collective management of audio performers’ rights has some proplems to resolve like the low efficiency, monopoly and narrow applicability.Internatioanl treaties do not provide enough protecton to audiovisual performers either. Article 19 in Rome Convention excludes the protection of performance fixed in audiovisual fixations. TRIPs agreement makes slight variations. WIPO Performances and Phonograms Treaty merely protects audio performers. Audiovisual performers are neglected all the time caused by many reasons. In the end, Beijing Treaty on Audiovisual Performances was concluded. If the treaty takes effect, it could be treated as the symbol of establishing international protection of audiovisual performers. But the rights conferred by the treaty are imperfect.The traditional theoretical basis of audiovisual performers’rights includes natural rights theory, incentive theory. Natural rights theory circles around Locke’s labor theory and Hegel’s theory of personality, which stresses the inherent nature and explains the existence of the objects of authors’ rights which are related closely to persons. It is adored by civil law countries, especially is used to found the moral rights. However it can’t follow the expansion of authors’ rights in modern times. Common law countries adopt incentive theory. Incentive theory based on the economic theory which does the analysis according to cost-benefit analysis uses property rights to stimulate personal creativity and promote social benefits. It is irrational because it excludes other factors except economic aspects. Natural rights theory and incentive theory are the most widely recognized theories of intellectual property which have certain values. However, they are not the specific theoretical basis of audiovisual performers’ rights.The theory of balance of interests should also be included as the theoretical basis. The theory of balance of interests is interpreted in the rationale because balance of interests is substantial to justify audiovisual performers’ rights. The reassessment of the rights should be required in order to certify the justification when interests’pattern changes. The justification of audiovisual performers’ rights relies on the new balance kept when imbalance of interests occurs. Being applied to audiovisual performers’ rights, balance of interests should take the protection of private rights and the weighing of public interests into condideration. The weighing of public interests is relavent with public domain, freedom of speech and the allocation of resourses.Besides, social-planning theory and newly developed theories could be treated as the theratical basis. The rationality of social-planning theory is that audiovisual performer’s rights are important to culture and democratic society. In recent years, there are some developments in theories, which include the interpretation from the angle of the relationship between copyright and automany or the relationship between copyright and speech. The theories stress the autonomy of audiovisual performers and the assurance of speech and communicative act offered by audiovisual performers’ rights.Audiovisual performers’ rights belong to neighboring rights which follows the theory of civil law countries. Because the originality of audiovisual performance can’t meet the standard of origianlity of authors’ rights, the judge of the nature of the rights is correct basically. But there are some cases in which improvisational performances could meet the requirements of being protected by author’s rights. In common law countries, for instance in U.S., although audiovisual performers are not listed among authors explicitly and in reality audiovisual performance could not be protected by copyright for certain provisions in Copyright Act, the flexible system of copyright in theory could include audiovisual performances with different levels of originality.Compared to authors’ moral rights, audiovisual performers’ moral rights are restricted. Although in some countries other moral rights are authorized, rights of claiming to be identified as performers and objecting to distortion of performance are recognized as basic rights which ensure performers’ fundamental moral rights. But the term of moral rights and whether they could be transferred or waivered are disputed. The term of moral rights should be considered by two points:first, they should not be expired during the lifetime of audiovisual performers; second, if economic rights still exist after audiovisual performers die, the term of moral rights should be last as long as the term of economic rights. Because moral rights reflect personalities of audiovisual performers, it should not be allowed to transfer moral rights. Considering about the particularity of audiovisual industries, moral rights could be waivered by express agreement in a limited way. If the waiver seriously infringes audiovisual performers’ moral rights, audiovisual performers should be allowed to terminate the waiver.The economic rights of audiovisual performers could be divided into exclusive rights and right of remuneration. Exclusive rights generally include right of fixation, broadcasting and communication to the public, reproduction, publication, rental and making available of fixed performances. Right of remuneration could be interpreted as equitable remuneration for broadcasting and communication to the public of the performances fixed in audiovisual fixations in a narrow sense and right of remuneration for all uses provided by law including equitable remuneration in a broad sense. It is more controversial for exclusive right of broadcasting and communication the performances fixed in audiovisual fixations, because some countries don’t recognize the right and replace it with equitable remuneration. Right of remuneration is very important to protect audiovisual performers’ economic rights. Right of remuneration in a broad sense should consider overall about the rights included, payers, the form of payments etc.Old balance of interests is broken in the digital era. The new balance is established to ensure the audiovisual performers’ interests and takes interests of producers of audiovisual fixations into consideration. The main guarantees are transfer of rights and limitations to moral rights. During the process of concluding Beijing Treaty on Audiovisual Performances, transfer of rights is difficult to negotiate. Four options offered by Basic Proposal in brief include transfer of rights, license of rights, no prescription and regulation by private international law. The content of Beijing Treaty on Audiovisual Performances has limited effects. In order to protect audiovisual performers’ rights, the system of rebuttable license of rights should be adopted. The limitations of moral rights should consider about the normal exploitation, technology neutrality and other factors to control the right of integrity in a moderate way. The obscure wording of limitations of moral rights may threaten the exercise of rights by audiovisual performers. Moreover, the provision regarding retrospective effect would also affect interests in existing contracts and interests’pattern. Normally the country with developed audiovisual industry would not accept the provisions applied retrospectively. However, Beijing Treaty on Audiovisual Fixations provides that countries could not make reservations about application of moral rights retrospectively.The systems used to balance public interests and private rights mainly include limitations and exceptions and exhaustion of rights. Limitations and exceptions include those of economic rights and those of technical measures and rights management information. The limitations and exceptions of audiovisual performers’ economic rights are mostly similar to those of authors’ rights, but are not exactly the same with them. It is generally accepted in domestic laws to purse public policy and use fair use or three-step test to measure limitations and exceptions. The limitations and exceptions of technical measures in U.S. are more reasonable. The limitations and exceptions of technical measures should consider about the extent and the relationship with those of copyright. The system of exhaustion of rights in copyright and neighboring rights mainly differs in the attitude towards international exhaustion of rights, which should be decided according to national and regional needs.According to Chinese copyright law, there are no difference between audiovisual performers’ rights and audio performers’ rights. The flaws are still obvious. The provisions are too simple. Certain languages are inaccurate. Compared to the lowest international standards, certain rights are not included. For instance, the content of the right of communication through information network can not cover the instances which are provided in international treaties. There are no provisions regarding transfer of rights and right of remuneration without considering about the specificity of audiovisual fixations. There are no provisions on the limitations and exceptions of performers’ rights. Since 2002 the third revision to Chinese Copyright Law was initiated. The revisions made related to the structure and the contents of Chinese Copyright Law are not enough to resolve the problems. Especially the right of communication through information network, the right of remuneration, transfer of rights and limitations and exceptions are not modified to make a breakthrough. To improve audiovisual performers’ rights, it is necessary to combine domestic laws and the need of audiovisual industry and satisfy lowest international standards.