The Study On The Copyright Of Audiovisual Works

Compared with other types of works, the copyright issues involved in "audiovisualwork" are particularly complex. The main reason is that a number of subjects involved in theproduction of audiovisual works and the division of labor is different. Production ofaudiovisual works is the multiple efforts of the creator creation, technical staff engaged intechnical work and support staff and investors responsible for putting up funds. Copyrightinterests involved in an audiovisual works are complex and mixed. What is creative labor?These will determine who is author of audiovisual works. Investors or creatorsWho should enjoy and exercise the copyright will determine the ownership of audiovisualworks copyright;The relationship between existing works and audiovisual works isdeductive or cooperation directly affect the rights of both;the divide of boundaries betweenaudiovisual copyright and public domain directly determines the scope of free use;Iit is alegal problem needed to be sorted out that the performer is the creator of an audiovisual workor the neighboring rights body regarding the assignment of rights between he and theproducer of audiovisual works. Therefore, the paper is a systematic research about theaudiovisual works combining with China’s "Copyright Law", and chooses the angle from themain interests involved in audiovisual distribution works. In addition to the introduction ofthis article, it still has six chapters.The first chapter discusses the evolution of audiovisual works from movies to film works,and analyses why the film was included in protection of the copyright law. Audiovisual worksis a concept that evolved from the film, the emergence of the concept of the movie is based onthe movie works into copyright law. As to the principles of technology neutral, concise text,and inclusive, taking the expression of specific aspects of the work in consideration,audiovisual works should be defined as " a series associated with each other (with or withoutaccompanying sound)" Video composition, with the appropriate technical means availablefor visual and auditory (if any sound) perception works. Film was introduced in CopyrightAct through a long wait, which is the result of capital investment and return issues notoriginality. Of course, the real reason that film can be introduced into the Copyright Act ratherthan other sectors is relevant to the originality of audiovisual works. It is relation of inclusionbetween audiovisual works and films, in addition to films, audiovisual works also include television works, video works, and even video products.The second chapter studies the determination of authors of audiovisual works. In general,whether national or national copyright laws provide that authors’ original copyright belongs tothe author.T herefore, the determination of the authorship of audiovisual works is the keyfactor to determine the ownership of copyright. By studying abroad legislation, the author canbe based on the creation and also be based on fund. Among them, the authors rights lawcountries are generally impacted by the French Romantic aesthetics and the German classicalphilosophy, which maintains that "works reflect personality," universal adherence to the "principle of the creation of man," the authors actually engaged in the work of creationmulti-fingered man. However, there are numerous creative people involved in audiovisualworks, determining the creator of audiovisual works is not easy. There are three main modesin State law to determine the authorship of audiovisual works，which have advantages anddisadvantages: limited enumerated type, open type and negative type list. Comparatively, thecopyright law of the state for audiovisual works more easily, considering the principles foreconomic benefits, funded mainly limited range of people. However, taking our legaltradition, the author of the particularity of audiovisual works and to respect the creative workinto consideration, our country shall learn the right method of determining the national openenumeration mode of audiovisual works.Firstly, China’s legislative system of copyright iscloser to authors’ rights law countries’, and there will not be barriers in theory and logic toapply the legislative model of national rights law. Our copyright legislation always adheres to"who create works, who is author" and " the principle of the creative." Even if we have a legalperson is regarded as the author, but the authors of audiovisual works has always been theactual creators, rather than legal person not involving in the creative labor. Secondly, thereare significant differences between audiovisual works and other works, including the laborinvolved in many creative people engaged in various forms of creation, for some " creative"trait significantly less controversial and generally can be directly determined by the way theauthor cited exemption from proof of tired identity.Furthermore, the direct approach todetermine the audiovisual authors reflect on the full respect for creation and maintenance staffworking on the creation of interests, which consists with the purpose of copyright law--toencourage advocacy work creation. Also, the author of audiovisual works clearly listed shouldinclude director, screenwriter, the authors of musical works and photographers specificallycreated for audiovisual works. It is because that the director is of a class of non-controversial regardless of authorship or copyright law countries. The director plays a more important rolein creation of audiovisual works, transforming the language of the script for each scene intoan image with its artistic expression, and changing the image into audiovisual works. It isself-evident to list the director of an audiovisual work as author, which is also conforming tothe international legislative practices. About screenwriter, China’s " Copyright Law " isdifferent from Germany and Japan whose screenwriter can own the rights of the author ofaudiovisual works can have conferred by the law, and our cooperation works include workscan be separated, in this case, the screenwriter of audiovisual works regarded as the author isnecessary, and there are no institutional barriers. For the author of music works specificallycreating for audiovisual works because of the use of relatively broad concept of cooperativework, he will be listed as the author of audiovisual works based on legal basis. As aphotographer, using enumeration in the legislation should take into account the representation,selectivity, in order to legislate rigorous, comprehensive, and therefore he should be classifiedas the author of audiovisual works.The third chapter explores the ownership of the copyright of audiovisual works from theJurisprudence and promotion of industrial development. From a global perspective, copyrightlaw countries focus on the protection of the works, from a pragmatic way, the work isregarded as a purely property, encouraging investment, the copyright belongs to the producer.And in the author’s rights countries, author is in the first place, generally copyright attributedto the author. According to Locke labor theory of property rights, intellectual creators paidlabor, should be enjoyed the copyright. Hegel’s theory of personality the property is linkedwith the personality that people only in the event of property relations with the outside of athing can become a true himself. Author creating works to become a true himself, the worksare required to be controlled, such control is the property.Therefore, only the author can enjoythis economic rights. The incentive theory holds the copyright should be given to the objectcan play main utility, considering efficiency factors and maximize the benefits copyrightwould be given producers. In fact, incentive creation and investment incentives are noteither-or relationship, but prosperity, a loss for both sides of the relationship. Aware of this, indetermining the ownership of copyright will not wander between encouraging investment andthe creation of incentives and conduct a difficult choices and exclude strong investmentincentives utilitarian colors. Therefore, in order to promote the development of theaudiovisual industry and encourage investment and respect for creation, the ownership of copyright in audiovisual works may be attribute the producer and the sharing revenue shouldbe protected. To do this, you should first identify the author as creator of audiovisual worksand establish creators’ benefit-sharing mechanisms; secondly, giving the producer ofaudiovisual works copyright. Again, learn from Japan and France’ the mode of determing theownership of the copyright of audiovisual works and rationalize the logical relationshipbetween authors and filmmakers and the copyright of audiovisual works should be transferredto the producer through constructive way.Chapter IV re-examines the relationship between works and audiovisual works. In thecreative process, audiovisual works need use a lot of existing work. Examine nationallegislation as well as the academic point of view, some see the relationship between theexisting works and audiovisual works as deductive relationship, some see the relationshipbetween two partners as partnerships. In fact, it is not a single deductive relation orpartnership because on the one hand in order to produce audiovisual works and the use ofexisting work (such as copying, interpretation) is not the same, on the other hand eachcountry in defining the joint work is not complete consistent. The complexity of usingexisting of the work has already decided the complex relationship between the two parties.Even for defining cooperation works exactly is the same, the relationship between existingwork and audiovisual works may not be exactly the same, so there are both deductiverelationship and replication relationship. Given the different legal relationship between theexisting works and audiovisual works, there should be distinction between original works andworks and material works given different rights.The fifth chapter analyzes the boundaries of copyright of audiovisual works, explores thestarting point of free use for users. Firstly, for the time borders of audiovisual works’copyright. Considering the prosperity of the public domain,50years‘protection isundoubtedly more appropriate than70years’ protection. Given the large number of parties ofaudiovisual works and difficult to determine, selecting the life of several types staff ofaudiovisual works as the basis for calculating copyright protection period as a general rule ismore applicable andconcise. Secondly, through researching the protection of televisionprograms mode, analyses the boundary between idea and expression of audiovisual works.Even though TV program mode designed sufficiently specific or exhaustive can be identifiedas the "expression" in theory and subject to copyright protection, drawing a boundary betweenideas and expression in practice is not easy. Again, explores the space boundary of audiovisual works copyright by parody example. Considering the long-term interests toprotect freedom of expression of the public, parody should not be banned works of parody,.But the use of parody must be limited to the extent necessary. To the necessary extent, it canbe reminiscent of the original work, however, it is obviously to let people know there is a newwork. People will not confuse them. Itwill not harm the interests of the original work. It is thecore elements to determine parody constituting fair use. However, delineating the necessaryrange is not easy. The law has no fixed standard reference. It needs judges ‘discretion.Chapter VI combining with "Beijing Treaty on Audiovisual Performances" to study theproperty and ownership of performers’ rights of audiovisual works. In the countries whose lawproviding copyright and neighboring rights the actor’s performances usually protected byneighboring rights, with little to copyright protection. Under normal circumstances, if theactor paid original labor in the show, the actors can only choose one in the middle ofcopyright and neighboring rights to be protected and can not enjoy the protection of twodifferent rights. Although some actors especially the main actors in the audiovisual workinfluence the creation, few countries expressly enumerated the identity of the creator of theactors in the form of legislation and infer the possibility of actors through broad legislativemodel. The performer of audiovisual works should be given to the protection of neighboringrights. On the one hand it due to the existence of copyright and neighboring rights. On theother hand, while not denying that some performers paid original labor in the interpretationof audiovisual works, first of all, paying the original work, after all, are just a handful. Evengiving these performers the authorship of audiovisual works, these performers also will not beentitled to more protection of the interests. Moreover, performers’ job is to perform ratherthan create. Giving its authorship for a little creative work would make it upside down. Forthe purposes of audiovisual performers ‘exclusive economic rights,"Beijing Treaty onAudiovisual Performances" has little effect on China’s Copyright Law modify. Since the draftamendment deleting the "video product" requirement to be classified among audiovisualworks which led to some video products enjoying the rights "to copy, distribute anddisseminate" will lose these rights. This results in a lack of fairness. Therefore, we canconsider the rights of performers who belong to the producers only limited to performers offilms and a method analogous to cinematography creative works, other performances ofaudiovisual works such as "video product" not affected by this limit still retain the full rightsof performers.