| Performers'rights were not only the sole component of neighboring rights when the concept was still in its infancy,but also the most prominent feature of its contemporary version.However,for a prolonged period of time after the inception of performers'rights,performers whose performances were fixed in“audiovisual fixations”were actually excluded from protection at the international level.Such a state of affairs did not end until the adoption of the Beijing Treaty on Audiovisual Performances?“the Beijing Treaty”?,which finally consigned to history the absence of comprehensive protection for audiovisual performers in international treaties and conventions.With an international legal framework for the protection of audiovisual performers established and clearly defined,however,countries of the world are facing unprecedented challenges in their domestic legislation and practices relating to the audiovisual industry.The present Dissertation,which is entitled A Study of the Protection of the Audiovisual Performers'Rights and consists of 200,000 Chinese characters,is divided into five chapters.Chapter One is intended as an introduction to the present study.On the basis of a systematic inquiry into such fundamental concepts as“performances”and“performers”,as well as the context of the term“audiovisual”,this Chapter defines both the range and focal point of“protection of audiovisual performers”.Chapter Two reviews the evolution of relevant international treaties and conventions in the more than 100 years between the adoption of the Berne Convention for the Protection of Literary and Artistic Works?“the Bern Convention”?and the conclusion of the Beijing Treaty,presenting a clear picture of the evolutionary history of the protection of audiovisual performers'rights.Chapter Three explores the underlying theoretical reason for the evolution of audiovisual performers'rights from being neglected to being subject to differentiated treatment,arguing that the current skewed values and institutional design of the current regime of audiovisual performers'rights are attributable to two reasons,namely,the“hierarchical relationship”between performers'right and author's rights,which has evolved from a resultant fact into real protection standards,and the“right gap”arising from the expansion-prone character of capital.Chapter Four is intended to examine the institutions of audiovisual performers'rights and to identify and analyze the problems in such institutions.On the basis of a comparative study of the protection systems for audiovisual performers'rights in some typical countries,the subjects and objects in the formation of a protection regime for performers'rights,as well as the content of,restrictions on and exceptions to such rights are analyzed in detail.Chapter Five looks into relevant practices in China.On the basis of the Beijing Treaty and in the context of the third round of revision of China's Copyright Law,this chapter examines the development of China's cultural undertakings and practices in China's cultural industries.In so doing,this chapter focuses on the ownership of the audiovisual performers'rights and the design of the rules of the right to secondary remuneration,and then puts forward a number of proposals to improve relevant legislation in China.Chapter One:Overview of the Protection of Audiovisual Performers'Rights.In order to identify a genuinely“meaningful”research question,this Chapter takes two fundamental and core concepts,namely,"performances"and"performers",to put forward the protection of the audiovisual performers'rights as the research question and identify the focal point of research.It is argued in this chapter that with respect to the term"performances",the essential difference between the meaning of the word as a legal term and its meaning as a vernacular term decides that it is a daunting challenge to define the term in the legal sense.The two major legal systems of the world have chosen two distinctive approaches to the protection of performances,and even within the same legal system,the concept of performances in the narrow sense may differ considerably from the term in the context of neighboring rights in terms of their respective emphasis.Furthermore,the term“performances”may be interpreted in multiple ways,e.g.,as“dissemination”,“use”and even“creation”,which makes it all the more difficult the circumscribe the scope of the term.Attempts to“simplify”this thorny issue by incorporating performances into authors'rights in the narrow sense are doomed to be proven fruitless and futile.It is argued in this chapter that decoupling the protection of performances from“originality”would be a legislative option that is more favorable for performers."Whom to protect"determines both the basis and focus of a rights protection mechanism.The evolution of the social status of performers in China and the Western world shows that although performers and the works they perform are mutually fulfilling,more often than not,the performers fail to receive the same degree of respect and recognition as the authors of such works do.Due to such a failure of performers to have their fair share of the power to speak and to be heard,the protection of their rights is both slow and inadequate.It is only with the booming growth in cultural consumption that performers are starting to see their economic income and social status catch up with or even surpass those of the authors of the works they perform.Generally speaking,the scope of performers has shown a clear trend of expansion in both international conventions and domestic legislation.Interests are always a bone of contention between different stakeholders.The development of recording and communication technologies has not only changed the performers'ways of life,but also has subverted the old mechanism for the distribution of benefits among performers and investors.On the one hand,new media technologies have separated performances from performers and are widening the gap between the two;on the other hand,as audiovisual production feature“big budget”and“high risks”,leading players in the industry are enhancing the“differentiated treatment”of performers on the basis of international conventions and treaties.As the first international treaty ironed out by the World Intellectual Property Organization in the 21 century,the Beijing Treaty demonstrates intensive concerns for the allocation of benefits among the now more diversified mix of stakeholders,including producers and audiovisual performers,in the context of the phenomenal development of new audiovisual technologies and business models.As the genuine“information age”dawns,there are bound to be emerge a host of urgent issues relating to the protection of audiovisual performers'rights,as are represented by“ownership of the audiovisual performers'rights”and“the right to secondary remuneration”.Chapter Two:Historical Evolution of the Protection of Audiovisual Performers Rights.History is not just about the past;it also has a significant bearing on the present and serves as a point of reference for the future.In this chapter,a clear picture of the evolutionary history of the protection of performers'rights is obtained through a review of the five leading international conventions and treaties relating to performers'rights,namely,the Bern Convention,the Rome Convention,the TRIPS Agreement,the WIPO Performances and Phonograms Treaty(“the WPPT”and the Beijing Treaty.When the performers first sought international protection for their rights at the beginning of the 20th century,the Berne Convention,with a clear inclination toward the civil law tradition,strongly rejected the attempted trespass by other subjects in response to the vigilance and hostility of the authors of the performed works.All discussions surrounding the protection of performers'rights during the two rounds of amendments of the Convention ended fruitless;however,as a saving grace,a consensus that“it is necessary to protect the rights of performers separately from authors”was effectively established.In 1961,on the foundation laid by the Berne Convention and backed by the three leading organizations,performers finally gained a footing in an international treaty,i.e.,the Rome Convention,the first international treaty on neighboring rights.Given the fact that it was impossible to comprehensively assess the impact that emerging technologies would have on the use of works back then,the Rome Convention merely provides performers with for some non-exclusive economic protection that was extremely limited in content and inadequate in efficacy.In addition,the rather ambiguous stance that Article 19 of Convention took with respect to the film and television industry subsequently became a stumbling block hindering the protection of performers'rights,which is arguably the very source of discrimination against audiovisual performers.After the debut of audiovisual performers in asserting their rights through the Rome Convention,the performers had to live with the label of“second-class citizen”,as it were,in terms of rights protection,for a considerable period of time.Later,although the TRIPS Agreement in 1994 made little progress in formulating new rules for the protection of performers'rights,it nonetheless managed to genuinely“internationalize”the rules protecting the performers as were established by the Rome Convention within a short period of time through regulations of the World Trade Organization?WTO?.Thus,such rules,which used to be largely declaratory in nature,started to acquire real authority with the help of the TRIPS agreement.The 1996 WPPT,as an aggregate of new rules to adapt to the digital agenda and the Internet,upgraded the economic protection accorded to performers to proprietary protection,and granted the performers,among all owners of neighboring rights,even more advantages by awarding moral rights to the performers,thus ending the embarrassing“second-class citizen”status of performers in international conventions.However,due to strong opposition by the United States,drafters of the WPPT ultimately backed off from the stance they took during the preparatory stages of the treaty that"all performances should be protected",and only reached a consensus on the protection of audio performances,with the protection of audiovisual performers'rights remaining a lamentable missing link.To alleviate the ensuing sense of frustration,the WPPT drafting committee specifically adopted a“Resolution concerning Audiovisual Performers”.Then,after a post-WPPT“Long March”of 16 years and 8 sessions of conferences on different levels,the Beijing Treaty was adopted in 2012,consigning to history the prolonged absence of comprehensive protection of performers'rights.In a certain sense,the Beijing Treaty is highly inclusive and arguably"both the end and the beginning”:it not only marks the end of the long and often arduous process in which the performers sought confirmation of their rights,but also signifies a new starting point for a boom in the development of performers'rights.In addition,as the first international treaty that China signed after the founding of the People's Republic of China in 1949,the Beijing Treaty was“incorporated”into China's domestic law at such a speed and to such an extent that it actually posed challenges to the third and timely amendment of China's Copyright Law.The historical evolution of the protection of audiovisual performers'rights through international treaties and conventions,from inception in the Berne Convention and subsequent discrimination,to the inadequate protection granted by the Rome Convention as non-proprietary rights just like a“second-class citizen”in the community of rights,and ultimately to the special protection granted by the Beijing Treaty,demonstrates that the protection of audiovisual performers'rights does not come easily;such protection,as the goal for which the community of audiovisual performers have been making sustained efforts,are actually the result of interaction between a diversified mix of stakeholders in an era featuring rapid progress in communication and broadcasting technology and booming growth of the cultural industry,and therefore deserves to be cherished.Chapter Three:Theoretical Basis of the Protection of Audiovisual Performers'Rights.Theoretical pursuit is helpful for both understanding the present and predicting the future.With respect to the legitimacy of the regime for the performers'rights,the plain yet strong moral instincts of the Labor Theory established the theory as the dominant basis for the regime during its early years;the theory also managed to provide justification in natural law for the formation of the regime;for its part,the Personality Theory,which focuses on the relation between the performers and their performances,provides a reasonable explanation for the moral rights of audiovisual performers;the Incentive Theory,in turn,adopts an instrumentalist approach,and its economic analyses are conducive to streamlining and enhancing widespread acceptance by the general public of the regime of performers'rights.However,the theories do have their respective ambiguities and inadequacies and therefore are in need of continued verification and modification.By finding answers to two questions,namely,“are‘creation'and‘dissemination'classification or grading”and“does dividing the pie mean nothing but‘competition and conflict'or does it also signify‘sharing of interests',this Dissertation comes to the following conclusion:the"hierarchical relationship"?between the performers'rights and authors'rights?,which has long been taken as an absolute principle,is actually a unintended by-product of the comprehensive analogy between the performers'rights and copyrights,yet it has been upheld as a standard that determines the people's choice of values,after it is consolidated by international treaties and conventions and enhanced by domestic legislation.As the stakeholders in audiovisual performances become diversified,it is indeed a legitimate arrangement for investor to become a legal subject of performers'rights in spite of contracts on such performances and such an arrangement is actually compatible with the incentive mechanism.However,given the fact that capital is prone to expansion,once the investors turn their influence in connection with performers'rights into domineering empowerment,it is highly likely that both the values and the design of rules of the regime will deviate from their intended course.In order to avoid the erosion of the audiovisual performers'rights interests by the“hierarchical relationship”and the expansion-prone capital,it is essential for the corresponding rights system to have scientific and clear orientation in its values:first,effectively protect the audiovisual performers,specify the original ownership of the rights,address the de facto disadvantages that audiovisual performers have long been subject to so as to restore the equilibrium in the distribution pattern of rights and interests;second,on the basis of the fundamental function of the intellectual property system,namely,“to allocate the proceeds from of the sale of intellectual products on the market”,and in recognition of the diversified structure of the market,establish a reasonable relation between the performers and the investors,so as to provide a positive force for the development of relevant industries;third,the regime for the protection of performers'rights,which in nature is a recognition of productive efforts that are in line with market logic,must be conducive to promoting the development and prosperity of society and culture,and in so doing,due attention must be paid to the connection to and coordination with existing legal systems.Chapter Four:Examining the Regime for the Protection of Audiovisual Performers'Rights.This chapter is intended to look into the structure of the regime protecting audiovisual performers'rights in the context of international treaties and legislation in typical countries,and tackle one by one the generic problems relating to the formation of such a regime.It can be inferred from a comparative study of the performers'rights protection mechanisms of typical countries that common law countries mainly rely on their highly developed and sophisticated contract system to ensure the smooth allocation and transfer of benefits,while civil law countries depend more on regulations under statutes.Such a pattern is in line with people's stereotypes about the two legal systems.With the growing influence and penetration of international treaties and conventions and EU directives,there have been convergence and overlapping between the performer rights regimes of countries with different legal traditions.For example,France and Germany,both of which are typical members of the civil law family and have long been branded as followers of“individualism”and jealously defending the rights of individuals,actually fail to permit performers'rights to be tightly controlled by natural persons;on the contrary,they are more favorable toward producers,who are by no means the disadvantaged side,in the hope that they can ensure the realization and achievements of the performers'rights through a sophisticated mechanism for the realization of the right to compensation.As for the regime concerning the subjects and objects of the audiovisual performers'rights,international treaties and domestic laws have directly or indirectly set the rules.In terms of subjects,the prevailing view is that the original owner of performers'rights can only be natural persons;in addition,as can be inferred from both the numerous drafts and the final version of the part of Beijing Treaty concerning the subjects,the status of producers as subjects of the rights,who are the representatives of investors in the regime of audiovisual performers'rights,must also be given due attention and protected properly.The understanding of performances,which are the objects of the audiovisual performers'rights,should be from the perspective of“the manner of the use of the performance”.While audiovisual performances,audiovisual fixations and audiovisual works are indeed closely linked to each other,they are nonetheless distinctive from each other in terms of their respective denotations.The performers'rights can be divided into two categories in terms of their content,namely,moral rights and economic rights;and in comparison with authors'rights,the performers'rights do have some unique features in terms of their exercise and identification of infringement.In a broad sense,restrictions on and exceptions to the audiovisual performers'rights can be classified into three types,namely,restrictions based on copyright,restrictions based on the characteristics of the audiovisual industry and restrictions based on public exploitation.Chapter Five:Improving Protection of Audiovisual Performers'Rights in China.This Chapter is the conclusion of this Dissertation,and is intended to precisely analyze the difficulties faced by China's regime of audiovisual performers'rights and put forward proposals on improving the regime,on the basis of the review of the historical development and evolution of the protection of performers'rights over the years in previous chapters,in light of the protection standards in the Beijing Treaty,and on the basis of the precious opportunities brought about by the third revision of China's Copyright Law.The audiovisual performers'rights regime under China's Copyright Law,from its inception,development to improvement,has been mainly attributable to the impact of international treaties and conventions on domestic legislation,and the regime fails to fully recognize the performers'rights as exclusive rights.As existing laws in China lack specific provisions concerning the ownership and exercise of audiovisual performers'rights,protection of audiovisual performers is unduly differentiated due to the ambiguity in the borders between two types of objects,namely,“cinematographic works”and“visual recording products”:while those in visual recording products are entitled to separate and complete performers'rights,performers in cinematographic works are only entitled to authorship and remuneration,which is tantamount to degrading the proprietary rights of audiovisual performers.In view of this,this chapter proposes an overall scheme for improving China's audiovisual performers'rights protection regime in the context of the Beijing Treaty and the third round of amendment of China's Copyright Law.This scheme,which takes into consideration both China's stance on the issue and international practices,envisions that the protection regime should adopt as its top goal to“raise the level of protection granted to audiovisual performers'rights”on the precondition that proper consideration must be given to the rights of producers;in terms of the design of protection rules,special attention must be paid to advocating the idea of autonomy of the will,and the exercising of rights must be subject to the principle of“priority to contracts”;in addition,emphasis should also be placed on the arrangement supporting the realization of rights and connection and coordination with relevant legal rules and institutions.“Ownership of rights”and“right to secondary remuneration”are at the very center of the protection of audiovisual performers'rights.In view of this,the third revision of China's Copyright Law provides an innovative institutional arrangement for the ownership of performers'rights on the basis of the first and second drafts of the third round of amendment to China's Copyright Law and Article 12 of the Beijing Treaty on the transfer of rights.On the basis of an analysis of relevant discussions and studies on the amendment,this Dissertation comes to the conclusion that in the amended Copyright Law,the application of the provision that performers'rights“shall be owned by the producer in accordance with law”should be limited,the risks that the interests of performers of non-film-and-television works are subject to must be assessed in light of the notion of“audiovisual works”,and provisions concerning the moral rights of performers should be modified.As for issues relating to“the right to secondary remuneration”,which has been the focus of heated debates,this Chapter,on the basis of a clarification of such concepts as“secondary use”and“right to secondary remuneration”,reviews and analyses the numerous concerns of opponents to the right,and firmly advocates the necessity of introducing the right to secondary remuneration into China's copyright law and proposes a preliminary institutional framework for the right. |
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