Studies On Rental Rights

With the rapid technical development and the revolution of transmitting technology ,the new work form, the storage method and cultural works with various kinds of carrier and content massively emerge . The audio and video product and the computer program market progressed by leaps and bounds in particular, causing a brand-new revolution in copyright domain. In 1980, the large-scale commercial renting of the audio and video product firstly appeared in Japan ,even affecting the sale of American audio and video product in Japan. In 1981 the audio and video renting also appeared within the US territory .In the 1980s,the popularization of compact disc memory and digital memory made audio and video renting and duplication more convenient, work renting industry developed swiftly and violently. At present, the work renting has the tendency of substituting for work selling all over the world.On the one hand prosperous work renting business increased the income of renting businessmen,on the other hand work renting caused the depression of work circulating industry, causing authors to lose heavily ,who depend on royalties for a living .Therefore, the United Nations Educational, Scientific and Cultural Organization announced two constructive principle and the supplementary ideas in 1984, its aim mainly lies in the confirmation of rental rights. The TRIPS agreement concluded on December 15, 1993 has specially confirmed the rental rights. WCT and WPPT concluded in 1996 explicitly stipulate rental rights.As can be seen from the above statement, rental rights are products of the digital era with the purpose of recovering the balance between the copyright holder and the copyright user, compensating copyright owner for loss arising from the use of the new disseminating technology in the society. Since the 1980s ,the rental of record or cinematographic works has become widespread in many countries ,this form of use of work prohibit the author from realizing the full value of a copy of the work.In addition,software manufacturers had been unable to develop adequate safeguards to prevent illegal copying ,which seriously influences work release and sale and causes the author to suffer the huge economic loss.In response to this situation ,more and more counteies and international organizations establish rental rights. TRIPS negotiations recognizes a rental right for copyright owners,which is the first explicit global agreement on such a right. Moreover,World Intellectual Property Organization (WIPO) concluded two treaties related to rental rights: the WIPO Copyright Treaty (WCT) and the WIPO Performers and Phonograms Treaty (WPPT).Various countries started to collaborate with the WIPO treaties to revise the traditional copyright law ,protecting rental rights. Regardless, each country has differenct legislation standards due to their individual consederation .Nowadays, A rental right is more commonly recognized in a variety of different forms in both domestic law and international agreements.A rental right can be defined that the copyright owner or neighboring right owner enjoy whether renting or whether permitting other people to rent works and enjoy its benefits,which is an exclusive right. The work should be defined as a kind of thing , which carries the object of copyright or neighboring right. As to its characteristic,the rental right is absolute . The rental right is also a conditional right ,which means that the existence of the rental right must take the commercial renting visible works as a premise.Work can be used to rent ,only when it is fixed in the certain material carrier.In addition,the renting or lending of the work for non-profit purpose is exempted from rental rights. The joint rental right is defined that various kinds of rental rights with subjects and objects respectively overlap, which is called the joint rental right. The author therefore doesnot use " the sharing rental right." , because the objects are not the same... Rental rights transformation is discussed ,explaining the origin , speciality , the scope of the rental right .The related law ,legal regulations and development of rental rihgt in deffierent countries are discussed,. introducing the rental right system history of America, Germany, Japan and China . Rental rights under the protection of regional as well as the global international organization are researched. It is obvious that technical advancement will have a true impact on the way a work is being used. the work renting has been in vogue day by day since the moderntimes, the early rental right is affiliated with the distributing right, until they are established respectively in WCT in 1996 .Rental rights embody the idea of fair and just ,in which lies the benefit balance . The fundamental reason of rental rights is benefit ,which is the most important element in the balance.According to economic theories, that rental rights come into existence is because this type of use has produced new consumer community. In the digitized environment the rental right still is applicable to realizes authors'economic profits.In general ,the holders of the rental right include the principal directors of films , performing artists , producers of films , broadcasting organizations , authors of computer programs ,producers of phonograms and any other right holders in phonograms . Under the EC92/100 , the transfer of the rights of authors and performing artists concerning films or phonograms is governed by special rules .Usually speaking ,objects of rental rights encompasses computer programs , cinematographic works and phonograms . The EC Rental Right Directive establishes an exdusive rental right to all works except building and works of applied art .The EC Software Directive also provides the rental right to computer programs.The content of the rental right includes: (1) the copyrighter has the right to rent its work; (2) the copyrighter has the right to authorize or forbid other people to rent its work;(3) the copyrighter has the right to profit from work renting;(4) the copyrighter has the right to completely transfer his or her rental right;(5) the copyrighter will be allowed to partially transfer the rental right, which mainly refers to that in the joint rental right situation, the author or the performer will transfer parts of the rental right to the movie producer, recording or video recording producer but only retains the right to fructus... Under a rental right , the copyright holder may collect royalties from those who engaged in the commercial renting of their copyrighted works . That is to say , the copyright holder may obtain corresponding remuneration from the economic value of such a use whenever originals or copies are rented . When authorizing other people to rent the work, the owner has the right to make the independent meaning on scope,way, price and deadline ,making a contract with the relative person .The transferring of rental rights means that the copyrightowner shifts rental rights to other people. In the case of joint rental rights, the author or the performer usually transfers the rental right not wholly but partly. Namely,the right to authorize or forbid other people to rent the work is transferred to the producer of film or phonogram, retaining the right to fructus.The concerned regulations in the EC92/100 and the German copyright law are well worth referring. The rental right is usually transferred completely.Under the circumstances, Chinese copyright law should learn from German copyright law to establish the right to change treaties . Collective management system proves to be the effective method of managing rental rights.A rental right is accompanied by several conditions and exceptions . According to WCT , TRIPS and WPPT ,excepting computer programs ,which are granted an unconditional right to the auther to authorize or prohibit the commercial renting of her/his work ,as for audiovisual works a Member may choose not to grant a rental right, provided that at least authors obtain an equitable remuneration for the rental , commercial rental hasn't led to widespread copying and that the exclusive right of the owner to reproduce the work isn't materially impaired . TRIPS, WCT and WPPT permit member countries to determine the scope of this exception in their respective national laws , leaving consederable flexibility for the establishment and implementation of rental right . The concerted conception is that the exception law should be constituted in the library enterprise,setting up legal permission.As to rental right infringement , the liability principle of compensation for damages is the doctrine of liability for wrongs . Concretely speaking , the standards of liability for damages include: illegal activities ,damages ,and causlity between illegal activities and damages , fault . On certain conditions , to reduce a copyright holder's"burden of proof"for a rental right infringment , a defendant who denies such infringement may not simply deny that infringement but must also provide detailed proof that they not violated the rental rights . In addition, liability for infringement includes stopping infringement, eliminating influence, apologizing ,and so on. The definition of the rental right in Chinese copyright law needs making intelligible ,besides, the careful stipulation of the joint rental right should be increased.