On The Legal Nature Of Performer's Rights

The special professional group of performers is deeply rooted in the social culture,and their footprints are concomitant along with the human history.Science and technology,especially the fast development of the recording,broadcasting and television techniques in the end of 19th century and at the beginning of the 20th century , have fundamentally changed the social and historical status of performers.The age when performers have to be with the audience face to face has ended.Just in order to guarantee that performers continue to play the irreplaceable part of culture disseminator in the long river of history , it is necessary to give the group legal protections so as to deal with the professional crisis brought about by the development of broadcasting techniques like replication , broadcasting and so on.Performers'rights emerge as the times require.There are several different legislative modes in protecting performers'rights among the countries around the world. Some adopt protection mode of nonbearing right, some adopt protection mode of individual legislation and some adopt protection mode equating to the copyright. The major idea of this thesis is to discuss the legal nature of performers'rights, then to put forward proposals to improve china's copyright legislation in order to protect performer's right better.The main part of this thesis is divided into four parts; they are introduction, text (including four parts) and the conclusion.The introduction part explains reasons generally, and introduces present condition of legislation modes about protecting performer's right both in and out of china.The first part of text analyzes the legal nature of performers'rights from its theory basis, and demonstrates its copyright attribute from both jurisprudences, i.e. Locke's property labor theory and personality property theory founded by Kant and Hegel, and economic perspective. The rationality of property right in Locke's property labor theory and the close integration of property and personality in Kant's and Hegel's personality property theory reflect that its object (i.e. performance) is one manifestation of its subject's (i.e. performer's) free will, and not a repeated reappearance of the author's individual will in disseminating works. In economics, through the relation between copyright and performers'rights derived from analyzing the cooperation relationship between author and performer, we can see that they are not conflict but rather similar in many aspects.The second part of text analyzes the legal nature of performers'rights from performance legal relation. First, I analyze the extensiveness of its subject, and then conclude that its basis is its copyright attributes. Second, the basic conditions qualifying performance to be works protected by copyright law are analyzed. Performance has derivative ability making other person to be a subject of neighboring right that is similar to copyright, so, it should belong to the object of copyright, and future, its copyright attribute is also proved. In the end, from the contents of performers'rights, it is somewhat different from copyright; however, this is caused by the particularity of right object, which is not different from that other types of works can't have all the rights provided by law.The third part of text analyzes the legal nature of performers'rights from its legislation practice. The most difference between performers'rights and neighboring rights provided in all copyright legal system is that performer has spiritual rights, however, the subject of neighboring rights do not. Traditional neighboring right system does not conclude spiritual rights; by contrast, copyright has both neighboring rights and property rights. All nations'legislation establishes performer's neighboring rights and property rights, which essentially confirms its copyright nature, so, it should be protected through copyright protection mode. In international conventions, from"Rome Convention"to WPPT, the protection for performers'rights experience thus process that the performers are enlarged and the both spiritual rights and economic rights are protected from spiritual rights alone in right contents, which manifest that, with the continuous progress for performers'rights protection, the protection degree is increasingly improved, whose result is that the contents of performers'rights are identical to copyright.The fourth part of text, on the basis of defining its copyright attribute, produces some perfecting proposals with respect to defining performer's limitation and status as well as its limits and exclusions concerning china's performers'rights legislation.The conclusion part re-expounds main viewpoints as follow. First, with the development of society, as one of important contents of copyrights, performers'rights play more and more role in social life, and they are necessary to be protected. Second, its nature should be"copyright"in stead of"neighboring right". Third, the protection for performers'rights should adopt protection mode equating to copyright. Fourth, performer's limitations should be broadened, and protections for non-work performer should be added. Fifth, performance should be divided into performance of employment and performance of non-employment.