On Phonograms Statutory Licensing System In China

From the1990creation of "Copyright Law", the phonograms statutory licensesystem already exists, though after2001,2010two major changes, the requirements ofthe system has been inherited.The copyright law modification draft first and seconddraft allows phonograms experienced tremendous changes from "the first publishedthree months into the statutory license" to "direct delete". This article will start withcombing the historical changes of the phonograms statutory license system in China,combine the controversy of the system in the draft amendment with the relevantU.S.legislation.On the basis of providing sufficient demonstration to the legitimacy ofphonograms statutory licensing system exists in our country and the progressivesignificance of the article46in the copyright law modification draft first, thenproposing the basic proposition on specific legislative conception of the system andimprovement of the system.1990China’s "Copyright Law" article37, paragraph1, for the first time to providephonograms statutory license system; copyright law amended in2001, deleted thefront provisions of the article37, paragraph1, and narrowed the scope of work;2010this provision intact moved into the new law article40, paragraph3;March2012"Copyright Law"(to modify the first draft) article46provides that "three months afterthe first publication of phonograms" Can be applied statutory license system, then inJuly the second draft deleted directly phonograms statutory license system,to restore itto the exclusive rights of the author.The draft change caused controversy of the systembetween music industry professionals and academics,controversy focused mainly onthree-month protection period is reasonable,"statement reservations" should bedeleted,system conform to China’s music industry present situation and the copyrightmanagement system.The United States is the first country to implement the system,it has its ownlegislation features. In the program it has done many provisions to protect copyrightholders such as the user must pay fees on time,for recording producer also gives itsrights of make necessary adaptation to original music works,at the same time,makeclear that network transmission works can be applied legal license.In terms of concretesystem, carried on the detailed rules in condition, way, subsequent use behavior andlaw relief way.Phonograms statutory licensing regime meets the legislative purpose of copyrightlaw,it is the need of justice in our country, and also exists the necessity in ourcountry.Clause46and the current "Copyright Law" article40, paragraph3, there weresignificant advances, specifies three months license time, delete the "declaration by thecopyright owner", etc.But there are still license embodiment is not clear, time is tooshort, compensate mechanism imperfect.In this regard, China’s phonograms statutorylicense system need to be modified, extended the time of licensing, stipulated thesubsequent behavior of producer of the sound recording,Cleared that legal license forthe hiring a singer to sing and direct duplicating after the original sound recording makers and performers licensing,at the same time,provide charging a fee unified bythe copyright collective management organization,introducing works using thenegotiated pricing mechanism,through these to protect copyright holders to get paid.