Study On The Application Of Presumption On The Transfer Of The Right Of Audiovisual Performers

The Beijing Treaty on Audiovisual Performances has made up the blanks for the protection of audiovisual performers in international conventions, for its 12th Terms of Transfer is the key to formulate and implement the treaty successfully. The Terms of Transfer provides three presumption models for every membership to choose in accordance with its reality, which involves presumption——an important rule in modern litigation. Currently, China is ongoing the third amendments of the Copyright Law, Beijing Treaty constitutes the essence and reference of these amendments. Consequently, in order to apply the rule in audiovisual field, we should promote more study and research on the theory of presumption, which can harmonize the interest conflicts between the performers and the producers, and promote the audiovisual industry as well as keeping its international trade flowing smoothly.In this thesis, the main research methods are literature research and the comparative method. By making a comparison between the First Draft, the Second Draft, and the Draft for Examination of the Copyright Law, as well as the presumption system of some typical countries like British, America, Germany, France, this thesis sets out to discuss the construction of the presumption system in our new Copyright Law. The thesis divides five chapters:Chapter 1 tells the background of the presumption in audiovisual field, which introduce several alternatives of Beijing Treaty and three models of presumption, and then it analyzes the cause which brought about the controversy.Chapter 2 is the basic research on the theory of presumption, including The general conception and category of presumption, the fuction of presumption and its relationship to audiovisual performers’right of transfer, and the suitable space and value of presumption as to the audiovisual performers’ right of transfer in our country.As presumption is still a hotspot of discussion in theoretic field of home and abroad, this part of thesis gives a brief introduction of the general conception and its logic structure of presumption system, so as to discover its unique value in the field of audiovisual performers’ right of transfer.Chapter 3 centers on the third Amendments of the Copyright Law in China, and discuss the indigenous practices of the presumption system in the protection of audiovisual performers. In past stipulation of Copyright law, there existed a blank in legislation of audiovisual performers’ right of transfer. This condition has been broken down in the third amendments, but revised several times in three Proposal Drafts of Copyright Law, which still remains some differences from the Beijing Treaty.Therefore, on the basis of contrastive research and indigenous study, the author points out the problems and thoughts of the introduction of this system.Chapter4 and Chapter5 describe the construction of presumption system in Copyright law. Chapter 4 introduce the litigation status of presumption system in audiovisual performers’ right of transfer in both Common law and Civil law countries. Combining the conclusion report of the international convention of Beijing Treaty, this chapter analyses the reference value and limitations of this system in different legal tradition, which provides reference evidence to the construction of presumption system in our country. Then Chapter 5 puts forward the suggestions to perfecting China’s presumption systems from substantive law and procedural law on the basis of international convention and the legislations of different countries.The conclusion part summarizes this thesis’s central topic, trying to put forward the suggestion of the presumption system: In entity area, we should draw upon the legal provision of international convention and those of other nations, improve the suitable condition of presumption, we also need to make a difference between different types of works and the aims of transfer so as to define the relevant terms precisely. Besides, we should establish the relief system to provide adequate protection for performers, including adding some limitation conditions and providing further details requirements on audiovisual performers’ equal employment right. In procedural area, we can add some procedural rules, this contains the start of formal justice process if one or both parties are not satisfied with the result of presumption, the allocation of the burden of proof, the competition procedure also can help us achieve procedure justice. In the meantime,it is necessary to provide the corresponding system assurance. An important consideration is to establish some collective administrative organization of audiovisual performers. In conclusion, with the conjugation of substantive law, the procedure law, social organizations and institutional guarantees, we can set up suitable flexible mechanism at domestic of Beijing treaty, and advocate anew theory of application of Beijing treaty, this will promote our audiovisual industry in return.