Study On Performers’ Rights Ownership And Interest Share

With the highly prosperous of entertainment industry and the development of science and technology as well as the network today, protection of performers’ rights is becoming more and more difficult to control. The phenomena of reproduction and distribution performers’ performance work at will thus against the interests of performers are uncommon. International treaties and Chinese law cannot reach an agreement on the ownership of performers’ rights. This makes the audiovisual performers cann’t protect their rights through legal efforts. If things go on like this, not only audiovisual performers will be greatly damaged the interests of but related industries and the interests of the owners will be faced with different degrees of damage.The protection of the rights of performers is based on a country’s history and culture, social status and background.Comparing the legislation of other countries, some countries and regions protect the rights of performers as copyright(eg: Australia,Taiwan),some protect the rights as a neighboring right(eg:France,Germany,Italy,Japan).Britain gives a protection of performers separately. China’s current "copyright law" uses the mode of neighboring rights to protect performers’ rights. And it protects "cinematographic works and works created in a way similar to cinematography works" and "audio and video products" in different ways.China’s current "copyright law" stipulated that cinematographic works’ copyright is owned by producers. The focus is copyright protection between copyright and neighboring rights, and then the performers’ rights also belong to the producers. But according to item 2 of article 42 of the "copyright law" : "A producer of sound recordings or video recordings who is authorized to reproduce and distribute a radio or television program shall also pay remuneration to the copyright owner and the performer as prescribed by regulations. " So, performers of audio and video products still have the rights of performers and can be paied through the use of producers. But for performers of the film and video recording, there is no difference between the two. The lack of protection film works’ copyright caused the lack of protection of the rights of performers in movies. China’s current "copyright law" lacks a unified standard in the protection of the rights of performers.Diplomatic Conference on the protection of audiovisual performances of World Intellectual Property was held in Beijing of China in 2012, passed the "Beijing treaty on audiovisual performance ". "Beijing Treaty" is the three major international treaties relating to neighboring rights protection: "Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations ", "Agreement on Trade-related Aspects of Intellectual Property Rights" and "WIPO Performances and Phonograms Treaty", it has an extension protection of performers’ rights. "Beijing treaty" is the first to extend the protection of performers to audiovisual fixations, it has made a great progress.The ratification of the "Beijing treaty" coincides with the publishing of China’s "Copyright Law(Draft)". The revision of the copyright law made significant changes on many issues, especially on the protection of the rights of performers. The author starts from the status quo of China’s current legislation on the protection of performers, making comprehensive consideration of China’s film industry culture background and measuring interests between performer and producer to select the most suitable performers’ rights ownership scheme for the present stage of our country to discuss the problem of interests between performers and producers. The author makes the "Copyright Law(Draft)" as the basis, and tries to improve the protection of performers’ rights.The thesis consists of five parts(including preface and epilogue). The author is trying to answer three questions with this thesis: first, whether the Current situation and protection of the rights of audiovisual performers damages the rights of performers; second, which mode should be chosen between the performers and producers on the audiovisual performers’ ownership of rights; third, whether the so called secondary right of remuneration should be set up.In Chapter One, the author will focus on the status quo of the protection of the rights of audiovisual performers, combing the content of the right to the protection of audiovisual performers of "Beijing Treaty", further defined on audiovisual performers’ rights under the background of the scope of protection in the Treaty. The author will analyze the current protection of the rights of our country on the performers’ rights through the comparison of two cases, leading to the thinking of whether performers’ rights ownership and the distribution of benefits is reasonable. When the performers and producers or third parties are in dispute, whether the processing rules in judicial practice is reasonable.In Chapter two, the author will discusses the rights of ownership of audiovisual performers from the disputes international society for pattern transfer of audiovisual performers’ rights, and analyze of the pros and cons. The author thinks that the draft of the copyright law needed to be improved.In view of the main performers enjoy the right of authorship and the right to claim performership belong to the same content repeat provisions,the author thinks that the main provisions should be deleted the authorship.In the judicial practice, some unknown actors cannot exercise the right to to claim performership for they are in a weak position. Because of that the right to claim performership belongs to the right of personality, this chapter suggests that right to claim performership shall not be agreed by contract. Through comparisons for the legal systems in the world, this chapter suggests we choose presumed authorization model to protect performers’ rights, if there is no contrary agreement in the contract, the producers can exercise the rights instead of performers. In this mode, the audiovisual performers still enjoy the rights of performers, producers can use the audiovisual works within the scope of authorization. On the one hand it can improve the efficiency of transfering audiovisual works, accelerate the spread of audiovisual works the transfer does not affect the efficiency of film and television works, on the other hand,it gives both parties a full right of autonomy.In Chapter Three, the author will evaluate the necessity of providing a secondary right of remuneration. First discussed the "Beijing Treaty" in the provisions of the secondary right of remuneration and obligations for audiovisual performers. The author thinks that in our country the introduction of a secondary right of remuneration will cause some problems, but it is necessary. This chapter focus on the relevant provisions of a secondary right of remuneration for performers in "Copyright Law(Draft)".The current "Copyright Law(Draft)" provides rights to share interests among main performers and producers. It has a certain coherence, but the provisions of a secondary right of remuneration is not perfect in the draft, it must be set up specific provisions. Taking there is no collective management organizations in our country into account, we shall stipulated the secondary right of remuneration of performers is not transferable and also analysis on the rationality of setting up the right.