Research On The Legislation Of Broadcasting Rights Of Performers And Producers Of Phonograms

With the development of communication technology, copyright and neighboring rights associated with phonograms have become the most complex system of copyright law. "Music Works- phonograms" binary object, "music copyright owner-phonogram performers- producers of phonograms" ternary subject, as well as the expanding development of broadcasting technologies, increase the complexity of the music copyright system and reality operability. According to the provisions of the existing law,copyright owners of music works enjoy the right to broadcast, which is limited by statutory license,but performers and producers of phonograms do not enjoy the right to broadcast.Today, the increasingly sluggish of music industry makes performers and phonogram producers increasingly dissatisfied with the lack of remuneration for broadcasting rights,and disputes are becoming increasingly fierce.This paper will modify and improve the system of broadcasting rights of performers and producers of phonograms, in perspective of legislation and foreign legislative experience.This paper will discuss four issues:First, whether the performers and producers of phonograms should enjoy the right to get broadcasting remuneration. The reasons why China’s current law does not give the performers and producers of phonograms broadcasting remuneration right lies in two aspects: First, broadcasting can promote publicity of music, and therefore promote record sales; Second, China does not have the international obligations to give the performers and producers of phonograms broadcasting remuneration right. This paper will refute the two legislative reasons and point out the irrational sections, and further justify broadcasting remuneration rights of performers and producers of phonograms from four aspects:theory, reality urgency, feasibility and international experience.Second, whether legislation of broadcasting rights should apply exclusive rights mode or remuneration mode. Some scholars support the remuneration mode,which is in order to coordinate the legal system. This paper do not agree this view. Although remuneration mode is rathe simple for legal system, but we can not take a shortcut just because of the difficulty to amend the law.The choice between the two modes should be made on rational considerations.Besides, high cost of the exclusive right mode is not sufficiently convincing.Third, whether statutory license of the copyright holder of music works should be canceled. According to the assumption of the foregoing, performers and producers of phonograms have the exclusive right to broadcast, and then the performers and producers of phonograms,as neighboring right holders, enjoy a higher degree of protection than music copyright owners,which is obviously not reasonable. Therefore, this section discusses whether it is possible that we improve the degree of protection of music copyright owners, giving them exclusive right of broadcasting. Firstly, this paper analyzes the reasons why statutory licensing system has been preserved: propaganda nature and public interest of broadcasing,and cost saving. This paper will refute the two reasons and point out the irrational sections,and summed up the necessity of giving copyright owners the exclusive right of broadcasting.Fourth, how to build a scientific and efficient permission and payment system of phonograms.This paper discusses the present situation and forecasts of collective management of phonograms, and analyzes the disadvantages of collective management system.Besides,on the basis of the new situation that digital technology brings us and Copymart copyright market model of Japan,this paper proposes the idea of personal online permission and payment system.The general idea of personal online permission and payment system is to build an online permission and payment website,where users can find the sound recordings they need and get the contact information of rights holders.In this way, users and rights holders can contact directly.