A Study On Right Of Communication To The Public

Copyright Law of China had revised in 2001 and 2010. In July 2011, the National Copyright Administration launched the "Copyright Law" third revision work. The revision made a larger change on the property rights of the copyright, a noticeable one of which is the change on broadcasting rights and the right of communication through information network. This paper attempts to analyze the deficiencies of the current broadcasting rights and the right of communication through information network that "Copyright Law" provides, then to explore the feasibility of setting the all-inclusive right of communication to the public, and to make recommendations for the "Copyright Law" third revision.This paper is divided into three parts, that is to say, introduction, text and conclusion.Introduction section explains the motivation of this paper. China is in the process of the third revision of "Copyright Law", but there are some flaws on China’s current regulations on broadcasting rights and the right of communication through information network, so I would like to reflect on whether we can integrate "Copyright Law" in the broadcasting rights and the right of communication through information network, and provides the concept of a host of regulations- the right of communication to the public in order to provide a reference for amending the law of copyright.The text are composed of five chapters:Chapter I analyzes the shortcomings of broadcasting rights and the right of communication through information network in our country. At present, the broadcasting right in China’s "Copyright Law" can control three behaviors, but it cannot control cable broadcasting behavior, while the broadcasting rights and the right of communication through information network cannot regulate network timing playback behavior and real-time broadcast behavior. Besides, there are still ill-defined problems on the rights of communication to the public and performance rights. This not only does not meet the requirements of Article 8 of the WCT, but also led to the confusion in theory and practice. Because the provisions of the copyright property rights system is too complex and the boundaries between right and right are unclear, this problem arises. Through judicial interpretation to cover urgent needs of legislative defect only provides temporary solution. To solve the problem fundamentally, it should make the appropriate changes in copyright law, so that it can equally regulate the behavior the nature of which is the same. This led to the thinking of establishment of the right of communication to the public.Chapter II describes the contents of the right of communication to the public and legislative modes of other countries. The broadcasting rights and the right of communication through information network are derived from the right of communication to the public in international conventions. China’s "Copyright Law" does not provide for the right of communication to the public, and therefore need to look at the contents of the rights from international treaties and legislation in other countries. "Berne Convention" provided different rights of communication to the public for different types of works and different propagation methods, so that the provisions of the right of communication to the public are more dispersed. Development of new technologies brings an opportunity to integrate the right of communication to the public, the Article 8 of WCT of the "Berne Convention" already extend the exist "communication to the public rights" and provides a blanket of communication to the public right. The objects of the right of communication to the public will be extended to all types of works, and their method of communication will be extend to all means of communication. Thereafter, each member party followed the idea of "umbrella solution", choosing different waystoprotect the right of communication to the public in copyright law of their countries. Among them, the invariant legislative model is more complicated, and only the United States has taken this kind of legislative model; the formula legislative model, represented by the European Union, is more feasible for many countries and regions; China adopt complementary type of legislative model, but This kind of legislative model poses some problems.Chapter III summarizes the defining elements of the right of communication to the public. As noted above, our current regulation of communication to the public exists some problems, and the legislative model of United States which using distribution rights and public performance rights to regulate the behavior of the right of communication through information network is too complicated, and the relevant legislative model in EU and other countries and regions are more feasible. Therefore, if we adopt the relevant legislative model in EU and other countries and regions, it should be a problem of how to define the scope of the right of communication to the public. Definition of "communication to the public" needs to consider the scope of two elements: "communication" and "public". The paper combines some relevant judgments of the United States, Australia and the European Union such as Aereo case, and analyzes these two elements. Firstly, the "communication" requires the behavior of communicating the works. Whether the method is wired or wireless, interactive or non-interactive, they all belong to the mode of communication. The results of communication are that the public has the possibility of making access to the works, without actually requiring the works. Secondly, the "public" to exclude the family members and frequent circle of friends, and refers to nonspecific persons outside of these two groups. Under the new technological environment, whether the link belongs to the behavior of public communication behavior sparked an intense discussion, the representative case of which is EU 2014 judgment of Svensson case, and the qualitative problem of links can also be considered from the above two elements. These latest judicial practices can also help to define the elements of the right of communication to the public from the legislative point of view.Chapter IV discusses the three main programs for communication to the public of legislation in China currently. There are plenty of controversies surrounding these three programs. The first program tries to limit the right of communication through information network to the "Information Network Environment", and then regulate the behavior such as real-time broadcast on the network. However, the limitation of the network environment may generate a lot of problems through the development of technology and the integration of the three networks. Therefore, since this kind of program was announced, it suffered a lot of criticism. The second program is that the copyright law limit the right of communication through information network to only interactive communication, while limit the broadcasting rights to cover non-interactive webcast and rebroadcast. However, this program provides too much details, and can’t meet the requirements of the principle of technical neutrality, so it needs further adjustments. The third option proposed to combine the broadcasting rights and the right of communication through information network, provides a single right of communication to the public. Some argue that such programs need to present the right system for major changes, and would cause confusion to the existing legislative system. However, we couldn’t imprison the correct legislative ideas for keeping the existing legislative system. After conduct a comprehensive analysis to these three programs, I believe we should further modified the law on the basis of the second and third of the program. From the perspective of historical development, civil law systematism and transaction costs in economic analysis, we should establish overarching right of communication to the public. From the difference behavior patterns between broadcasting rights and the right of communication through information network, and taking into account the idea that division of property would benefit the allocation of resources and elements, and should provide the specified sub-rights under the right of communication to the public.Chapter V presented the legislative proposal to our "Copyright Law" in the right of communication through information network, namely, the introduction of the overarching rights of the right of communication to the public in copyright law, and the modification of sub-rights under the right of communication to the public. The performance rights and the right to exhibit aims at the "public in the place where the communication take place", while the right of communication means communication to the public who is not in the place where the communication occurs. This difference also led to the distinction between these two rights in obtaining economic benefits. Therefore, the separate regulations of performance rights, the right to exhibit and the right of communicate to the public will be more feasible to conduct license or calculate fees. In the event of infringement, it is also easier to calculate different damages. WCT also stipulated the right of communication to the public, but some spot modes of transmission are excluded. The right of communication to the public includes two sub-rights, that is, the broadcasting rights and the right of communication through information network in the existing law. The boundary of two right is complex, so this revised draft of "Copyright Law" modified several drafts about this section. This article proposes to change "broadcasting rights" to "broadcast rights to the public" and change the "the right of communication through information network" to "the right of making available to the public". Meanwhile, the means to communicate should be defined as "wired or wireless", in spite that the mode of communication in the end is wireless or wired, thereby weakening the technical features of communication. Furthermore, the "communicate to the public through the technical equipment" should be deleted, because they belong to the behavior of mechanical performance of the performance rights, and should fall in the category of performing rights.Finally, the last part of the article gives the conclusion.