Study On Performers’ Moral Rights

The protection of performers’ moral rights is an essential regime to respect the special connection between the performer and the qualifying performance which can been deemed as the “creation” of the performer, especially in consideration to the advanced development of modern technology and the wide spread of the multimedia products on internet. Prior to the adoption of the WIPO Performance and Phonograms Treaty(“WPPT”), there was no introduction at the international level of moral rights for performers. Furthermore, the national framework regarding this issue is largely different in content. Civil law countries seem to give more attention to the spiritual needs of the performers than common law countries. Generally speaking, performers usually are entitled two types of moral rights, the right of paternity and the right of integrity with respect to their qualifying performance, so is the case in China. However, other jurisdictions may choose to provide additional types of moral rights with the performers based on authors’ moral right, which give rise to the controversial issue that to what extend shall performers’ moral rights be protected in China.This dissertation aims to conduct a relevantly comprehensive exploration of the performer’s moral rights protection in China from various different angles of performers’ moral right, the content, nature, object matter, subject matter and the restrictions to this right respectively. Meanwhile it also aims to provide reasonable solutions to the controversial issues about the above five aspects in practice.In order to develop the thesis, this dissertation will be divided into four chapters.The first chapter will explore the fundamental issue of the research subject that what are performers’ moral rights. The development of introduction of performers’ moral rights at international level will be explored to provide the overview of the international framework and national framework regarding performers’ paternity right and integrity right. The definition of other additional type of performers’ moral rights will also be analyzed.The second chapter will explore the nature of performers’ moral rights and the boundary between the performers’ moral rights in the domain of intellectual property and the performers’ right of personality in the domain of civil law to demonstrate that the nature of the above aforementioned rights are the same in the sense that they all protect performers’ personality interests. However, it shall be noted that the protection of performers’ moral rights is rely on the special connection between the performer and the qualifying performance “created” by the performer while the performers’ right of personality is rely on the birth of the performance. This is the line between performers’ moral rights and performers’ right of personality and could be used to solve practical disputes arising from the confusion of these two rights of performers.The third chapter explores the controversial issues that in relation to the subject matter and the object matter of performers’ moral rights arising from the Article 5Item 6 under the Copyright Law of People’s Republic of China which provides that performer means an actor or a performing entity or any other person who performs literary or artistic works that(1) what is the relationship between the literary or artistic works performed and the qualifying performance;(2) whether a performing entity can be deemed as the performer in a qualifying performance and(3) whether the scope of performers deemed in China is in comply with relevance regulations in WPPT and the WIPO Beijing Treaty on Audiovisual Performance(“Beijing Treaty”)which have both been ratified by Chinese government This chapter will demonstrate that qualifying performance itself cannot be deemed as a work protected by copyright law due to the lack of originality required in civil law countries.Additionally, the scope of performers under Chinese copyright law shall be revised since a performer protected can only be nature person rather than legal person or legal entities. Moreover, as a signatory country of WPPT and Beijing Treaty, the scope of protected performers under Chinese copyright law is arguably narrower that what requested in the treaty, so the person who performs expressions of folklores shall also be provided moral rights.The last chapter addresses the issues that to what extend should Chinese copyright law provide limitations to the protection of performers’ moral rights. Both doubts and the rationale behind performers’ moral right will be analyzed in detailed to demonstrate that it is necessary to provide moral right protection regime with the performers in consideration to their spiral needs and the realization of performers’ economic rights. Meanwhile, it is also essential to exert reasonable restrictions on the exertion of performers’ moral right provided that the public interests shall be well balanced.