A Reasonable Construction Of Secondary Remuneration System Of Audiovisual Works In China

The secondary right to remuneration of audiovisual works has been introduced in the third revision of the Copyright Law. The legal nature of the right is defined as contract creditor's rights in the revised draft of the Copyright Law of the People's Republic of China (hereinafter referred to as "the draft"). But the legal nature of the secondary right to remuneration should be defined as a statutory right to remuneration, in order to protect the interests of the authors who are at a disadvantage and prevent the producers using its strong position and provisions of "unless otherwise agreed in the contract" to deprive the author of the secondary right to remuneration. In addition, the Copyright Law directly gives the copyright of audiovisual works to the producers, this kind of legislative model of original copyright ownership will make the subsequent gains of audiovisual works lose relationship from the author, and will directly harm the interests of the authors' secondary right to remuneration. The Copyright Law should modify the current legislative model of original copyright ownership and clear that the copyright of the producer is from the authors'assignment or permission, only in this way can the Copyright Law give the secondary right to remuneration legal premise. Although the secondary right to remuneration has been introduced by the draft, but the subject of the right and the right content are still not clear in the draft. The subject of the secondary right to remuneration should include directors, screenwriters and music songwriters who specifically create songs for audiovisual works, but should not contain the original authors. The reason is that the original authors have no intention to get involved in the production of audiovisual works at the beginning of creation. The content of the secondary right to remuneration refers to the gains of "secondary use", the income should not contain the cinema's box-office profit share and the gains of rental and lending use of audiovisual works. The income should include two aspects: one is the repeated use of audiovisual works except rental or lending, such as television replay, video-sharing website replay and copying and releasing of audiovisual works in DVD form; the other is shooting "sequel" or "prequel" on the basis of the original audiovisual works'character and "character merchandising" gains.