Research On The System Of Transfer Of Audiovisual Performers' Rights

The pass of Beijing Treaty on Audiovisual Performances had a great impact on the relevant provisions of our Copyright Law. This thesis combs domestic legislative and judicial current situations of the transfer of the audiovisual performers' rights, summarizes the problems of the system, reads specific provisions about several modes of the ownership of rights in the Beijing Treaty on Audiovisual Performances, and then selects a mode suited to the reality of our country, at last analyzes the specific application of the mode in our country.This thesis is divided into four parts:The first part is about the fundamental investigation of the audiovisual performers' rights. It mainly starts off with basic theories, combs and analyzes the changes about the protection of international treaties to this right and protection situations of this right in individual countries. The performance is divided into sound performance and audiovisual performance by the way of people's use. Audiovisual performer's rights are the rights of performers in the audiovisual fixation. The values of the audiovisual performers' rights reflect in the value of labor, personality property, economic incentive and balance. The protection of the audiovisual performers' rights have developed from nothing, which is from no or incomplete protection in Rome International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, Agreement On Trade-related Aspects of Intellectual Property Right and WIPO Performances and Phonograms Treaty to complete protection in Beijing Treaty on Audiovisual Performances. And this right doesn't get the same protection in US, EU, United Kingdom, France and Germany.The second part is about the analysis of present situation and problem of the transfer system of the audiovisual performer's rights in our country. From the present situation of our legislation, our “Copyright Law” and “Implementing Regulations of Copyright Law” don't ascertain this right and the transfer of this right, but the ascertains of film works, video products, performer and performers' rights, which are related to this right. But the third amendment bill of Copyright Law does some certain improvement of the transfer system. The transfers of the audiovisual performers' rights are divided into internal transfer and external transfer. And our judiciary has a view that the mode of the internal transfer is “statutory transfer” and the mode of the external transfer is “presumption of authorization”. But there is also another view, that is audiovisual performances do not enjoy other economic rights in addition to remuneration, so there is no problem of transferring right. Reasons for the differences are the basic concepts of performers, performance objects and audiovisual works in the system of the audiovisual performances' rights which are not clearly defined. Moral rights, the contents of the transfer of rights, leads to the unclear transfer of rights, and statutory transfer, presumption of transfer and agreement of transfer three kinds of transfer modes are not determined, and the acquisition of remuneration is lack of interoperability.The third part is about the combing of the transfer system of the audiovisual performer's rights in the Beijing Treaty on Audiovisual Performances. First, introduce the specific content of the transfer system of the audiovisual performer's rights determined by the treaty. That is to say, once the performers agree the records of the performance, they also allow the mode that is countries choosing statutory transfer, presumption of transfer or presumption of authorization. And parties can overthrow the preceding mode by autonomy. These rights can be transferred are part of the property rights. The right to remuneration can not be transferred. Then analyze three modes in the Beijing Treaty on Audiovisual Performances article 12.The fourth part is the expansion of the transfer system of the audiovisual performer's rights in our country. Combining the four basic principles of the system, which are autonomy, interest balance and efficiency optimization principles, the author thinks our country is suitable for this way, which is the “presumption of transfer” as major and statutory transfer as supplement, to confirm the ownership of audiovisual performer's rights. On the basis of the mode selection, analyze specific topics in the subject, object, content, condition and supporting safeguards of right transfer. The original right subject of the audiovisual performer's right only can be the performers(natural person). Performing units can not be the original subjects, and only can be the subject by transferring some property rights. In practice, distinguishing major and non-major performers is necessary. People, who perform folklore and imitate existing performance, are also performers. The objects of the transfer of the right are audiovisual works and other audiovisual fixations. The contents of the transfer of rights are limited in reproduction rights, distribution rights and the right to provide recorded performances. And there is no necessary to provide rental right, the right to broadcast and disseminate to the public in our country. Moreover, because of the imperfection of collective management organizations, there is no need to provide remuneration right of reusing. We should combine reality to establish sound collective management organizations, which can grasp the specific implementation of the transfer system of the audiovisual performer's rights.