Discrimination On Secondary Right Of Remuneration Of Film Authors In China

In recent years, with the rapid development and the increased box office of Chinese film industry, it has become one of the most important industries in national economic development. Copyright law is very important for the film industry. The third amendment of Copyright Law of China has put forward secondary right of remuneration of film authors in the film industry, which was disputed by legal scholars, film industry practitioners and so on. The focus of controversy lies in whether secondary right of remuneration of film authors should be in the law. Around this controversy, it is needed to understand the four levels of the problem. The first level is the question that does secondary right of remuneration of film authors exist? The second level is whether it should be risen to the legislative level, whether it should be prescribed in the copyright law? The third level is what the nature of the right is? The fourth level is how to specify? Four levels of the problem corresponding to this paper is discriminating the concept of secondary right of remuneration of film authors in the second chapter, and discriminating the legitimacy and value of secondary right of remuneration of film authors in the third chapter, and discriminating the nature of secondary right of remuneration of film authors in the fourth chapter, and discriminating the prescribed manner of secondary right of remuneration of film authors in the fifth chapter. First of all, secondary right of remuneration of film authors does exist. Secondary right of remuneration of film authors not only refers to the two times, the essence is many times. There is no specific provision of secondary right of remuneration in major countries, and there is no special use of the term secondary right of remuneration. Throughout the world, the ways of film authors' remuneration in the international can be divided into two categories. One is copyright royalties of film co-authors from the retention of part of the films economic rights available, and copyright royalties of composers and script writers. Another is statutory or contractual additional remuneration of film co-authors when they are not entitled to the copyright of the film work. In the background of the third amendment of Copyright Law of China, secondary right of remuneration of film authors shall belong to statutory or contractual additional remuneration of film co-authors when they are not entitled to the copyright of the film work. Specifically, it is right to share the remuneration with the producers. According to every use of the copyright of the film, or based on the profit of the film, producers should pay to the authors. Second, secondary right of remuneration of film authors should be risen to the legislative level. On this issue, scholars had put forward different views. Some scholars held the view that it should be risen to the legislative level, by comparing Chinese system with foreign system and favoring the incentive effect to the authors' creation. The others held opposing views that secondary right of remuneration of film authors should not be risen to the legislative level, by believing that secondary right of remuneration would bring negative effects to the producers, and affirming that the American film industry has developed better. It turns out that it should be risen to the legislative level. The legitimacy of the entry law include not only the basis of right, moral basis, economic basis, power base, psychological basis and legal basis, but also the lack of the development of China film associations and copyright collective management organizations, by analysing of factors of statutory models and contractual models of secondary right of remuneration. Then it shall be stipulated in the copyright law, rather than in the general meaning of the civil law. Third, it is statutory creditors' right prescribed by the copyright law. On this issue, scholars had put forward different views. Some scholars held the view that it's legal right. But scholars had not been involved in the basic discussion about what the nature of the right is in copyright law. Some scholars believed that it's due to remuneration claim of copyright. Others believed that it's creditors' right. It turns out that it should be private right, civil right, creditors' right, statutory creditors' right prescribed by the copyright law. Rather than copyright and due to remuneration claim of copyright. Finally, in line with the nature of secondary right of remuneration of film authors, it should be defined in terms of the use of audiovisual works in copyright law. That is the producers shall pay monetary interests to the authors according to every use of the copyright of the film, or based on the profit of the film.