On The Improvement Of The Rules For The Attribution Of Copyright In Audiovisual Works

The rules of copyright ownership are referred to as the "rules of ownership".Although many achievements and highlights have been made in the third revision of the Copyright Law,there are still some shortcomings in the existing rules on the ownership of audiovisual works,including the lack of moral rights of authors,the absence of a legal definition of "producer" and the confusion caused by the "dichotomy".A number of confusions have arisen.The current law provides that the author of an audiovisual work has no moral rights other than the right of attribution,the underlying reason being that complete moral rights seriously threaten the normal use of the audiovisual work by the producer.The issue of moral rights in the field of audiovisual works is a common problem faced by countries all over the world due to the era of general separation of intellectual and financial input.After sorting out and summarizing the existing views and foreign legislation,four improvement paths can be drawn: firstly,to abandon the theory of moral rights and fundamentally eliminate the legal basis for the moral rights of authors;secondly,to refer to the legislation of the United States and Japan and treat producers as "authors",thus avoiding the problem of moral rights;thirdly,to learn from the provisions of Germany and France and clarify that authors Thirdly,we should learn from the provisions of Germany and France,so as to make it clear that authors enjoy moral rights,while at the same time adopting legislation to separately regulate areas that affect the normal exercise of the economic rights of producers;fourthly,we should learn from the British model,which allows authors to waive their moral rights within a certain scope.At a time when the theory of moral rights is still vital,abandoning the theory of moral rights,which is one of the basic theories of copyright law,is not in line with the world trend and realistic needs;the approach of including all functional works in the works of legal persons is contrary to the views in our judicial practice;combining the legislative experiences of Germany,France and the UK,clarifying the moral rights of authors to audiovisual works and regulating the moral rights separately while clarifying the relative waiver This solution is the best way to improve the lack of moral rights of authors,as it can effectively avoid the problem of legislative lag and the impact on traditional cultural industries.As the "producer" has priority in the rules of audiovisual works ownership,a hasty definition of the producer may affect the order of audiovisual works ownership established by court precedents and industry practices,and thus cause confusion in the audiovisual works industry.Therefore,the definition of producer needs to take into account both the mature concepts of foreign countries and the current practice in China.In judicial practice,the courts usually identify the "producer" on the basis of the signature,the copyright notice,the fact of funding,the organisation of the production or the agreement of ownership between the parties;the existing mature concepts in foreign countries basically include "initiation" or "planning","funding","production" and "production".The existing foreign concepts basically include the elements of "initiation" or "planning","funding","organising the production" or "responsibility".After analysing,discarding and reconstructing the existing elements in the light of national practice and international experience,the definition of a producer can be drawn as "a legal person,an unincorporated organisation or a natural person who plans and organises a production",and the "producer" should be determined in accordance with the agreement between the parties.The status of "producer" should be determined in accordance with the agreement between the parties.In the newly amended Copyright Law in 2020,"audiovisual works" are divided into"works of films and television dramas"(hereinafter referred to as "film and television works")and "It also stipulates that the copyright of "film and television works" shall be enjoyed by the producer,while the copyright of "other audiovisual works" shall be agreed between the author and the producer,and in the absence of such agreement or if it is unclear,the producer shall enjoy the copyright.If there is no agreement or if the agreement is unclear,the producer shall enjoy the copyright.The legislative design of this "dichotomy" has led to controversies in the academic and industrial sectors,including how to distinguish between"film and television works" and "other audiovisual works",and whether the "dichotomy" is a good one.Whether the "dichotomy" has any legal significance.The term "audiovisual works" is synonymous with "cinematographic works and works created by methods similar to the filming of films"(hereinafter referred to as "cinematographic works and film-like works"),and therefore The term "audiovisual works" does not expand the scope of protection of "cinematographic and cinematographic works",and it is difficult to establish scientific classification criteria for audiovisual works due to their essential unity.As copyright is a private right,prohibiting authors from acquiring copyright in"cinematographic works" will not have an incentive effect on producers,nor will it eliminate the risks inherent in the process of dissemination.The principle of private autonomy is still applicable to the field of "film and television works",taking into account the competing status of "author" and "producer" in practice.The abolition of the dichotomy and the "agreed priority" of ownership of audiovisual works are inevitable options for future amendments.