By Zhan Yi
On 26th June, the acceded countries at the diplomatic conference of WIPO signed the Beijing Treaty on Audiovisual Performances (the “Treaty”); the Treaty first established the overall protection system of performers’ rights concerning audiovisual works around the world. The Treaty has covered more than 40 countries; with China being one of them. This essay is to analyze the effect on the audiovisual industry from the new Treaty, as well as the latest copyright law revisions in China.
I. The “performer” and his/her two main rights
Under the Treaty, the “performers” are actors, singers, musicians, dancers, and other persons who: act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore, like film or TV actors or actresses, crosstalk comedians, musicians or dancers. The “performers” in the “Treaty” refers to individuals, yet it is provided in Chinese Copyright law, revised in 2010, that it could also be the performing units, namely legal entities or other units. But we have seen that the 2nd Revision Draft of Chinese Copyright Law has verified that the performer shall be the individual; that is to say the concept of the Treaty has been amended into the legislature draft to ensure its consistence with the international convention.
According to the Treaty, the “performer” may exercise two main rights: moral rights and economic rights. For the moral rights, it includes the right of authorship and the right of integrity. And as to the economic rights, it provides: 1) the right of the fixation of performers’ unfixed performances and the right of the broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast performance; 2) the right of Reproduction, the right of Distribution, the right of Rental, the right of making available of fixed performances, and the right of broadcasting and communication to the public. In the meantime, the Treaty permits domestic legislatures to limit or reserve the right to broadcast and the distribution enjoyable by the performer over his/her fixed performance’s playing, or the legislature may have no regulations in that aspect. After the ratification of the Treaty, the above two main rights shall be protected among the acceded countries.
The Chinese Copyright Law, revised in 2010, has no division between the audio or visual performances, but that is provided for in the Treaty. The 2010 Copyright Law provides no specific articles on performer’s rights in the cinematographic works and works created by virtue of an analogous method of film production. To my understanding, the film or TV actors or actresses shall have no rights; namely they are not the legal right holders, but a fair compensation to their performances should also be paid. For other performances, both the audio and visual performances, we have seen the same regulations on the moral rights in both Chinese law and the treaty, but no clauses on the rights of rental, broadcast and distribution.
The 2nd Revision Draft of Chinese Copyright Law amended the right of rental by the performer. Regarding the broadcast and making it available to the public, the 2nd Draft provides that the performer of the fixed works shall enjoy the compensation rights to the works’ broadcasting and performance. However, we do not see any related regulations on the rights of broadcast or the making available to the public, enjoyed by the performers. Despite the compensation paid to the main performers of the audiovisual works, as demanded by the 2nd Draft, the document seems to have no clauses on the rights of broadcast and making available to the public.
II. The transfer of the performer’s rights
Although the Treaty mainly regulates the rights of performers, no one could deny it will affect the interests of the parties concerned in the audiovisual industry. With the rights of copying, distribution and publishing of the fixed performance by the audiovisual performers, as well as the right of making it available to the public, a stricter protection on the performers’ rights has been made. That means the interests sharing will not exclude the actor or actress from the producer, director or editor. Surely, the new Treaty also admits the prominent position of the artists in the industry. At the same time, the new regulations also bring a more complicated licensing and interests sharing system in the industry, and that was the main reason hindering the signing of the treaty over the past 12 years, i.e. in some industrial countries the actors’ interests are mainly guaranteed by the agreement. Therefore, Article 12 of the Treaty regulates that:
“A Contracting Party may provide in its national law that once a performer has consented to fixation of his or her performance in an audiovisual fixation, the exclusive rights of authorization provided for in Articles 7 to 11 of this Treaty shall be owned or exercised by or transferred to the producer of such audiovisual fixation subject to any contract to the contrary between the performer and the producer of the audiovisual fixation as determined by the national law.”
This article regulates the transfer model of statutory transfer, presumed transfer and statutory license, so that the demands of the contracting countries can be met.
For the 2nd Revision Draft of Chinese Copyright Law, it adopts the statutory transfer model, which says the rights in Paragraph 5 and Paragraph 6 of Article 13 shall be enjoyed by the producers of the audiovisual works, while the performer shall have the right of authorship. In the mean time, the draft also promulgates the compensation right and 2nd compensation right by the performer: the producer shall sign a written agreement with the performer for shooting the audiovisual works, as well as a compensation payment. With regards to the use of the works by others: the main performer shall have the right to get the compensation.
On the belonging (ownership?) of the performer’s right, the Draft also provides for the performance of hire. By the relevant articles, the performance made for fulfilling the work task is the performance of hire, and the right belonging (ownership?) is subject to the agreements of the parties. When there’s no agreement or it’s a vague agreement, the performance of hire shall be enjoyed by the actor or actress. However, the group performance of hire could be the performing units’ sole intellectual property, with all the performers participating also enjoying the right of authorship. The rights concerning the performance of hire shall be enjoyed by the performers, and the performing unit could use the performance within its business goal.
Conclusion
The Treaty establishes the online protection and international protection of audiovisual performers around the world under the trend of universalized manufacture and publishing of the works in the industry. And it could be foreseen, as an influence on the film investment, manufacture, publishing and broadcasting, and that deserves attention and research by the industry and the legal profession.
This Essay is quoted from DeBund Newsletter of September, 2012.
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