Introduction to Ownership of the Performer’s Right in China

(By Luo Yanjie) As China recently ratified the Beijing Treaty on Audiovisual Performances, in today’s post, we will introduce the system and cases of the performers’ rights in the Copyright Law. As for who holds the performer’s right, different judgments will be found through three cases. Who holds the performer’s right? The performer, the company/organizationthat hires the performer, or the performing company/organization? These different judgments can become an obstacle for the further development of China’s performing arts.

Firstly, regulations relating to the performer’s right shall be introduced. Item 6, Article 5 of the Implementing Regulations of the Copyright Law stipulates that, performer refers to an actor, performing organization or any other person who performs literary and artistic works. Since Item 6, Article 5 made a simplified stipulation, there are quite different judgments in China’s local courts.

1st Case: The performer’s right belongs to the performing organization.

Appellant (defendant at first instance): China Record Corporation (the “CRC”)

Respondent (plaintiff at first instance): China Pingju Opera Theater

Court of first instance: Beijing No.1 Intermediate People’s Court   No.: (2005)一中民初字第687号

Court of second instance: Beijing Higher People’s Court  No.: (2005)高民终字第1258号

ThirdSister Yangsan Goes to Court was written by Cheng Zhaocai, the original author. In February 1962, China Pingju Opera Theater organized, recomposed and rehearsed the ThirdSister Yangsan Goes to Court (the “disputed opera”). In 2002, CRC produced China Pingju Opera Theater’s re-performance of the disputed opera in CD format and then published the China Opera · Third Sister Yang San Goes to Court (Selections)CD. China Pingju Opera Theater brought CRC to the Court, alleging that the conduct of the CRC infringed its copyright and the performer’s right.

Beijing No.1 Intermediate People’s Court held upon hearing the case that, China Pingju Opera Theater which recomposed and organized the disputed opera should be entitled to the copyright and, as the performing organization, will enjoy the performer’s right.

Based on the afore-mentioned facts, Beijing No.1 Intermediate People’s Court made a judgment that CRC’s actions had constituted copyright infringement and they would be responsible for compensation. CRC were bit satisfied with the judgment and appealed but did not question the afore-mentioned facts. Beijing Higher People’s Court therefore affirmed the original judgment.

Lawyer’s Comment:

In this case, by virtue of the defendant infringing multiple rights of the plaintiff, the ownership of the performer’s right is not the key issue. So that the court can direct identify the China Pingju Opera Theater, acting as the performing organization means they are the right holder of the performer’s right. Does this mean that the individual actor cannot enjoy the performer’s right? The two courts in this case did not give a clear view about this.

2nd Case: The performer’s right was solely owned by the performing organization, rather than the individual actor.

Appellant (defendant at first instance): China Federation of Literary and Art Circles (the “CFLAC”)

Appellant (defendant at first instance): Tianjin Tianbao Culture Development Co., Ltd (the “Tianbao Culture”)

Appellant (defendant at first instance): Tianjin Tianbao Optical Disk Co. Ltd (the “Tianbao Optical”)

Respondent (plaintiff at first instance): Guangdong Changjin Record Company (the “Changjin Record”)

Court of first instance: Hebei Province Higher People’s Court  No.: (2007)冀民三初字第1-1号

Court of second instance: Supreme People’s Court  No.: (2008)民三终字第5号

Changjin Record is, after obtaining authorization of the performing organization and the scriptwriter, the right holder of the copyright and the performer’s right of Double Faults leads to Grudge, Too Late to Repent (also known as “Da Jinzhuan”), Three Strikes at Tao Sanchun and the Butterfly Chalice (all referred to the “disputed operas”). Changjin Record found three defendants published the disputed operas without authorization and then brought the three defendants to court.

The Supreme People’s Court held that the preparation, organization and rehearsals of an opera were presided by the performing organization, and moreover all the needed props, costumes and capital were afforded by the performing organization. As such, a performance indicated the will of the performing organization and thus the performing organization shall be the “performer” as regulated in the Copyright Law. Since the performing organization is the “performer”, he is entitled to authorize others to make a live broadcast or audio recording. Therefore, without special agreement, an individual actor shall not be entitled to personally hold the afore-mentioned rights.

Based on the holdings, the court made a final judgment that Changjin Record is the right holder of the disputed operas and the actions of the three defendants constituted copyright infringement.

Lawyer’s Comment:

The similarity between the 1st case and the 2nd is that the performer’s right was ordered to be owned by the performing organization. However, the judgments explicitly indicated that without special agreement, the individual actor would not be entitled to own the afore-mentioned rights. In fact, there are no express provisions in laws and judicial interpretations for this, but because the judgment was handed down by the Supreme Court, it has important reference value.

3rd Case: Both the individual actor and the performing organization shall have the performer’s right.

We have searched media reports and checked out a judgment backed by Xicheng District Primary People’s Court in 1996 (No.:(1991)西民初字第887号), determining that even though Yu Tangchun was performed under the Peking Opera Theater, Mr Zhao Yanxia shall, as the leading actor, be entitled to the performer’s right and claim for his rights under the conditions of the performing organization organizing their performance.

Lawyer’s Comment:

With regard to this opinion, I think it has some rational value. Because a detailed performance shall be performed by different individual actors, therefore, the individual actor, especially the leading actors, should be entitled to their own rights. Since the performing organization costs so much inmanpower and material resources, the performing organization can no longer solely take the performer’s right for granted.

According to the above three judgments, it seems that there is no unified judgment towards the ownership of the performer’s right. Actually, I tend to agree with the judgment that both the individual actor and the performing organization shall be entitled to the legal rights and interests. However, there shall be a focus between the two legal rights and interests, in other words, the individual actor shall have rights for his own performance and the performing organization shall have the rights over the whole performance.

Of course, as for the performing organization and the individual actor, under the present legal system, the best way is to make a contract for the avoidance of doubt.

In the Beijing Treaty on Audiovisual Performances, there is an explicit stipulation about the ownership of the performer’s right. Article 12 of the Beijing Treaty on Audiovisual Performances stipulates 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.” Article 33 of the 1st amendment draft of the Copyright Law’s Exposure Draft regulated that, “the performer’s right shall be enjoyed by the producer in the audiovisual works, unless the parties have agreed otherwise”.As seen from these provisions, our legal tendency is to vest the performer’s right in the producer. As such, in the 1st case, the performer’s right in the audiovisual works does not necessarily go to the China Pingju Opera Theater.

The above is a brief analysis to the ownership of the performer’s right in our legal system and judicial practices. Seen from our analysis, the ownership of the performer’s right is still in a relatively grey area. We hope that, with the updated Copyright Law, legislative branches can pass laws and regulations to make the ownership of performers’ rights more clear.

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