With the accelerated negotiation process of my country’s accession to the World Trade Organization, the revision of intellectual property law is back on the agenda. On November 29, 2001, the State Council once again proposed a bill to review the "Amendment to the Copyright Law of the People's Republic of China (Draft)". Comrade Shi *yuan, director of the State Press and Publication Administration and director of the National Copyright Administration, pointed out in his supplementary explanation on the "Amendment to the Copyright Law of the People's Republic of China (Draft)" that at present, my country's negotiations to join the World Trade Organization have entered the final stage . There are still some gaps between some provisions of the current copyright law and the rules of the World Trade Organization, mainly the Agreement on Trade-Related Aspects of Intellectual Property Rights. In order to further improve our country's copyright protection system, promote the development and prosperity of economy, science and technology, and culture, and adapt to the process of joining the World Trade Organization, it is urgent to make appropriate revisions to the current copyright law. Director Shi also explained the modification of Article 43, which is to be revised to: "**Radio stations and TV stations may play published sound recordings without the permission of the copyright holder, but remuneration shall be paid to the copyright holder, and the parties concerned shall separately Unless otherwise agreed. Specific measures shall be prescribed by the State Council." This revised plan was not only opposed by some members of the Standing Committee of the National People's Congress and copyright holders, but also dissatisfied by some performers and recording producers. The copyright owner believes that for the copyright owner, copyright protection is first of all the permission of the rights, and secondly the receipt of remuneration. Without the right to license, the right to be paid is ultimately elusive. Performers and sound recording producers believe that it is unfair that the revised plan does not take into account the rights of performers and sound recording producers to playback of sound recordings, and ignores the creative labor and input of performers and sound recording producers in the performance and production process. A large amount of financial resources, and the protection of performers and sound recording producers has regressed compared to before the revision, because according to the 1990 Copyright Law, non-profit broadcasting of sound recordings must obtain the permission of performers and sound recording producers and pay them remuneration. Later performers and recording producers no longer even have this right. Broadcasting organizations believe that it is feasible to amend the draft not to grant performers and producers of sound recordings the right to broadcast sound recordings.
Because: First, the Agreement on Trade-Related Aspects of Intellectual Property Rights allows for restrictions and reservations on the broadcasting rights of performers and sound recording producers.
Second, in practice, ** radio and television stationsPlaying phonograms plays a promotional role in the sales of phonograms. Many performers have become famous through broadcasts on radio and television stations. Performers and phonogram producers often proactively provide phonograms to radio and television stations without asking for remuneration. , if performers and producers of sound recordings were given this right, it would tip the balance. Third, the number of phonograms played by ** radio stations is much higher than that of TV stations. However, ** radio stations are currently facing financial difficulties, and some are even in danger of stopping broadcasting because they cannot make ends meet. If performers and sound producers are given the right to play phonograms, It will have a great impact on the current extremely difficult ** radio station.
After further listening to opinions from all sides and repeated studies, we believe that:
First, in order to fulfill our country’s External commitments, modifications should comply with the provisions of international conventions. Article 11bis of the Berne Convention stipulates that authors have the right to broadcast their works, and the conditions for the exercise of these rights shall be prescribed by the laws of the member states, but in no case shall these conditions prejudice the author's right to reasonable remuneration. Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights stipulates: “All members shall limit limitations and exceptions to exclusive rights to certain special cases, which shall not conflict with the normal exploitation of the work and shall not be unreasonable to cause serious damage to the legitimate interests of rights holders." Article 14, after stipulating the rights of performers and phonogram producers, stipulates that any member may stipulate conditions, limitations, and exceptions to this right within the scope permitted by the Rome Convention. and reservations. Article 12 of the Rome Convention states: “If a phonogram distributed for commercial purposes or copies of such phonograms are used directly for broadcast or for any communication to the public, the user shall pay to the performers a total reasonable remuneration. or to the producer of the sound recording, or to both. In the absence of an agreement between the parties concerned, domestic law may set out conditions for the sharing of these remunerations." It also stipulates that any country may declare at any time that it will not enforce or in a certain The parties do not implement the provisions of Article 12. Judging from the above provisions, international conventions allow restrictions on the rights of copyright owners. It is allowed to reserve the rights of performers and phonogram producers to play phonograms.
Second, in order to facilitate the dissemination of the work and the completion of the propaganda tasks of the party and the government, the revision should be based on the actual situation of our country. At present, my country's copyright collective management organizational system is not yet complete, and it is still difficult for national radio and television stations to obtain permission from copyright owners to broadcast works. At the same time, funds for ** radio stations are relatively tight. Performers and recording producers must be paid for using sound recordings, which puts greater pressure on ** radio stations. The revision of the Copyright Law has supplemented and improved the provisions on the rights of performers and sound recording producers in accordance with the requirements of the Agreement on Trade-Related Aspects of Intellectual Property Rights. The temporary suspension of broadcast rights to performers and sound recording producers is in line with the provisions of international conventions and is also in line with the actual situation of our country. . After thorough consideration, the revised copyrightThe law maintains the provisions of the State Council bill.
** Radio and television stations shall pay remuneration to the copyright holder for playing sound recordings. If both parties agree not to pay remuneration, they may also comply with the agreement. Performers and sound producers do not have the right to play sound recordings, and there is no issue of obtaining their permission or paying them. However, performers and sound producers have, after all, contributed creative labor to the production of sound recordings. Therefore, they can protect their rights and interests through contractual agreements. For example, when permitting others to use their performances or sound recordings they have recorded, they must clearly state The agreement shall not be used for broadcasting. If the licensee violates the agreement, it may be required to bear liability for breach of contract in accordance with the relevant provisions of the Civil Code.
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