A Study On The Rights Of Performers In China’s Audio-visual Works

The Beijing Treaty on audiovisual performances came into effect in April 2021.The treaty was signed against the background of digital network technology impacting traditional performers’ rights,which means that performers’ rights have been further improved at the level of international protection.As a country that concluded and founded the treaty,China has attached great importance to the performing industry.We should reflect on the shortcomings of our own legislation and make corresponding adjustments to further stimulate the creative enthusiasm of performers and promote the prosperity of our performing industry.According to the legislative and judicial practice in China,this paper summarizes the following three aspects to be improved: firstly,the legislative language of the performer’s right subject of audio-visual works is not clear,which leads to misunderstanding of some non main actors and advocates the performer’s right;secondly,the development of science and technology brings the further expansion of audio-visual works market,the extension of industrial chain and the income gap between the producers and performers of audio-visual works.In fact,performers still enjoy the right to pay only once;finally,the commercial use of performers’ performance image is increasingly rampant,and the practice of the court is not unified in judicial practice.At present,the cross protection mode of personality right,copyright,trademark law and anti-unfair competition law has various shortcomings,which can not reasonably and comprehensively protect performers’ rights.Combined with China’s copyright law(2020)and China’s audio-visual works industry in which the producer has the right to speak,this paper improves the rights system of performers of audio-visual works,and pays attention to the supporting measures for the realization of rights and the connection with relevant legal systems.The specific system design is as follows: firstly,according to the form of using performance,the negative exclusion legislative mode is adopted to limit the scope of the right subject of the performers of audio-visual works;secondly,drawing on the excellent experience of international and other countries’ legislation on the "second reward right",combined with the development status of China’s audio-visual works industry,this paper constructs the "second reward right" system for performers of audio-visual works in line with China’s national conditions.It is suggested to introduce the performer’s "second reward right" in the way of legal priority and keeping the party’s autonomy space,and make it clear that the performer exercises the right by himself or by transferring it to the collective management organization.It is demonstrated that the obligation subject of "second reward right" is the producer and the specific payment method and payment standard.In this process,we should pay attention to the regulatory role of relevant collective management organizations;finally,through the analysis of the loopholes in the protection of performers’ performance image of audio-visual works in China and the needs of social economic development,it is proposed to stipulate the right of image in the economic rights of performers’ rights and elaborate the content of rights,so as to improve the utilization efficiency of performance image in bilateral trading activities.