| The preface introduces the long-standing dispute between “signal-based protection”theory and “program-based protection” theory.Chapter one states that there is no clear definition of the subject matter of the rights of broadcasting organizations in all the laws and treaties relating to the rights of broadcasting organizations – the existing and new Copyright law after the third amendment,the Rome Convention and the TRIPS agreement,and the countries around the world fail to adopt a more consistent way to protect the rights of broadcasting organizations,which leads to the unclear connotation of the subject matter and the ambiguity of the content system of the rights of broadcasting organizations.This paper holds that “signal-based protection” is more in line with the legislative purpose of adjacent rights and broadcasting organization rights,and can also distinguish the contribution of radio organizations from the contribution of the authors of works contained in radio and television programs,and is in line with the “signal-based protection” adopted by the Treaty on the Protection of Radio organizations under development.If the broadcasting organization is the owner of the relevant program of its broadcast,it can claim copyright and recording rights.Chapter two analyzes the legitimacy of the right of “signal-based protection” theory from four aspects: the legislative intent,the requirements of international treaties,the criticism of “program-based protection” theory and “radio and television-based protection” theory.Signal is the result of broadcasting organizations’ contributions(especially the fundings),thus,“signal-based protection” helps us distinguish the contributions between broadcasting organizations and rights holders of the programs carried by the signals,and will not result in encroachment on the public domain,in a way that is consistent with the consensus reached in the process of formulating the WIPO Treaty on the Protection of Broadcasting Organizations.There are problems in the supporting views “program-based protection” and “radio and television-based protection”,such as the idea that the object of neighboring rights should be intangible as the object of copyright,but the protections of many kinds of neighboring rights are derived from the classification of legal interests in the unfair competition law,there is no such rules that the object of neighboring rights should be intangible.There is also a view that the program theory can better protect the interests of broadcast organizers,but the benefits that broadcast organizers “have now obtained” are not entirely the they“should obtain”.On the contrary,the protection of that benefits may affect,restrict or encroach on the public domain.Finally,the “radio and television-based protection”holds that the object is the “selection and arrangement of the program groups with recognition”,which is difficult to distinguish from the judgment of “original selection and arrangement of content” of compilation works,which can easily lead to blurring the boundary between programs and compilation works.And it’s not clear that the how many programs are needed to reach the “program group” standard.Therefore,the theory of “radio and television theory” only appeared to cater to the expression of the provisions of the copyright Law but lacked maneuverability in practice.On the basis that the object of the rights of broadcasting organizations is signal,Chapter three analyzes the connotation and necessity of each right item of the rights of broadcasting organizations in China’s Copyright Law.First one is the clarification that the right of broadcasting organization should include both the right of prohibition and license.After that,from the perspective of textual interpretation,systematic interpretation,legislative interpretation and historical interpretation,this dissertation makes clear that the scope of rebroadcasting right of the new Copyright Law,which includes synchronous ways of traditional cable,wireless and rebroadcasting through internet.For the necessity of right to record,copy and communication to the public through internet,the key is whether the signal can be fixed.For the signal is dynamic electromagnetic wave,it cannot be preserved stably for a long time.At present,there are some views saying that “the signal can be saved”,but the signal it refers to is actually the information that the signal is transformed into,even if it can reproduce almost the same signal as the broadcast signal originally received from the broadcast signal,the signal is no longer the signal that the broadcast organization originally transmitted.Therefore,the behavior of recording,reproducing and communicating to public through internet cannot be carried out against fleeting signals,but only against radio and television programs,which is inconsistent with the “signal-based protection”of rights of broadcasting organizations,and should not be included in the system of the rights of broadcasting organizations.At the same time,the contribution of the broadcasting organization is to disseminate specific radio and television programs to the public at a specific time period.Its contribution is the disseminate behavior,not the content.If the public does not choose to listen to the radio or watch the television program at that particular time period,but to choose a version of replay or web-on-demand,that means they do not choose the specific signal transmitted by the broadcasting organization.Since broadcasting organizations can only have the right of signals,they have no right to control the recording,reproduction and communication to public through internet.On the basis of“signal theory”,in order to make the second paragraph of the clause play a role,it should be interpreted that the broadcasting organizations can only claim the right to record,copy and communicate to the public through internet for programs they produce and broadcast.Finally,since the signal cannot be saved,there is not necessity to set the term of protection for the rights of broadcasting organizations. |
