Series of Articles on Copyright Protection (3) ─ Overview of Neighboring Rights (Mainland China)

April 2024

Di Wu and Teresa Huang

Neighboring rights, also known as related rights, refer to the exclusive rights enjoyed by the disseminators of a work and the creators of labor results outside the work over their labor results. With the advancement of technology, communication methods have become increasingly diverse, and protecting the disseminators of works and creators of non-works is of increasing significance.  We will elaborate on three aspects: the reasons for the emergence of neighboring rights, the classification of neighboring rights, and the relationship between neighboring rights and copyright.

I. The reasons for the emergence of neighboring rights

The main reason for the emergence of neighboring rights is that some intangible labor achievements, although having their own value, are not protected by the Copyright Law due to their low originality.  But it is necessary to effectively protect the results of the labor put into this part of the work.  Therefore, neighboring rights have emerged.

For example, the rights of performers, a performing artist’s performance of a work may have high artistic value.  However, performance activities, recording activities, and broadcasting activities are all secondary displays of existing works.  What performers do is only to display the content of the performed work to the maximum extent possible.  From the perspective of the audience, they must be faithful to the content of the work, and their originality is limited, making it difficult to achieve the level of “originality” of the work in the Copyright Law.  Therefore, a performer’s performance cannot become a work with “originality” protected by the Copyright Law.  However, although the performer’s performance does not produce new works, the performance activities objectively promote the dissemination of the works, and the resulting labor results face the risk of being easily copied and disseminated without permission, which urgently requires legal protection.

Therefore, a new type of right is established in the Copyright Law, specifically designed to protect labor achievements that are not highly “original” but have a certain connection with the work, in addition to traditional copyright.  This new type of right is called neighboring right.

II. Classification of neighboring rights

Based on domestic legal affairs, neighboring rights can be divided into the following categories: performers’ rights, broadcasting organization rights, audio and video producer rights, layout design rights, etc.

A. Performers rights

Performer’s right is a very important neighboring right, generally referring to the exclusive rights enjoyed by performers in their performance activities.  According to Article 39 of the Copyright Law, performers have the rights to indicate their identity as performers, protect their performance image from distortion, permit others to broadcast and publicly transmit their live performances and receive remuneration, permit others to make audio and video recordings and receive remuneration, permit others to copy and distribute audio and video recordings of their performances and receive remuneration, and permit others to disseminate their performances to the public through information networks and receive remuneration.

The subject of performer’s rights is the performer, that is, only the person who performs the work can be called a performer in the meaning of the Copyright Law and enjoy performer’s rights. Firstly, the person performing the work is the performer, regardless of whether the work has exceeded the protection period of the Copyright Law or has been protected by the Copyright Law. For example, the Four Great Classical Novels have already passed the protection period of the Copyright Law and have not been protected by the Copyright Law in history, but this does not affect the corresponding actor being a performer.  Secondly, if the work being “performed” is not a work within the meaning of the Copyright Law, the person engaged in “performance” activities is not a performer, and therefore cannot enjoy the right to perform.  For example, athletes on the sports field, although performing professional skills, their purpose is to pursue victory. Therefore, the content of their performances is not a work within the meaning of the Copyright Law, and athletes do not enjoy the right to perform.

The object of the performer’s right is the performance activity, which refers to the performer’s external expression of the work through their own voice, actions, and external tools.  If a performer performs a work multiple times, regardless of whether the content of each performance is the same, the performer has the right to perform for each performance.  For example, dance artist Yang Liping has performed the peacock dance on multiple occasions, and she has the right to be a performer for each performance.

B. The rights of audio and video producers

The right of the producer of audio and video recordings (hereinafter referred to as the recorder’s right) refers to the exclusive rights enjoyed by the producer of audio and video recordings over the audio and video recordings they produce.  Audio and video recordings can be divided into two categories: one is the recording of the results of the performer’s performance activities; The second is the result of recording events other than performance activities.  For example, recording conversations, real-life scenes, live competitions, etc.  The subject of the recorder’s rights, namely the producer of audio and video recordings, refers to the person who produces audio and video recordings for the first time, excluding pure reproduction.  The object of the recorder’s right refers to audio and video recordings, which are fixed on material carriers and lack originality in continuous images.  According to Article 40 and Article 45 of the Copyright Law, the content of the recorder’s rights includes:(1) the right to reproduction;(2) publication rights;(3) The right to information network dissemination;(4) Rental rights and (5) license for wired or wireless public dissemination rights, etc.

C. Broadcasting organization rights

Broadcasting organization rights refer to the exclusive rights enjoyed by broadcasting organizations regarding the program signals they broadcast.  According to Article 8, Paragraph 2 of the Regulations on the Administration of Radio and Television, the term “radio station” or “television station” referred to in this regulation refers to an organization that collects, compiles, produces, and broadcasts radio and television programs through wired or wireless means.  It can be considered that the subject of broadcasting organization rights are wireless broadcasting organizations and wired broadcasting organizations, but do not include network broadcasting.  The object of broadcasting organizational right is the program signals broadcasted by broadcasting organizations.  It should be noted that program signals are not equivalent to radio and television programs produced by broadcasting organizations.  Because radio and television programs can be protected through other means.  According to Article 47 of the Copyright Law, the content of broadcasting organization rights includes:(1) broadcasting rights;(2) Recording and copying rights;(3) Information network dissemination rights, etc.

D. Layout design rights

Layout design rights refer to the design of the layout format of printed materials, including the arrangement of layout factors such as type area, layout, typography, line spacing, punctuation, etc. The same work is published by different publishers, such as the Four Great Classical Novels, and there will be significant differences in layout.  Although it does not have high originality, it also reflects the labor achievements of the publishers.  It is obviously unfair not to restrict other publishers from using the same layout when publishing the same work.  Therefore, it is necessary to sort out and protect the layout design rights.  According to Article 37 of the Copyright Law, publishers have the right to license or prohibit others from using the layout design of their published books or journals.

III. The Relationship between Neighboring Rights and Copyright

A. The connection between copyright and neighboring rights

Copyright refers to the exclusive rights enjoyed by authors and other copyright holders over literary, artistic, and scientific works.  Neighboring right, also known as “work disseminator right”, refers to the exclusive rights enjoyed by the disseminators of a work and the creators of labor results outside the work over their labor results.  In a sense, copyright can be referred to as the premise and foundation of neighboring rights, and neighboring rights promote the development of copyright in the dissemination and promotion of works, which are closely connected and interdependent.  Copyright owners can license their own works to others to generate neighboring rights through creative labor.  When exercising neighboring rights, the right holder still needs to obtain permission from the copyright owner.

B. The difference between copyright and neighboring rights

Firstly, the subject (rights/obligations holder) of copyright and neighboring rights are different.  The subject of copyright is the author who created the work.  The subject of neighboring rights is the role of disseminators of works, including performers, producers of audio and video recordings, radio and television organizations, and publishers.  Secondly, the objects protected by law are different between copyright and neighboring rights.  The object of copyright protection is the works created by authors under the Copyright Law, including works in the fields of literature, art, and science.  The objects protected by neighboring rights are the performances, audio and video products, radio and television programs, layout design of books and magazines, and the exclusive publication of books.  Thirdly, the two involve different rights.  The scope of copyright rights includes the personal rights of the author (including the right to publication, authorship, modification, and protection of the integrity of the work) and property rights (including economic rights such as reproduction, distribution, rental, and exhibition).  Neighboring rights also include personal rights (such as authorship) and property rights (such as reproduction rights, distribution rights, information network dissemination rights, etc.), but their scope is smaller than copyright.  Finally, the legal protection of copyright is relatively comprehensive and direct, with a strong degree of protection.  The exercise of neighboring rights is limited by the copyright of relevant works, which requires obtaining permission from the copyright owner and paying remuneration to the copyright owner, and shall not infringe on the original copyright of the work in any way.

In summary, there are both connections and differences between copyright and neighboring rights.  The two promote each other and improve the protection of related rights.

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