论《视听表演北京条约》权利转让条款——兼论《中华人民共和国著作权法》视听表演权利转让的修订

Commentary on Article on Audiovisual Performances in the Beijing Treaty——Study on the Transfer of Audiovisual Performers' Right in the Copyright Law Revision

《视听表演北京条约》的权利转让条款是该国际条约制定与实施的成败关键。在法理层面,该权利转让条款在主体、客体以及转让方式上具有理论创新,值得我国《著作权法》第三次修改借鉴。我国《著作权法》两次修订草案虽以该国际条款为鉴,但仍有值得商榷之处,应根据法理和我国国情加以完善。

The Article for Transferring Performers＇ Rights has a significant impact on the impact and enforcement of the new＂Beijing Treaty on Audiovisual Performances＂. There are some important innovations in this article, particularly related to the subjects, objects, and method involved in the transfer of rights. In China, Article 33 of the First Copyright Law Exposure Draft and Article 36 of the Second Copyright Law Exposure Draft are implementations of the rules in this new treaty. However, there are some problems in the Chinese implementation which need to be discussed further and can only be resolved by researching the rationale behind new convention, other legal principles, and the conditions in China.