Pure Remuneration Right in Copyright Law-Institutional Logic and Normative Structure
In 2020,a remuneration right for the secondary use of a phonorecord,which is based on Article 15 of WPPT,was introduced into the Chinese Copyright Law.This raises the question of why the Copyright Law needs a remuneration right,especially when the Civil Code stipulates that copyright and neighboring rights are exclusive rights in China.At the inter-national level,remuneration right for the secondary use of a phonorecord,together with resale right,public lending right,and residual remuneration right for audio-visual recordings,falls in-to the category of pure remuneration rights(or remuneration rights per se).As a special design in copyright law,pure remuneration right is just a claim for compensation,which does not re-strict others from the unauthorized exploration of copyrighted works.It is directly stipulated by law and does not rely on the existence of an exclusive right,regardless of whether it is outside the scope of the exclusive right or the exclusive right has been transferred or exhausted.Be-sides,pure remuneration right is also very different from statutory licenses based on exclusive rights in terms of normative structure.Pure remuneration right,especially that in Germany,has its roots in the tradition of the author's right.Generally speaking,the institutional logic of pure remuneration right is quite different from that of exclusive rights and their limitations in copy-right law.The aim is to correct the imbalance of interests in the industrial value chain under the framework of exclusive rights by directly re-allocating the benefits arising from the exploration of copyrighted works.At the same time,the introduction of a pure remuneration right will not change the existing exploration order of copyrighted works,which is confirmed by exclusive rights and their limitations.Therefore,pure remuneration right should only be deemed as a sup-plement to the market mechanism outside the framework of exclusive rights and their limitations in copyright law.However,opposing opinions are so strong that each interest group would ex-press the concern that such a reallocation of benefits would have negative impacts on the whole market.Therefore,this field is full of controversy.To ensure the effective operation of the norms of pure remuneration right,it is necessary to clarify that pure remuneration right cannot be waived or transferred in principle and to improve the collective management system,so that a centralized exercise mechanism for pure remuneration right can be established.As for the calcu-lation of reasonable remuneration,it should be based on the market value arising from the explo-ration of copyrighted works while at the same time taking into full consideration the degree of contribution of the right holder.Besides,a well-functioning and professional dispute-resolution mechanism should also be established.
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