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CHINA LEGAL SCIENCE 2020年第5期|体育赛事节目可版权性的司法认定及保护
日期:20-10-15 来源: 作者:zzs

THE JUDICIAL IDENTIFICATION AND PROTECTION ON THE COPYRIGHTABLE SPORTS EVENT PROGRAMS


Chen Jinchuan & Zhang Can



I. INTRODUCTION


The approach to legal protection of live broadcast of sports events has been a controversial issue in copyright practice and theory, with the major argument about whether the motion images carried in the live broadcast of sports event should be construed as works created by a process analogous to cinematography or video recordings under the Copyright Law of China. Undoubtedly, such legal identification matters to the right holders, for, generally speaking, a work of authorship enjoys a much wider range of exclusive rights than a subject matter of neighboring rights. The case of CCTV International v. Baofeng Group, concerning the online piracy of sports programs of the Brazil World Cup games, bears some representativeness and typicality in this regard.  A detailed study on this case might facilitate relevant discussion and research. 

The first part introduces the basic facts of the case, the findings of the court of first instance and the summarization of focuses of disputes by the second instance court; the second part analyzes the constituent elements of cinematographic works under the Copyright Law of China, which offers an accurate definition based on the law and,+ most importantly, serves as the premise for later reasoning; the third part studies the reasoning of the second instance court and its application of corresponding legal rules; the fourth part is about the merits of the second instance judgment, the inspiration to later similar cases and some suggestions for better protection of live broadcast of sports events; The last part is a brief conclusion. 

II. BASIC FACTS AND FOCUSES OF DISPUTES 

According to the official statement of the Brazil World Cup, Federation Internationale de Football Association (FIFA) globally owns all the rights of the World Cup, including but not limited to copyrights. FIFA granted an exclusive authorization to China Central Television (CCTV) to broadcast the 2014 World Cup football games in China’s mainland, including real-time transmission and on-demand transmission through cable, satellite, and the Internet. CCTV International Network Corporation, Ltd (hereinafter referred to as CCTV International) has obtained a package of exclusive authorization from CCTV with regard to all rights related to the Internet and has been empowered to claim these rights in its own name as early as in 2009. During the period between June 13 and July 14, 2014, CCTV live broadcast all the 64 football matches of the World Cup to TV viewers in China’s mainland, and CCTV International provided the public with online streaming of the sports programs via the Internet. 

Afterwards, CCTV International found that Baofeng Group Stock Corporation, Ltd (hereinafter referred to as Baofeng Group) had utilized its website (www.baofeng.com) and its media player software (Baofeng Video 5 Player) to offer online transmission of short videos concerning the World Cup games to netizens without CCTV International’s permission. In order to recommend and display these short videos, Baofeng Group posted up a special page named ‘2014 World Cup’ on the homepage of its video website, and launched a ‘World Cup Theater’ column in the prominent position of its media player software. Most importantly, these short videos are identical to the sports programs broadcast by CCTV. In the rights holder’s opinion, the sports event programs broadcast by CCTV from the signals provided by FIFA constitute cinematographic works under the Copyright Law of China, and Baofeng Group has infringed its copyright by extracting short videos from its sports event program and posting them on the Internet. Therefore, CCTV International brought a suit against Baofeng Group to the People’s Court of Shi Jingshan District of Beijing, claiming for a compensation of 4,000,000 yuan.

The court of first instance did not deem the disputed sports programs to be cinematographic works, but still awarded the plaintiff 672,400 yuan in damages for the following reasons. First, according to the found facts and the defendant’s self-recognition, the short videos are extracted from the sports programs of the World Cup games, which are produced by FIFA and broadcast by CCTV. And the sports programs are in essence a series of motion images with accompanying voices, which are filmed by the producer on-site at these matches, technically integrated with such content as subtitles, commentary, highlights, accompanying music, etc., and transmitted to terminal equipment including but not limited to TV sets through wireless signals. These motion images can be fixed upon a certain medium. Nonetheless, the producer in the aforesaid process is not in a dominant position for its subjective option and original expression are very constrained as to control of the game process, selection of the content to be filmed, sequence of the commentaries, position of the cameras, etc. Therefore, the originality of the sport programs does not satisfy the originality requirement of cinematographic works or works created by means similar to cinematography specified in the Copyright Law of China, but they fit into the definition of video recordings therein, and shall be deemed as such. Second, the short videos posted on the defendant’s website are extracted from the disputed sport programs. Actually, it is an act of reproduction. And without the authorization of the rights holder, the defendant provides the public with online transmission of the infringing short videos, which constitutes communicating works to the public over information networks and infringes the corresponding exclusive rights of the plaintiff. Third, since the plaintiff has failed to prove its exact losses and the infringer’s substantial gains resulting from the infringing conducts, the court will decide the amount of monetary compensation in consideration of the maliciousness of the defendant, the popularity of the infringed sport programs and the coverage of the contents of the infringing short videos, etc.

Both parties are dissatisfied with the judgment of first instance. The plaintiff insists that the disputed sport programs enjoy a high level of originality and constitute works created by means similar to cinematography rather than video recordings, and the compensation awarded is insufficient to cover the economic losses it has suffered. Thus, the plaintiff appeals this case to Beijing Intellectual Property Court (BJIPC), requesting that BJIPC dismisses the judgment of first instance and supports its compensation claim of 4 million yuan in full scale. On the other hand, the defendant also files an appeal to BJIPC with primary reasons as follows: First, it has used the alleged infringing short videos for the purpose of news reporting, which should be exempted from copyright infringement. Second, the compensation amount awarded by the court was too high, which lacks factual and legal basis. So, the judgment of first instance shall be revoked or remanded, and all the claims of the plaintiff dismissed. 

BJIPC confirmed the factual finding of the first instance court. Besides, the second instance court found that in a license agreement regarding the online transmission of the disputed sports event programs signed by the plaintiff with two other companies, the license fee for non-exclusive online transmission with a two-month licensing period amounts to 40 million yuan. According to both parties’ appellant opinions, BJIPC summarized the focuses of disputes in this case as follows: First, whether the disputed sports programs of the 64 football matches constitute works created by means similar to cinematography specified in the Copyright Law of China, if not, whether they constitute video recordings thereunder; Second, whether the using of the short videos by the defendant falls into the scope of article 22 of the Copyright Law of China, thus exempt from copyright infringement accusations; Third, whether the compensation imposed by the court of first instance is appropriate and fair. 

III. CONSTITUENT ELEMENTS OF CINEMATOGRAPHIC WORKS UNDER THE COPYRIGHT LAW OF CHINA

Cinematographic works and works created by a process analogous to cinematography means works which are recorded on some medium, consisting of a series of images, with or without accompanying sound and which can be projected with the aid of suitable devices or communicated by other means. So in terms of constituent elements, cinematographic works and works created by a process analogous to cinematography (collectively ‘cinematographic works’) should at least meet the requirements of fixation and originality.

Notably, based on the definition and in combination with the basic attributes of works, the core elements of cinematographic works are the specific plot or material. Only the series of motion images which are formed through the use of plot and are able to express the author’s basic thoughts and feelings may be construed as cinematographic works. Normally, cinematographic works could either arouse resonance spiritually among the audience (such as feature movies or documentaries), or bring visual enjoyment (such as scenery movies), or both. The Copyright Law does not put emphasis on the presence of creative components such as screenwriting, acting and editing, it is not so much the process employed which is analogous as the effects, sound and visual, of such process.

A. The Issue of Fixation

Cinematographic works protected by the Copyright Law of China should be ‘recorded on some medium’, which requires that cinematographic works should be stably fixed on a tangible medium. Actually, the fixation requirement for cinematographic works has been clearly reflected in the Berne Convention for the Protection of Literary and Artistic Works (Paris text 1971) (hereinafter referred to as the Berne Convention). Article 2(2) states: ‘It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form’. Since item(2) is based on item(1), and the types of works specified in item(1) include cinematographic works, that is to say the Berne Convention has left the decision of fixation issue to each member state. 

One of the reasons why the Berne Convention involves the fixation of works is that the rapid development of television after World War II makes it a reasonable and urgent demand to protect television programs, and such a demand is reflected in the process of the revision of Berne Convention. However, there are differences among member states on whether to protect them as cinematographic works. Some argue that although television programs can be streamed after being filmed, they can also be broadcast directly without being filmed on a material medium, that is to say, they can exist in the form of ‘unfixed’, which is different from ordinary films. In order to seek common ground while reserving differences, during the revision process of Stockholm Conference of the Berne Convention, it was generally agreed that television programs could be regarded as cinematographic works, but whether they need to meet the fixation requirement should be decided by the domestic legislation of each member state.

Since the Regulation for the Implementation of the Copyright Law of the People’s Republic of China (hereinafter referred to as the Implementation Regulation) clearly stipulates that cinematographic works should be filmed on a certain medium, China regards fixation as one of the constituent elements of cinematographic works. Besides, article 10.13 of the Copyright Law of China says that ‘Right of cinematography, i.e., the right to fix a work on a medium by cinematographic or similar means ’, which explains from another angle that China’s copyright law has a fixed requirement for cinematographic works.

Nevertheless, it is necessary to note that the constituent elements of different types of works are not identical under the Copyright Law of China. Although fixation is a constituent element of cinematographic works, it is not a common element of works in general, for example, oral works do not need to be fixed. Therefore, the understanding of the constituent elements of other types of works should still be in accordance with the specific provisions of the law.

B. The Issue of Originality

Although originality is the common attribute of all types of works of authorship, the judgment of originality in different types of works differs in terms of the angle and level. Therefore, in order to accurately investigate the originality requirement of cinematographic works, we should pay attention to both the angle and level issue and allow for the intrinsic characteristics of such works. 

1. Level of Originality. — The Copyright Law of China adopts a copyright/neighboring right dichotomy. In terms of cinematographic works, video recordings are correspondingly specified in the neighboring right system. In the combination of articles 4 and 5 of the Implementation Regulation, it is clear that continuous motion images can constitute either cinematographic works or video recordings. Under such circumstance, it is necessary to clarify the distinction between cinematographic works and video recordings at first. What has been commonly recognized is that the difference between them is associated with originality, the divergence, however, lies in whether such difference is derived from the presence of originality or a certain level of originality. In this regard, there are neither explicit provisions in the Copyright Law and the Implementation Regulation, nor can we find the reference in the interpretation of the Copyright Law published by relevant participating legislators. Moreover, we cannot find any provision or interpretation in international conventions, as there are no international conventions or treaties governing video recordings. As a result, we have to try to analyze this issue from the following three perspectives, namely, the systematization of the Copyright Law of China, the historical development of copyrights and neighboring rights regime and the existing judicial practices.

First, in addition to video recordings, the subject matter of neighboring rights set forth in the Copyright Law includes typographical designs, sound recordings, performances and broadcasting programs. Although each subject matter bears their own uniqueness, they share certain commonness to some extent. Hence, we can use the systematic analysis method to summarize the commonness among different subject matters of neighboring rights and understand the difference between copyrights and neighboring rights. Specifically, if all other subject matter other than video recordings does not possess the individualized selection, then in the absence of contrary provisions of any authoritative legal documents, it can be inferred that video recordings are not likely to have individualized selection based on the commonness of the subject matter of neighboring rights. However, if the individualized selection is found in any other subject matter of neighboring rights, the opposite conclusion can be soundly drawn.

Now take the performance of songs as an example. For the same song, the performances of different performers are not likely to be exactly the same, and in many cases, there are enough individualized differences for the audience to sense. But because these differences have not yet substantially affected the melody of the musical works and no new musical works have been produced, thus the performers’ individualized performance can only result in the protection of neighboring rights. Likewise, the performance of a song is a kind of representation of its lyrics and tunes, which inevitably manifests some differences compared with the original ones. The fact that the Copyright Law grants spiritual rights to performers also indicates the recognition of the individualized expression in performances to some degree. 

It is also true of sound recordings. Accordingly, a sound recording can be either a recording of a performance of works or a recording of non-works (i.e. other sounds). In the recording of musical works, even for the same song performed by the same singer or the same composition performed by the same musician, the sound effect of recording products made by different recorders seem to be different, which is obviously caused by the individualized selection thereof. In the recording of other sounds (such as various sounds in nature) which do not constitute works of authorship, as such recordings are not restricted by previously existed works, the individualized selection of different recorders lies not only in the recording of sounds, but also in the choice of sounds. Thus, they enjoy a much larger space for individualized selection than that in recordings of musical works. In spite of this, they also belong to the sound recordings category.

The above analysis shows that the subject matter of neighboring rights may contain individualized selection and subjective expression on many occasions. Equally, video recordings, as a certain type of subject matter, do not exclude the existence of intellectual creation. Therefore, it is logically fallible and unfeasible to distinguish the subject matter of copyrights from that of neighboring rights simply by the existence of individualized selection and originality. As a series of motion images are defined by the Copyright Law of China as cinematographic works and video recordings at the same time, the difference between them may only lie in the level of originality, rather than the existence of originality.

Second, the neighboring rights system is not unique to the Copyright Law of China, as a number of countries have introduced the copyrights/neighboring rights dichotomy into their copyright laws. And there are not only copyright treaties, but also neighboring rights treaties in the world, such as the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) and the WIPO Performances and Phonograms Treaty (WPPT). In addition, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) includes the contents of neighboring rights as well. The neighboring rights regime in the Copyright Law of China is established on the basis of reference to the provisions in international conventions and other countries’ practices. Therefore, the understanding of the historical origin of neighboring right is conducive to the comprehension of the difference between video recordings and cinematographic works.

From a global perspective, although definitions and provisions of different countries differ, it is acknowledged that performances, sound recordings, broadcasting programs are among the most common subject matter of neighboring rights. As the most influential international copyright treaty, the Berne Convention has been constantly expanding the list of subject matters during its revision process, whereas it has explicitly excluded the above subject matters of neighboring rights in the revision meetings. Originality is a major reason, but not the whole picture, for example, as for whether to include sound recordings into the Convention, one of the opposing opinions is that they are products of industrial nature. With regard to broadcasting programs, one of the objections is that they are mostly made by a group of people and it is difficult to determine who the author really is, which is also true of sound recordings. Given the issue of determining the author of cinematographic works has aroused great controversy among all parties, it is practical to prevent such problems from developing further by simply excluding sound recordings and broadcasting programs from the protection scope of the Convention. While the reasons for not granting performances copyright protection is that no one is able to copy and spread live performances until the beginning of the 20th Century, due to their transience and limitation to performing venues. The performers need little other protection other than that under contract law and unfair competition law. Even though later there does generate a need to stop illegal fixation and transmission of performances with the development of technology, performers have not earned as much protection as writers for their untimely action and diffusing organization.

Moreover, the subject matter of neighboring rights protectable in corresponding international treaties does not necessarily exclude individualized selection and subjective expression. A case in point is the recording of other sounds mentioned above, which is prescribed in both the Rome Convention and WPPT. Although video recordings are not included in the developing process of these conventions, chances are that they can still have individualized selection and intellectual expression, because they share some common characteristics with sound recordings and original elements have been found therein. Actually, in many cases, even in the case of mechanical recordings, the setting of cameras and the choice of scenes can demonstrate subjectivity and individuality of the producer.

In a nutshell, although the initial intention of neighboring rights regime is to encourage and safeguard the dissemination of works of authorship, rather than original expression and creation, the historical development of copyrights and neighboring rights system show that the formation of a certain subject matter of neighboring rights is determined by various factors: complex historical and cultural traditions, specific technological conditions, etc. It seems that the approach to copyright protection or neighboring rights protection for expressions of individuality and subjectivity depends on the institutional design and arrangement of the domestic law. For instance, sound recordings are copyright protectable in the US for they do not have neighboring rights protection regime in their national copyright law, while they are subject to neighboring rights protection in Germany for German copyright law has adopted neighboring rights system. Therefore, as video recordings are included in neighboring rights under the Copyright Law of China, the possibility of individualized selection and subjective judgment in video recordings still remains.

Third, in judicial practices, a majority of courts believe that some motion images regarded as video recordings possess a certain level of originality more or less. Such as, the Musical Videos (MV) with a relatively high level of originality can constitute cinematographic works, but it is also a common view that such MVs with just mere recording and simple technical processing of live stage performances, or with simple integration of images and music, or with simple recording of natural sceneries such as sea, beach and jungle can only be construed as video recordings. For example, in the case of Love Like Rainbow, the court holds that ‘the MV formed by adaptive position adjustment in the process of camera shooting or by simple editing and processing in post-production process should be recognized as a video recording. The images of the MV are taken from the movie Pan Zuoliang, which is produced by simple editing and processing of the movie pictures...’ In the Mulan Star case, the court holds that ‘the images of Mulan Star is composed of the images of the movie Hua Mulan and that of the concert, and the images of the other two are made up of the images of the concert. The three MVs fail to exhibit organic coordination of images and music as a whole, and belong to a mechanical blend of images and music, thus do not constitute cinematographic works.’ Regardless of this, it is still undeniable that the production of these motion images involves a certain degree of individualized selection and subjective evaluation of the producers.

To sum up, the standard to distinguish cinematographic works from video recordings lies in the level of originality as the Copyright Law of China has adopted a copyrights/neighboring rights dichotomy, whether from the perspective of the systematization of the Copyright Law of China, or from the perspective of the historic development of copyright and neighboring right system at an international level, or from the perspective of previous existed judicial practices.

2. From What Angles to Investigate Originality. — Different types of works of authorship, even sub-divisions of the same type of works, demand different angles to inspect their corresponding originality. According to the sources of materials, cinematographic works can be classified into documentaries and non-documentaries. Sports events programs are presenting of objective events, thus bear the nature of documentaries. If the sports event programs in this case constituted works of authorship, they would belong to the documentary’s category. To analyze its originality, we have to judge from the same angles as that for documentaries, which consist of at least three aspects as follows:

First, the selection of materials. Different from non-documentaries derived from original movie plots, the contents of documentaries all come from specific characters and events in real life. The director’s creative work is mainly manifested in how to choose and use various real materials. As a result, to judge the originality of this kind of cinematographic works, the first step is to identify and evaluate the director’s creative labor in material selection. Generally speaking, the wider the range of materials that can be selected, the higher the degree of originality in terms of the selection and application of materials, and vice versa.

Second, the filming of materials. The Copyright Law of China defines the expression form of cinematographic works as a series of motion images with or without accompanying sound, which is consistent to the filming of materials in actual shooting process. It is obvious that there may be individual differences as to the angle of shot, light and shadow, selection of subjects and visual effect in general. And in most cases, a veteran cameraman may bring a more smooth and sophisticated film than a not so experienced one. That is why specific filming skills and techniques count in the filming process. Even for the same material, different people may shoot different pictures.

Third, the selection and arrangement of filmed images. The ultimate form of expression of cinematographic works is a series of motion images, rather than a specific single photographic work. How to choose and arrange the shot images and form a complete work according to the director’s ideas may also give rise to individual differences. Even for the same material, the same shot images, different ways to select and arrange may lead to different cinematographic works, and the later editing and sometimes special effect are of great influence to the final forming of the works. 

Based on the above analysis, we believe that each documentary film should at least reflect the author’s individualized preference and subjective judgment in one or more of the above aspects.

C. Other Determinants of Judging Originality in Cinematographic Works
 
Originality in different types of works is incomparable with respect to the level as well as the angle to judge. Although some believe that the originality standard of other types of works can be applied to cinematographic works, it should be emphasized that the originality requirements for different types of works regarding the level and from what perspectives to be judged are not necessarily the same, which is also the view explained in the judgment of the case of LEGO by the Supreme People’s Court (SPC). Specifically, the difference in judging perspective is mainly due to the characteristics of different types of works, while the difference in level is related to the logical structure of the Copyright Law and the inter-relationship between the Copyright Law and other intellectual property laws.

Let us take single character calligraphy as an example to illustrate the influence of the type of work on the judgment of originality. Single character calligraphy may be associated with written works and works of fine arts, but whether it constitutes written works or works of fine arts needs to be analyzed from different perspectives. As the function of the written works is to convey feelings and express ideas, expressions need to be able to transmit relatively complete ideas to constitute written works. A single character can only be an element for expressing ideas, and cannot convey basically complete ideas. Thus, single character calligraphy cannot constitute written works. However, works of fine arts are expected to bring aesthetics in the field of arts. As single character calligraphy does serve the purpose of exhibiting aesthetic merits, it may constitute works of fine arts in this regard.

In terms of level of originality, practical artwork is a typical case in point. The requirement of a certain level of originality for practical artworks results from the inter-relationship between the Copyright Law and the Patent Law. Compared with other types of works, practical artworks are special in that they are not only protectable under the Copyright Law as works of authorship, but also under the Patent Law as designs. Given there may be an overlap of protection between the two legal instruments, the originality standard for practical artworks will inevitably have an impact on the protection under designs. If only minimum originality were required, the possible consequence would be that any practical artwork could constitute works of authorship as long as its shape is not confined to its functions. This may further lead to the situation in which it is hard to separate practical artworks from designs in industrial property rights. It is obvious that protection under industrial property rights does not enjoy any advantages over that under copyrights in terms of formalities and protection period. If all dispose to seek protection under the Copyright Law, the development of industrial property protection system will be subverted. Consequently, there should be a relatively high standard for practical artworks in terms of level of originality. The courts hold the same view in practice. The case of LEGO tried by the SPC mentioned above is a case in point. Additionally, in the case of LEGO, the court also held that three of the 53 building blocks claimed by the plaintiff did not reach a certain level of originality, thus could not be protected as works of authorship.

The originality requirement for cinematographic works is determined by the logical structure of the Copyright Law. In light of the fact that there is a subject matter of neighboring rights as video recordings correspondingly in our Copyright Law and the standard of distinguishing the subject matter of copyrights from that of neighboring rights lies not in the existence of originality, it is fairly evident that the difference between cinematographic works and video recordings rests in the level of originality. Just as a certain level of originality required for cinematographic works is caused by the logic structure of Copyright Law, so the level of originality requirement for the types of works that do not have corresponding neighboring right subject matter, such as photographic works, works of fine arts, etc. must be different from that of cinematographic works. And the originality requirements for the above types of works cannot be transferred to cinematographic works. The same degree of individualized expression may make a picture or painting constitute a photographic work or work of fine arts, but may not necessarily make a series of motion images constitute a cinematographic work. This should be attributed to the institutional arrangement of the Copyright Law, rather than a result of the judge’s discretion.

IV. THE REASONING OF THE SECOND INSTANCE COURT AND THE APPLICATION OF RULES  

A. Whether the Disputed Sports Programs Constitute Cinematographic Works

In this case, what the plaintiff claims to constitute cinematographic works are the broadcast contents of 64 football games which can be enjoyed by the audience on television. And they are mainly derived from two sources: one is the signals provided by FIFA, including images, sounds, subtitles, slow-motion playbacks, highlights, etc.; the other is the added contents in the live broadcast process by CCTV, mainly Chinese subtitles and commentaries. 

Just as we mentioned in the preceding part, the constituent elements of cinematographic works contain at least two parts in the Copyright Law of China: fixation and originality. As to fixation, it is equivalent to see whether the images carried by the signals of the World Cup matches have been fixed or not. Normally, that depends on the stage of the whole broadcast process. In the live broadcast, for a method of shooting-as-broadcasting is adopted, images of the whole game are not stably recorded on a tangible medium at this time, so the images carried by the live signals cannot meet the fixation requirement of cinematographic works. While after the live broadcast, the images carried by the signals have been wholly fixed on a tangible medium. At this stage, the images carried by the signals satisfy the fixed requirement. In this case, the disputed behavior is on-demand transmission through the Internet, which occurs after the live broadcast of the sports event and every game has been recorded on a material medium, so the disputed sports event programs meet the fixation requirement of cinematographic works.

As to originality, it is a much more complicated matter. Originality emphasizes individualized selection and intellectual expression, which is often influenced by both subjective and objective factors. Subjective factors are subject to discretion at a case-to-case basis, whereas objective ones can be analyzed at a typological basis. In general, the more objective constraints, the less space for individualized expression, and correspondingly, the lower the level of originality may be achieved. In order to correctly judge the level of originality in the disputed sports events programs, we need to combine the objective limiting factors, which mainly includes the objective situation of the sports event itself, the real-time nature of live transmission, the requirements for the professional competence of the broadcast team, the needs of the audience, and the production standard of the signals, with those three aspects from which the originality in documentaries is inspected, namely the selection of materials, the filming of materials and the selection and arrangement of filmed images.

First, in terms of material selection, it is a fairly natural thing that the materials to be broadcast in the World Cup must be each single match of the World Cup, and there seems no room for the broadcast team to choose what to broadcast. For even suppose the team has the option to broadcast or not, or to decide which game to broadcast, this kind of choice is not the selection of materials in an originality sense. So, the team has no room for selection if the sports event is viewed as an overall material. Of course, each game can be divided into several time periods, and each time period can literally be regarded as a separate material. However, as the fundamental requirement for broadcasting a game is to truthfully present the process of the game, the live broadcast team has no right to choose to film or not to film the game in a certain time period, but must film the entire game from the beginning to the end. That is to say, the producer enjoys no individualized selection in this regard.

Second, in terms of filming skills, the objective factors, such as the unified production standard of sports event signals, the satisfaction of audience’s needs, the shooting methods and techniques commonly used by photographers in order to meet up the level of live broadcast have greatly squeezed the space for individualized selection in the filming process. Specifically, a mature or prestigious sports event normally has its own signals production manual which should be rigorously followed in the live broadcast of its games. Although the completeness and intricacy of the manuals of different sports events vary, the most predominant contents therein are always about the setting and positioning of the cameras. For a setting of cameras covers a certain area, the space for personal selection is greatly limited, or even divested of. Nevertheless, the images taken by different photographers may still be slightly different. However, it cannot be ignored that in the filming process, they will be further restricted by the following two factors: one is the needs of the audience; the other is the shooting methods and techniques commonly used by photographers to meet the requirements of the live broadcast level.

The purpose of live broadcast of sports events is to enable the audience to better appreciate the games, and how to cater to the tastes of the audience is an inevitable issue. This also means that, for the photographers of each specific camera position in the live broadcast of a sports event, they theoretically can film whatever they like in the area for which they are responsible, yet, in reality, they will try their best to take into consideration the demands of the audience, which undoubtedly reduces their individualized choices. In addition, only broadcast teams reaching a certain level of professional competence are eligible to bid for live broadcasting these sports event. It is kind of common sense that there is always little room for improvement beyond a certain level. This is also true of those cameramen. For those high-levels, their shooting skills may not be identical, but may have a lot in common. Therefore, after meeting the needs of the audience, there has little space for intellectual creation. In this situation, the common shooting techniques of photographers of the same level can further play a limiting role in terms of individuality and subjectivity. 

Third, in respect of editing and arrangement, we know that the photographer transmits the images he shot to the director in the process of live broadcasts, and the director selects and collects the images from each camera, including choosing some specific scenes for slow motion playbacks. In this process, although there may be differences in the choices made by different directors, the first and foremost requirement of the event organizers is that the live broadcast of the event should completely and truthfully reflect the real situation of the sports competition event. Hence, the director’s choice of the scenes must be consistent with the actual process of the game. Of course, the game itself is uncontrollable in terms of its final result, but this does not mean the process of the game cannot be reasonably anticipated. Based on their understanding and experience, directors endeavor to make their selection and arrangement of images more in line with the process of the game. This ability has no substantial difference for directors of the same level. Accordingly, different directors will not have too much discrepancy in the selection and arrangement of images. Besides, signal production manuals of such kind of sports competition also stipulate some requirements for the selection of scenes and the use of slow-motion playbacks, such as shooting, fouls, etc., which, in an obvious manner, directly affects the director’s individualized expression.

Notably, the highlights are a special case in the images carried in the signals. Since the production of highlights is not determined by the real-time nature of the sports competition, directors usually select and collect them among all the shot images. So, there remains a relatively larger space for intellectual creation. We can say that the highlights may reach a high degree of originality only in terms of themselves. However, a highlight only accounts for a small part of a football game program. For example, the public signals of a Chinese Super League (CSL) game only contain a four-minute highlight part. Cinematographic works feature a series of motion images in which the author can express his whole thought by using plot. This attribute requires the originality of cinematographic works to be considered as a whole, rather than only part of the contents. Therefore, although the highlight part may enjoy a high level of originality, it is not enough to make the whole sports event program to meet up the originality requirement of cinematographic works.

Actually, depending on different sub-types of cinematographic works, the impact of objective constraints on individualized selection can be exacerbated. For example, documentaries have less intellectual creation and original expression than non-documentaries. While in terms of documentaries, live broadcast programs suffer much less individualized selection space than non-live streaming programs; and amidst the live broadcast programs, those with production standards enjoy less personalized selection than those without such kind of standards. Furthermore, it is obvious that those with the audience’s needs to meet, compared with those that do not have to consider their needs, possess far less individualized expression. Undoubtedly, the motion images carried by the signals of the World Cup games fall into the sub-type with the most objective restrictions. Even considering the highlight part with relatively larger space for originality, the live broadcasting signals as a whole cannot have the originality necessary for cinematographic works. Therefore, from a typological analysis, the motion images carried in the live broadcast signals of the sports events, which is completely limited by the above objective factors, are hard to meet the requirements of cinematographic works in terms of originality.

Of course, we do not deny live broadcasting programs of sports events in any case cannot meet the originality requirements of cinematographic works. The above conclusion is merely a typological analysis based on the comprehensive consideration of various limiting factors of the live broadcast of the World Cup games. However, in case the live broadcast of a certain sports event is not subject to such objective restrictions, or embodies some extra intellectual expressions, it may certainly constitute a cinematographic work.

In addition, the plaintiff maintains that the contents of the cinematographic works include not only the motion images carried in the broadcast signals, but also the added Chinese subtitles and commentaries. Normally, cinematographic works can contain words and sounds, but the dominant elements are the motion images, which characterize cinematographic works to be different from other types of works. Therefore, even if the Chinese subtitles incorporated into the disputed sports programs constitute written works and the added commentaries constitute oral works, they cannot make the whole live broadcast program constitute cinematographic works when the motion images therein do not make up cinematographic works.

B. Whether the Disputed Sports Programs Constitute Video Recordings 

According to the definition of cinematographic works in article 4 of the Implementation Regulation and that of video recordings in article 5, if a series of motion images do not constitute cinematographic works, they shall constitute video recordings. That is to say, although the disputed sports programs do not constitute cinematographic works based on the above analysis, they fit squarely into the definition of video recordings under the Copyright Law of China.

All the live broadcast contents of the 64 games claimed by the plaintiff include not only the signals provided by FIFA, but also the Chinese subtitles and commentaries added by CCTV. Among them, the rights of the producer of video recordings regarding the signals unquestionably belong to FIFA. Because FIFA has authorized CCTV to use all these contents for on-demand interactive transmission, and such on-demand transmission can only be implemented when the corresponding sports programs have been fixed. According to the Copyright Law of China, the fixed sports programs constitute video recordings. Particularly, the above authorization should be understood as including the right of communication over information networks in the right of the producer of video recordings. The Chinese subtitles and commentaries are added by CCTV on the basis of the signals provided by FIFA, so the relevant rights naturally belong to CCTV. As a result, CCTV has the rights of the producer of video recordings for the two sources of the disputed sports programs. The plaintiff has obtained these rights based on the authorization thereof and is entitled to claim these rights in its own name.


C. How to Evaluate the Conduct of the Defendant 

 As to whether the defendant’s conduct falls into the free use prescribed in article 22.1(3) of the Copyright Law, two conditions have to be met accordingly: one is the purpose of reporting news on current events; the other is whether the representation and quoting of works are inevitable and incidental.

For the purpose of reporting news on current events, the Copyright Law and the Implementing Regulations are not specified, but, actually, the provision is set up to fulfill the obligation under the Berne Convention. Hence, the specific contents in the Berne Convention and the interpretation provided in the Berne Guide published by WIPO can be used as a reasonable reference. According to the above documents, the main purpose of reporting news on current events is to let the public have a sense of participation, so it is necessary to copy and provide the public with words or works of authorship seen or heard during the event. Accordingly, if the work of others objectively appears in the news event, and the quotation or reproduction of the work is inevitable for reporting current events and news, such acts entail no permission of the copyright owner in order to encourage dissemination of news and promote information exchange.

Although the disputed sports programs are video recordings, not cinematographic works, paragraph 2 of article 22 of the Copyright Right Law of China stipulates that ‘The provisions of the preceding paragraph are applicable to limiting the rights of publishers, performers, producers of sound or video recordings, radio stations, and television stations.’ So, the foregoing understanding shall be applicable to the use of video recordings as well. In this case, the short videos provided by the defendant on its website are completely extracted from the sports program of the plaintiff, and only refer to the contents of the football games themselves. Obviously, this is not using other people’s works in the event for the purpose of reporting news, and the way the defendant uses these video recordings is not incidental and unavoidable reproduction or quotation thereof. As a consequence, the defendant’s conducts are not in line with the relevant provisions in article 22 of the Copyright Law of China and shall not be exempted from liability of infringement.

Then, the question comes to how to exactly assess the conduct of the defendant. Article 42 of the Copyright Law of China states that ‘With respect to a sound or video recording produced by a sound or video recording producer, the producer shall be entitled to license others to reproduce, distribute or rent out the recording, or disseminate it to the public via information network, and to receive remuneration thereby.’ In this case, the defendant, without permission, duplicated the video recordings of which the plaintiff had the right of producers of video recordings, and provided the public with the online transmission of the short videos through the company’s server. These acts constituted the reproduction and communication over information networks of the video recordings of the plaintiff, and infringed upon the right of reproduction and right of communication via information networks the plaintiff had for the video recordings.

D. How to Calculate the Compensation 

Article 49 of the Copyright Law stipulates that ‘Where copyright or a copyright-related right is infringed upon, the infringer shall make compensation according to the actual losses incurred by the right owner. Where the actual losses are difficult to calculate, the compensation may be paid according to the illegal gains obtained by the infringer. The compensation amount shall also include the reasonable expenses incurred by the right owner for preventing the infringement; Where neither the actual losses incurred by the right owner nor the illegal gains obtained by the infringer is determinable, the people’s court shall, in accordance with the particulars of the specific infringement, render a ruling to award compensation in an amount not more than 500,000 yuan.’

In this case, due to the actual losses of the right holder or the illegal gains of the infringer cannot be identified; the court of first instance has to determine the compensation amount according to paragraph 2 of article 49 of the Copyright Law. Both the plaintiff and defendant do not object to the application of this statutory compensation method. However, what should be emphasized is that the compensation limit of no less than 500,000 yuan is merely for a single infringement act. As the defendant commits multiple infringement acts in this case, the amount of compensation is not limited to 500,000 yuan. 

When deciding the compensation amount, the following particulars shall be taken into account: First, the plaintiff granted a non-exclusive license with a licensing period of just two months to a third party for on-demand transmission of the disputed sports programs at the rate of 40 million yuan, which should be considered as an important reference; Second, the Brazil World Cup has 64 games in total, and the short videos provided by the defendant cover all of them, reaching 1,663 segments, which are all the wonderful parts of each game. This inevitably will have a great impact on the lawful online transmission of the disputed sports programs; Third, the Brazil World Cup is the most attractive and influential international sports event in that year, which enjoys a huge commercial value; Fourth, as a well-known domestic video website, the defendant knows or should have known that CCTV is the only authorized official broadcasting media of the World Cup in China’s mainland. Regardless of this, the defendant still takes the short videos from the plaintiff’s sports programs to provide online streaming for the public, and promotes them in an eye-catching position. Such kind of acts explicitly show the intention of infringement, which should be seriously punished. Based on the above factors, BJIPC fully supported the plaintiff’s compensation claim of 4 million yuan.

V. THE MERITS OF THE SECOND INSTANCE RULING AND ITS CORRESPONDING ENLIGHTMENTS 

A. Accurate Revelation of the Legal Nature of Sports Event Programs
 
It is more argued whether the series of motion images carried in the live broadcast of sports events should be protected as cinematographic works or video recordings. However, the fixation issue in the live broadcast process is also extremely crucial for the protection of such sports programs and should to be clarified in the first step. Apparently, the court pointed out that the disputed acts had occurred after the live broadcast of the football games, and the online streaming services offered by the defendant were interactive transmission. So, the plaintiff claim copyrights have already been fixed on a tangible medium. This is a requisite for the discussion of whether the disputed sports event programs constitute cinematographic works or video recordings. If the fixation were neglected, it would be useless in judging the originality issue for the Copyright Law of China has fixation requirement for both cinematographic works and sound recordings. It can be illustrated in another case, the courts of the second instance revoked the judgment of the first instance court, for in the live broadcast process, the shooting as a broadcasting method is adopted, the motion images of the whole game are not recorded on a tangible medium, thus the motion images carried in the broadcast signals do not satisfy the fixation requirement of cinematographic works. From a rights holder’s perspective, the fixation issue is also of great significance with regard to the protection approach. If not fixed, the rights holder can only seek protection for the right of broadcast organizer under the Copyright Law of China.  Article 45 of the Law stipulates the exclusive rights of broadcast organizers, which is different from that of either the rights holder of a cinematographic work or the producer of a video recording.

After making a correct evaluation of the fixation issue, then the problem comes to whether the disputed sports programs should be qualified as cinematographic works or video recordings. Sports event programs are essentially audiovisual productions resulting from the filming and broadcasting of sports events. According to the Copyright Law of China, a series of motion pictures, with or without accompanying sound, could be regarded as cinematographic works or video recordings. So, it is somewhat confusing concerning whether the sports event programs constitute cinematograph works or video recordings under current legal provisions. The court of the first instance came to a right but the slightly arbitrary conclusion, and its reasoning is not sufficient and convincing enough. The second instance court adopts a pragmatic approach to exploring the underlying and fundamental elements to distinguish cinematographic works from video recordings under the Copyright Law of China. From a systematic and historical view, the court finds their distinction lies not in the existence of originality, whereas in the level of originality. Above the level, they are copyright protectable. Below the level, they can only be protected by neighboring rights as video recordings and this results from the logical structure of the Copyright Law, not the discretion of the judge. As to where to draw this line, it is a case by case issue; there is not a fixed universally applied standard. It is, however, not hard to find the right answer as long as we follow the way the court analyses the originality issue of works of authorship. 

Moreover, in order to accurately define its legal nature, the court dissects the sports event programs, the motion images carried in the signals provided by FIFA and the Chinese subtitles and commentaries added by CCTV. According to the analysis of the court, the Chinese subtitles may constitute written works and the commentaries may be qualified as oral works. In spite of this, they are not sufficient to change the overall legal nature when the sports programs are considered as a whole. As the advancement of technologies, the subject matter protectable under the Copyright Law is becoming increasingly complex and delicate. Thus, more vigilance is needed in the judicial identification of their legal nature so as to grant proportionate protection. 

B. Elaborate Analysis of the Originality of Sports Event Programs

The originality issue is the core issue of this case, the foundation of the whole copyright regime as well. The reason why we offer copyright protection to the rights holder of a work of authorship is that the work is independently created and reflects individualized selection and subjective expression, which inevitably exhibits aesthetic merits in literature, arts and science and such kind of intellectual creation is worthy of protection so that the author’s spiritual labor could be awarded and the creation of later excellent works could be encouraged. This is exactly how copyright protection system works. On the other hand, the Copyright Law covers a variety of subject matters, not only of copyrights but also of neighboring rights. In coordination of the logical structure of the Copyright Law with their respective innate characteristics, different types of works entail different criterion for assessing their originality. Taking an even broader view, although the originality requirement of copyrightable works has gradually come to a convergence between the two legal families, the initial standard for judging original labor within works quite differ. The British courts adopted a ‘sweat of the brow’ doctrine in the early days, then the US courts hold that originality merely require independent creation plus a modicum of creativity and the requisite level of originality is extremely low, even a slight amount will suffice. Whereas, for many civil law countries have adopted a copyright/neighboring right dichotomy in their copyright law, their standard for works of authorship are much more rigid. German law has traditionally defined a work of authorship as the author’s own intellectual creation. 

In judging the originality of the disputed sports programs the court elaborated on why the level of originality of the motion images carried in the live broadcast of the World Cup is not sufficient to be regarded as cinematographic works from a systematic view of the Copyright Law of China, the historical development of neighboring rights regime and the existing judicial practices. Presumably, if the disputed sports event programs constituted cinematographic works, they would be deemed as documentaries. In terms of documentaries, the constantly adopted way to identify their originality is from the three aspects, according to the real process of filming a documentary, namely, selection of material, film skills, editing and arrangement. From these three aspects does the court find the objective restrictions to the individualized selection and subjective judgment in the process of filming such sports event programs? These limiting factors include the transmission mode (whether real-time or on-demand), the needs of the audience and the signals production manual. What is more, the court does not deny the possibility of sports event programs constituting cinematographic works as long as they are not restricted by such objective factors the same as in this case and reflect intellectual selection and creation from the aforesaid three angles. Therefore, there is not a universal standard for judging originality in sports event programs, and they should be investigated at a case-by-case basis. In spite of this, the court of second instance exhibits a clear and logical way for thinking about similar cases. 

C. Resolute Curb on Online Piracy of Live Sports Broadcast 

The sports industry in China is developing rapidly, and the broadcast right is a major revenue for the organizers of the sports event. Online piracy of sports event programs is detrimental to the healthy development of the broadcast industry, which attracts the audience of licensed programs and affects rights holder’s market shares, regularly usurps professional sports programs produced by rights holders. Given the lawful license fee is much higher than what the plaintiff has claimed and other relevant factors, the court of the second instance lifted the compensation amount and fully supported the compensation claim of the plaintiff. The raising of compensation amount has the factual and legal basis of course. More importantly, it transmits a more valuable signal that the judicial protection of intellectual property rights in China is improving and Chinese judiciary sector is making efforts to safeguard rights holder’s legitimate rights and strengthen the intellectual property protection by increasing compensation to deter later infringements. 

This case demonstrates the court’s determination to curb online piracy of sports event programs, and it sheds some illumination for the banning of on-demand interactive transmission of sports event program. While looking beyond this case, there still remain some obstacles as to enhancing legal protection of live broadcast of sports event in the Internet environment. On the one hand, for the live broadcast of sports events, let us say the authorized broadcaster adopted a shooting-as-broadcasting method; the fixation requirement is not met. Thus the authorized broadcaster can only be protected as the broadcast organizer. And article 45 of the Copyright Law of China prescribes the exclusive rights of broadcast organizers and prohibits rebroadcasting the sports event program that it has broadcast. That is to say, the authorized broadcaster can prevent other television stations from rebroadcasting the live broadcast of the sports event. Nevertheless, two points are worth noticing: First, rebroadcasting in article 45 means simultaneous transmission by wireless and wired means and cannot include communication via the Internet at present. How come a website that intercepts the broadcast signals of the authorized broadcaster and communicates to the public through the Internet is currently excluded? This is a practical challenge to recent Copyright Law of China, for the rebroadcasting right of the broadcast organizer cannot prevent transmission via the Internet. However, luckily, the legislator is undertaking to revise the Copyright Law to expand the scope of the rebroadcasting right of broadcast organizers to include wired real-time transmission. In addition, if such online broadcast piracy occurs, rights holders could seek protection from the Anti-Unfair Competition Law in spite of the incompetency of the Copyright Law under current circumstances. Second, what if the authorized broadcaster is a website, for the broadcast organizers in article 45 only include television station and radio station. And the webcasting of a sports event is already common nowadays. Chances are that rights holder has to resort to the Anti-Unfair Competition Law again.

On the other hand, once the fixation requirement has been met, then the motion images carried in the live broadcast of the sports event can only be regarded as video recordings based on the analysis in this case according to the Copyright Law of China. So here comes the question: From an Internet perspective, can the producer of video recordings receive sufficient protection from the Law? Article 42 stipulates the right of reproduction and the right of communication via information networks; thus, any wired or wireless pirated interactive transmission could be banned. And article 46 prevents a television station from broadcasting a video recording without the producer’s permission. Then how can a website directly offer non-interactive transmission of the video recording without the producer’s authorization? For a producer of video recording does not enjoy as many rights as stipulated in article 10 of the Copyright Law of China, such a problem, which could be settled by other rights of a copyright owner in item(17) thereof, cannot be properly solved for the producer of video recordings as the producer of video recordings do not have the right of broadcasting. That is to say, the current Copyright Law cannot effectively stop non-interactive transmission of video recordings via the Internet. However, we believe it could be addressed properly very soon.

VI. CONCLUSION 

Although the approach to eliminating online piracy of live broadcast of sports event programs remains a controversial issue, this article has offered a detailed study of a case in point from a pragmatic perspective. The court analyzes and clarifies why the disputed sports programs are only protectable as video recordings by rigidly interpreting the current specific provisions of the Copyright Law of China. In order to provide comprehensive and sufficient protection for rights holders against online piracy, the article also points out the dilemmas in current Copyright Law with regard to the rebroadcasting right for broadcast organizers and non-interactive webcasting for producer of video recordings, and looking forward to the optimization of relevant protection measures. 



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