Inspiration from the Protection of Copyright to Live Sporting Event Video on Network
By Li Junhui, Honorary Research Fellow at Intellectual Property Research,[Comprehensive Reports]
On June 30, 2015, Beijing Chao yang District People’s Court rendered a judgment on the case of Beijing Sina Internet Information Service Co. Ltd. (Sina) v. Beijing Tianying Jiuzhou Network Technology Co., Ltd. (www.ifeng.com) for copyright infringement upon Chinese Super League and unfair competition, and ruled that the defendant was the losing party.
Beijing Chaoyang District People’s Court affirmed that, according to Article 13 of Tort Liability Law of the People’s Republic of China, and Paragraph 17 of Article 10, Paragraph 11 of Article 47, and Article 49 of China’s Copyright Law, Article 2 of Regulations for the Implementation of China’s Copyr ight Law, and Article 4 of Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks,that www.ifeng.com, the defendantinfringed upon Sina, the plaintiff’s right of rebroadcasting of the concerned sporting event, by way of technical means such as link and division of labor & cooperation with others, and ruled that the defendant should bear tort liability to stop infringement, make an apology and compensate for the losses.
Is “RMB 500,000” Enough or Not?
Although it looks small, it reached the highest limit for compensation provided by Copyright Law where there is no way to ascertain the specific loss. Chaoyang District People’s Court affirmed that, www.ifeng.com infringed upon Sina’s copyright to the image work of the sporting event by way of cooperation with www.letv.
com, and ruled that www.ifeng.com should stop its broadcasting of the concerned video, make public apology and compensate RMB 500,000 to Sina as economic loss.
It can not be denied that the amount of RMB 500, 000 a s compensation is far from RMB 10,000,000, the plaintiff’s claim in its statement of complaint.
However, the more important for the case is that it ascertained, for the first time in China, that there is a full and complete copyright to live sporting event video on network, and that unauthorized practice of piracy broadcasting or rebroadcasting infringed upon the copyright to sports event video instead of the right of dissemination via information network to such video.
Meanwhile, a round of discussion has been hot for the ascertainment and dealing method of the case.
There have been three focuses up to present: Can live sporting event video on network constitute work under Copyright Law? Is there a full and complete copyright to such video? What kind of copyright & interest is infringed through unauthorized practice of piracy broadcasting or rebroadcasting?
Can Live Sporting Event Video on Network Constitute Work under China’s Copyright Law?
It is well-known that the content in dispute must constitute a work in the sense of copyright law before seeking for protection by copyright law. According to the provisions of China’s Copyright Law, “work(s)” mentioned in this Law include work(s) of literature, art, natural science, social science, engineering technology, etc., existing in any of the form of written or oral works.
In the meantime, both China’s Copyright Law and its Regulation provide in its first article that it aims to “protect author’s copyright” and to “encourage the creation and dissemination of works.” Obviously, the key for whether a work can constitute a work in the sense of copyright law and be protected is whether the relevant content is the result of “creation” and falls within literature, art, science, and technology and other specific fields.
It can be found from the past result of litigations in China that there have been dim or even negative answers to whether a sporting event video can constitute a work and whether there exist full and complete copyrights to such video.
For example, the court ruled in the appellate case of Beijing WOAILIAO Network Technology Co., Ltd. v. CCTV International Networks Co. that the concerned sporting event program rebroadcasted by CCTV-5 and other channels of CCTV International was not intended to show the literature, artistic and scientific sense of beauty of the event, and it, therefore, constituted no work in the sense of copyright law.
Obviously, the court held in this case that the key for whether a video constituted a work under copyright law depended on whether there was an intention to show the sense of beauty in a specific field, and the specific video constituted no work in the sense of copyright law if the answer was no. The implication of the case is that the court did not affirm that sporting event video was the result of creation.
In addition, the court ruled in the case of CCTV International Networks Co., Ltd. v. Beijing Storm Technology Co., Ltd. for infringement upon producer’s right of fixation that "the television program involved in the case was continuous images with accompanying sounds which were shot by filmmakers on the spot and contents, including commentary, subtitles, replay or close-up, soundtrack, etc.”were added by technical means and then shown on TV and other terminal equipments through signal dissemination and they can be reproduced and fixed on a carrier; that the shooter was not the dominant in the process of shooting and had very limited room for his choice and expression according to his will in respect of the game process controlling, shooting content selection, commentary content rearrangement, camera location decision, camera lens selection, editing and producing participation, etc.; and that, the alleged originality in the “2014 Brazi l Wor ld Cup” game TV program shot by FIFA and produced & broadcasted by CCTV can not satisfy the requirement provided by China’s Copyright Law in respect of works created by means similar to cinematography.
Simply speaking, the court held in the case that although special creation of the shooter, including commentary, subtitles, closeup and soundtrack, was added to the spor t ing event video, there were very limited “choice and expression according to his will” for creation; and that it can not satisfy the requirement for works created by means similar to cinematography under China’s Copyright Law.
It is obviously from the foresaid cases that the court refuses to affirm that sporting event video constitutes work in the sense of copyright law and it is difficult for such video to obtain direct protection under China’s Copyright Law.
According to the logic of the foresaid two judgments, it seems that the video shot by mobile phone users for the recording of incidents should not be deemed as “work” because it is just a real-time recording instead of “creation” as sporting event video.
Obviously, the logic is beyond the general perception of the publ i c . The reason f o r such judgment s i s t h a t t h e court trapped in the creation process of “cinematographic works” or the purpose cognitive confusion.
In accordance with China’s Copyright Law , video shall be protected by law under the condition that it is “c inematographic works and works created by means similar to cinematography” “in the literary, artistic, and scientific domains.” In fact , a l l the works are a reflection of real life, reproduction or virtual transformation. As far as cinematographic work is concerned, there is an important standard for the director or the audience to judge the quality of cinematographic work. That is to say, good cinematographic work should be a real recording or reproduction of the real world instead of simple fabrication.
Now, let’s come back to sporting event video. For the off-site audiences, they can have on-thescene feelings by watching the video. And the commentary on and editing of the game can help the audiences to watch or feel some contents that can not be seen or felt on the spot. Meanwhile, the game itself is full of “theatricality” because of the unpredictable game process or results, which adds more ornamental values to the game than ordinary work.
It is well-known that no result of any work under copyright law can be judged by anyone before it is completed in composition or reading. It can be said at this panel that sporting event video is in fact a work co-created by game organizer’s organization, players ’ participation and shooters’ real-time editing and rearrangement.
Ordinary videos for the same event can be different from each other because of different shooter and their different reflections. The so-called “unique” is in itself a kind of creation.
Just as we can not deny every composition under thesis composition is still an independent “work”, any video, regardless of its being sporting event video or other video has its creation completed after recording or shooting in the form of video or sound.
What Kind of Right Is Infringed by the Piracy of Live Sporting Event Video on Network?
The Chaoyang Court ruled in the case of Sina v. www.ifeng.com that “it is no doubt that the selection and rearrangement of sporting event scenes in order to form images to be watched and appreciated is a kind of creative labor, and such creativity comes from different selections and productions and results in different image effects, which are just a reflection of originality. That is to say, the images for the recording of sporting event satisfy the requirement under China’s Copyright Law and shall be affirmed as work.” Briefly speaking, live sporting event video constitutes work through the means of shooting and production to form images and be presented to audiences in audiovisual form with visual sense and effect.
So, if live sporting event video is work under copyright law, what kind of Sina’s right and interest have been infringed by other live sporting event video such as www.ifeng.com’s unauthorized rebroadcast or piracy broadcast? According to the provisions of China’s Copyright Law, copyright shall include the 17 types of personal rights and property rights, including “right of publication, right of authorship, right of alteration, right of integrity, right of reproduction, right of distr ibut ion, r ight of rental, r ight of exhibit ion, r ight of performance, right of projection, right of broadcasting, right of dissemination via information network, right of cinematography, r ight of adapta t ion, r ight of translation, right of compilation, other rights to which a copyright owner shall be entitled.”.
According to the above types of rights, www.ifeng.com may, through its unauthorized rebroadcast of the live sporting event video that Sina is entitled to copyright, infringe upon right of broadcasting, right of broadcasting organization, right of dissemination via information network, and other rights to which a copyright owner shall be entitled.
Firstly , Sina’ s right of broadcasting was infringed. Right of broadcasting is the right to publicly broadcast or disseminate a work through wireless transmission, to disseminate a broadcast work to the public through wire transmission or rebroadcast, and to disseminate a broadcast work to the public through a loudspeaker or any other similar instrument used to transmit symbols, sounds, or images.
Generally speaking, the process for the rebroadcast of sporting game is as follows: live broadcaster sends personnel to the spot for live broadcasting, shooting is made by several cameras at different positions on the game site, great shots are selected for replay at normal speed or in slow motion at intervals, commentator makes his description and comment on the spot for the game process a t the same t ime, v ideo and audio are separately formulated for the mixture by off-ground c ommun i c a t ion s , and the n transferred to TV signal through satellite so that it can be received by audiences.
However, accor d ing to the explanation made by China’s NPC Law Committee in its report on the amendment of China’s Copyright Law, the act of rebroadcasting via the Internet is not included in the regulatory scope of the right of broadcasting.
Secondly , the right of broadcasting organization enjoyed by Sina might be infringed. Right of broadcasting organization is the organization’s exclusive right to the signal broadcasted by it, and it is a kind of neighboring right instead of copyright. The program signal is the object of right of broadcasting organization. Therefore, the broadcasting organization enjoys exclusive right to the broadcasting signal, regardless of whether the intellectual achievement reflected by the rebroadcasting signal is created by itself or not, and any rebroadcasting of such signal without authorization shall constitute infringement.
In this case, Sina have to prove that its subject identity constitutes “broadcasting organization” (radio, satellite broadcasting organization or cable broadcasting organizations) for its assertion of such right.
Thirdly , Sina ’ s right of dissemination via information network might be inf ringed, which is the right to make a work available to the public by wire or wireless means, through which the public may access the work at times and places of their respective choices. In other words, the right is designed for the regulation of “interactive communication behavior”. For example, where a recorded game program is uploaded to the network, the user can receive the rebroadcasting at his selected time instead of the time when the game is taking place, and therefore, such uploading constitutes infringement upon the right of dissemination via information network enjoyed by the author (he may be the rebroadcaster) of the game program.
Four thly, there may be an infringement upon other’s rights to which Sina shall be entitled.
The court ruled in the case that www.letv.com and www.ifeng.com infringed upon Sina’s copyright by way of cooperative rebroadcast.
The rebroadcast involved in the case does not fall within the scope of right of dissemination via information network under China’s Copyright Law because it cannot be received by users in interactive way at times and places of their respective choices, although it is conducted on the information network. Therefore, such act should still be protected by China’s Copyright Law as “other rights to which a copyright owner shall be entitled.”
In brief, the Chaoyang Court granted protection to Sina’s rights and interest to live sporting event video in the case of Sina v. www.
ifeng.com, by exploitation of its discretion power.
Nonetheless, www.ifeng.com’s piracy broadcasting of the video to which Sina has exclusive live broadcasting right is closer or similar to the right of broadcasting among of the four kinds of copyrights mentioned above.
The right to broadcasting of sporting event has been the major source of revenue for the majority of sport organizers in practice. Take the Olympic Games for example.
The income from rebroadcasting fee has accounted for more than 50% of its total revenue of all games. When it comes to the dominant video websites such as www.letv.com and www.v.qq.com, they have paid more than one hundred million yuan to rebroadcast commercial sporting event every year.
However, due to the lag in legislation and judicial interpretation, a highly controversial topic has arisen in Chin about whether such video for sporting event constitutes work under Copyright Law and what kind of right is infringed by the piracy of such video.
In consider of the common l ive broadcasting of sporting event video, TV program, etc., and the increasing widespread of network video, there should be an amendment to China’s current Copyright Law, including: 1) There should be an introduction of “audiovisual works” to the form of work. “Cinematographic works and works created by means similar to cinematography” provided by Paragraph 6, Article 3 of Copyright Law should be changed to “audiovisual works, including cinematographic works and works created by means similar to cinematography.” 2) There should be an affirmation tha t live broadcasting or rebroadcasting on network is the “broadcasting” under Copyright Law so that the act of live broadcasting or rebroadcasting through the Internet or mobile Internet and other network can fall within the scope of the right of broadcasting by law.
(Translated by Yuan Renhui)
京公网安备 11010802020770号