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Does Sportscasting Qualify as a “Work” Under Chinese Copyright Law?

March 13, 2020 / Blog, Case Comment, Featured Author
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Case No.: (2015)京知民终字第1055号, Darts-ip Ref.: darts-900-712-E-zh

On March 30, 2018, the Beijing Intellectual Property Court made a final judgement on the copyright infringement dispute between CCTV International Network Co., Ltd. (hereinafter referred as “CCTV”) and Baofeng Group Co., Ltd. (hereinafter referred as “Baofeng”). The court found Baofeng infringed CCTV’s copyright and ruled in favor of a damage compensation -4 million RMB.

Summary of the Case

The plaintiff CCTV claimed that it had acquired the exclusive right of broadcasting the “2014 Brazilian World Cup” in the Chinese Mainland area. According to CCTV, Baofeng provided short online video broadcasting services for the sports event to the public through its official website and it’s player “Storm Codec 5” without authorization. The contents of short videos involved came from the TV programs broadcasted by CCTV. The short videos involved qualified as works and were created by a process which was analogous to cinematography under the copyright law of the people’s republic of China. Hence, Baofeng infringed CCTV’s copyright.

According to the court of first instance, the TV programs of “2014 Brazil World Cup” made and broadcasted by CCTV should be protected as video recordings but not works under the copyright law. The short videos involved excerpted from these programs and should also be deemed as video recordings. Therefore, the court held that Baofeng infringed CCTV’s right of disseminating exclusive information online relating to the TV programs which were regarded as video recordings and judged Baofeng to compensate CCTV 672,400 RMB(EUR €88,465).

CCTV appealed to a higher court on the ground of: 1) the programs involved qualify as works and are created by a process which is analogous to cinematography due to their great originality, 2) the amount of compensation is not enough to make up for its financial losses.

During the appeal process, the following two criteria were referred by the appellant court (Beijing Intellectual Property Court) regarding whether the TV programs involved qualify as works:

1.The “fixed” Requirement

Baofeng provided online video-on-demand after the live broadcast of the sports event involved. Hence the TV programs had been stably fixed on the material carrier.

2.The originality requirement

Three factors were considered:

(a) Subject selection: the subjects of the TV programs were absolutely relevant to the World Cup, so the producer mainly had no choice about them.

(b) Video shooting: the objective factors -such as the unified standard of producing sports event signals, the satisfaction to the audiences’ requirements, the shooting methods and techniques commonly used by photographers who need to meet the requirements of live broadcasting, etc. -would extremely limit the individualized choices during the video shooting.

(c) Selection and arrangement of the video pictures: during the live broadcast process, the photographers transmits the their pictures to the live director who collects pictures from each camera and then picks up what he/she needs and broadcasts them live. However, actually the live director also doesn’t have much individualized space on the selections and arrangements of pictures, because live broadcast must reflect the real situation on the spot of the sports event.

Besides, CCTV claimed that the contents which should be considered as works created by a process analogous to cinematography also included Chinese subtitles and commentary besides the continuous scenes carried by the World Cup signals involved. However, the court held that the continuous scenes could not be considered as cinematographic works, so the TV programs could not  qualify as cinematographic works merely depending on the Chinese subtitles and commentary .

The appellate court finally partially upheld the lower court’s points of view of which the TV programs involved did not qualify as works, but overturned the amount of compensation. Actually, instead of ruling an obviously low compensation as the court of first instance did, the appellate court fully supported CCTV’s requirement of compensation which was 4 million RMB(EUR €525,686) .

Comments

Cinematographic works or works created by a process analogous to cinematography with great originality are comprehensive arts which are produced by directors  who select actors, lighting engineers, sound designers, cameramen, and propmen, etc. and guide them to cooperate meticulously and closely according to scriptwriters’ drama. While video recordings are productions of recording continuous figures or images with or without accompanying sounds except films, televisions or video works. Nearly no creative work is needed during the process of recording, so the video recordings  cannot meet the standard of originality and cannnot be regarded as works.

When distinguishing a cinematographic work from a video recording, we need to consider the requirement of “fixity” and originality. The judgement of originality is more subjective than “fixity”, so different people may get different conclusions.

There’re also some points of view believing that the descriptions of sport events are not just objective and unthinking records, instead, they are story descriptions which are different from the events themselves and therefore should qualify as works.

In this case, the Beijing Intellectual Property Court deduced the difference between a cinematographic work and a video recording from the difference between copyright and adjacent right on the basis of the originality standard. Actually, this standard plays an important role in the determination on whether a sportscast qualifies a work. Similarly, the standard can also be applied in the determination on other types of videos, such as MV, short videos on social medias.

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Author : He Yuanyuan

She has been worked as an in-house patent engineer in several large listed companies, and now working in Darts-ip, responsible for client support and blog in China. She has a good understanding of Chinese patent law and practical experience on patent procecution.She will share more Chinese facts on Darts-ip’s blog.

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