Reconsider the Sina Sports Event Live Stream Case from the Perspective of the Revised Copyright Law

By Wang Liyan,[Copyright]

 
Abstract: The application of the current "Copyright Law" cases illuminates hope for the protection of the copyright law of the emerging format of the sports event industry. More new issues will continue to flood into the new "Copyright Law" vision in the near future.
 
For a period of time, the issue of copyright identification of sports event programs has become an important topic of concern in the event industry and the field of copyright law. The author participated in the retrial proceedings for the copyright, and unfair competition disputes of the Sina Chinese Super League live broadcast program (hereinafter referred to as the "Sina Live Tournament Case"). The case was judged on September 23, 2020. The judgment and argumentation involved many works and movies. In addition to the meaning of individual cases, the basic issues of the identification of works, the angle of argumentation, and the point of view are more similar issues in the interpretation and application of the current "Copyright Law".
 
Soon after the judgment, on November 11, 2020, the President of the People's Republic of China (No. 62) issued the "Decision of the Standing Committee of the National People's Congress on Amending the Copyright Law of the People's Republic of China (2020)". The new "Copyright Law" (that is, the "Copyright Law" modified in accordance with the decision, the same below) will come into effect on June 1, 2021. There are many overlaps between the adjustments and changes made in the new law and the legal issues involved in the Sina event live broadcast case. This special opportunity is reminiscent of some of the issues involved in the case under the new law environment. This article takes this Wang Liyan Beijing TA Law Firm Lawyer perspective as the starting point to discuss and analyze some of the legal issues involved in the case.
 
The new "Copyright Law" supports the logic of firstly identifying works for live broadcasts of Sina events, and then determining the classification of the works
 
The current "Copyright Law" and "Implementation Regulations"[1] use the method of "definition + enumeration" to indicate the works and types of works protected by the copyright law, and set miscellaneous provisions in the work types, namely, "other works specified by laws and administrative regulations". The miscellaneous provisions is conditional on “provided by laws and administrative regulations”. In a case, if the object to be certified neither belongs to the type of work listed, nor is otherwise specified by laws and administrative regulations, it is possible to draw the conclusion that the object to be proved does not belong to any type of works protected by copyright law; under the circumstance that the statutory work type is already fixed, the object to be verified that cannot be categorized may not be recognized as a work protected by the Copyright Law. This argumentation logic actually skips the judging link of demonstrating whether the object to be proved belongs to the work, and directly enters the logic of typological analysis of the object to be proved.
 
In the case of the "Copyright Law" comprehensively enumerating the types of works, using the above-mentioned types to confirm the judgment of the work may not interfere with the correctness of the judgment conclusion, but the originally listed types may not be enough to cover all the expressions of the work when new works emerge, or the emergence of some atypical types of objects to be certified may cause some objects to be certified that have the opportunity to be evaluated as works to be unable to be protected by copyright law. This is also a problem encountered in the Sina event live broadcast case.
 
Under the framework of the current "Copyright Law", the problem of evaluating works of emerging objects is not unsolvable. Tao Kaiyuan, the Vice President of the Supreme People's Court, pointed out in his speech at the Fourth National Court Intellectual Property Trial Work Conference and Intellectual Property Trial Work Advanced Collectives and Individuals Commendation Conference on July 9, 2018: "In order to protect the development of new industries, proper use of the miscellaneous provisions of copyright rights and the discretion standard of originality should be made. For the object or the way of use of the object that is really necessary to protect and conducive to the development of industries, protection can be given according to the most similar type of works or the use of miscellaneous rights." The instruction indicates the open attitude and applicable direction of the Copyright Law to emerging objects. The way to implement this instruction can be: adopt the logic of first evaluating whether the object belongs to the work and then evaluating the type of work; break through the limitations of the inherent concepts on the cognition of the types of works, to re-understand the scope of typed works from their own attributes and forms. In the Sina event live broadcast case, the argument for whether the object to be proved belongs to a work or whether it belongs to a film-like work is ultimately based on this process.
 
The revision process of the new "Copyright Law" obviously paid attention to this problem. Article 3 of the new law includes both the definition of the work and the type of work[2]. Although on the surface it does not deviate from the logic of "definition + enumeration", the details in between can lead the work judgment logic to "first determine whether the object belongs to the work, and then the change in "determining the type of object work" is mainly reflected in the setting of the definition of the work and the miscellaneous provisions.
 
Item (9) of the types of works listed in the new "Copyright Law" is still a miscellaneous provision, but the expression was changed to "other intellectual achievements that meet the characteristics of the work". This first shows that the miscellaneous provision is free from "laws, administrative regulations and laws" in the type of work. The setting of “prescribed” conditions frees up a wider range of work types. On this basis, considering that the conditions of setting miscellaneous provisions become “conforming to the characteristics of the work”, in order to accurately apply the miscellaneous provisions, whether the object to be evaluated conforms to the characteristics of the works has become a problem that must be considered in the process of judging the works. This shows that under the environment of the new "Copyright Law", when the object to be certified may not be included in the type of work specified by the law, it will still have the opportunity to be evaluated as a work first and thus obtain protection under the Copyright Law. The new "Copyright Law" supports the decision logic of the Sina Event live broadcast case: "First, determine the works of the Sina Event live broadcast, and then classify the works."
 
The new "Copyright Law" makes it easier to recognize Sina event live broadcasts as audiovisual works
 
The direct provisions of the current "Copyright Law" on film works are mainly reflected in Article 3 of the "Copyright Law" and Article 4 of the "Implementation Regulations" [3]. The compositional requirements shall not only meet the general requirements of the work, but also meet the special requirements of the film-like works, mainly including: originality, within the scope of literature, art and science, have a certain form of expression, and can be reproduced in some physical form, filming on a certain medium, consisting of a series of pictures with or without sound, and showing them with appropriate devices or disseminating them in other ways.
 
In the Sina Event live broadcast case, the controversy about evaluating whether the object to be certified meets the requirements of a film-like work focused on "ingenuity" and "filming on a certain medium." The argument for the element of "ingenuity" points to "whether film works should have higher originality". The source of the problem is that the current "Copyright Law" also stipulates the logical inferences of film works and video products. The argument on the essentials of "filming on a certain medium" mainly points to "whether it needs to be stably fixed on a tangible carrier". The arguments and conclusions on these two parts have been included in the judgment of the case so that I won’t repeat them here. It is worth noting whether these previously controversial topics may be more direct conclusions under the new law environment.
 
In the new "Copyright Law" regulations on the types of works, no film-type works appeared and replaced by "audiovisual works"[4]. This change gives us an intuitive feeling that emphasizes the audiovisual expression of the works rather than the creative technique. However, the new "Copyright Law" does not deny film works but lists them as part of audiovisual works, which is reflected in the other provisions of the new law [5]. The scope of audiovisual works is larger than that of film-based works. This setting leaves room for emerging products that are inconvenient to be included in filmbased works but conform to the form of audiovisual expression. In the case that the new law does not set special requirements for audiovisual works, judging whether the object to be demonstrated with audiovisual expressions is an audiovisual work also needs to conform to the general definition of the work.
 
Regarding the issue of "tangible or intangible carrier" previously debated, the new "Copyright Law" also clarifies the technical tolerance of carriers and media to a certain extent, such as the adjustment of the "copy right" of works in the new law [6]. If copying the content of work on a digital carrier can constitute a copying behavior in the sense of the Copyright Law, it means that the digital carrier can be recognized as the carrier and medium of the work. In addition, the new law proposes that the definition of a work "can be expressed in a certain form", emphasizing that the work should be separated from the externalized characteristics of the realization of expression, and the expression is reproducible, which to a certain extent also avoids some cases because of consideration "reproducibility" puts forward higher requirements on the carrier and medium form of the object of the certificate.
 
The author once saw this passage: "The expressions of 'movie works' and 'works expressed in a similar way to filming' should be very broad enough to include 'audiovisual' works. This term is generally used today to cover' by a series of related pictures' constitute, movies and similar works watched with the aid of machines or equipment. If in the past, because of the protected 'method' elements, it was questioned whether audiovisual works that need to be produced in different fixed forms could be protected. Now, in view of the many different media and methods used in filmmaking, the difference between a work expressed in a similar way to filmmaking and a general audiovisual work does not seem to have any great significance anymore. "[7] 
 
During the evolution of the Berne Convention, there was a transition from method to expression in the evaluation elements of film-type works. However, with the development of technology and changes in the style of works, to a great extent, the consideration of methods has been unable to meet the actual situation of film works. For example, animation movies belong to movies. This seems to be an indisputable fact in real life. However, the production of animation movies mostly relies on operations such as graphic design and special effects. If "shooting" is overemphasized, will animation movies still belong to the movie category? We can accept that animation movies are film-type works, which means that we can look at the works in development from the perspective of the development of works.
 
The new "Copyright Law" matches the needs of the development of emerging business formats, directly or indirectly clarifying some of the controversial issues in the practice of the current "Copyright Law". Under the new "Copyright Law" environment, it will be more convenient for live Sina events to be recognized as audiovisual works.
 
Under the new "Copyright Law" environment, the live broadcast rights of Internet events have the opportunity to be included in the category of broadcasting rights
 
The live broadcast of sports events on the network platform is different from the wireless transmission method in terms of content dissemination methods; in terms of the degree of broadcast time selection, it cannot meet the optional requirements of information network dissemination rights. Then, in the case of determining that the live broadcast of a sports event is a work, how the web live broadcast platform should define the rights it enjoys has also become a basic problem that needs to be resolved in the individual case. In addition, although "other rights enjoyed by copyright owners" are right’s miscellaneous provisions clearly stipulated in the "Copyright Law", they must go through a clear process of argumentation. The Sina event live broadcast case invoked this right, and the court of retrial also conducted a series of arguments for the invocation of the miscellaneous rights, and put forward factors that need to be considered when invoking miscellaneous provisions.
 
The new "Copyright Law" expands the broadcasting rights from the original "wireless means" to "wired or wireless means"[9], indicating that similar live broadcast rights of Internet media can be included in the category of broadcasting rights; additionally, the expression of Article 10 of the new law "excluding the right as prescribed in item (12) of this paragraph" indicates that the direct difference between the right of broadcasting and the right of dissemination via information networks is mainly whether the public can "obtain the work at the selected time and place."
 
The new "Copyright Law" clarifies that wirebased transmissions can enter the adjustment scope of broadcasting rights. Compared with miscellaneous rights, the specified types of rights have more direct applicability and legal publicity effects. Under the new "Copyright Law" environment, the live broadcast rights of Internet platforms will have the opportunity to be included in the category of broadcasting rights.
 
Broadcasting Organization Right under the New "Copyright Law"
 
The case of the Sina event live broadcast lasted seven years from the first trial to the retrial. In addition to issues directly related to the disputed points in the case, the hot debates and discussions surrounding the case also involved some surrounding topics. The issue of broadcasting organization rights is one of them. After the new "Copyright Law" adjusted the provisions of the broadcasting organization rights, many people in the industry have also raised concerns: in future rights protection activities, whether the broadcasting organization rights will cause the content right party to defend the right of the right to be questioned?
 
The author believes that the right basis for broadcasting organization rights should originate from the broadcasting organizations’ contributions to the dissemination of content, rather than from the right to the specific content to be transmitted, which is consistent with the basic attributes of the neighboring rights of broadcasting organization rights. Broadcasting organizations use signals, technology, equipment and other comprehensive inputs to realize content dissemination. Signals are the direct carrier in the content transmission process. If the content contained has the status of an independent work, the copyright of the work should belong to the copyright owner, and the fundamental rights of broadcasting organizations should be dominated by the part within the scope of their neighboring rights. In this way, the boundary between the right of broadcasting organization and other copyrights, including the right of information network communication, should be relatively clear. If certain infringements involve both the copyright infringement of the work and the infringement of the rights of broadcasting organizations, both copyright and broadcasting organization rights may become the basis for accountability. The accountability behaviors of the two should neither interfere with each other nor constitute repeated accountability. The provisions of Article 47 of the new "Copyright Law" that "A radio station or television station exercising the rights provided in the preceding paragraph shall not affect, restrict or infringe others' exercise of copyright or copyright-related rights" shall also be based on this consideration.
 
Copyright is different from natural human rights. It came into being under the background that intellectual achievements have gradually become an important driving force for social development. It is intended to recognize intellectual achievements while promoting the prosperity and development of intellectual creation. The background of written law is interlaced with the pace of economic and technological development, which requires us to fully and effectively interpret and apply the legal norms in combination with legal theory and legal logic when facing new findings and new problems in case evaluation, and then promote the renewal and development of legislation at the appropriate moment.
 
More than two months have passed since the retrial decision of the Sina event live broadcast case. The trial process of this case has caused widespread concern in the event industry. Not only is the result of the case will affect the overall transaction model and product positioning of the industry, but observers will also be more interested in seeing how copyright law responds to emerging output. Looking back at this case in the special period when the new "Copyright Law" and the current "Copyright Law" intersect, a close reference to reality will make our experience of legal change more concrete and direct. The application of the current Copyright Law illuminates the hope for the protection of the copyright law of the emerging business forms of the competition industry, and more new problems will continue to flood into the vision of the new Copyright Law in the near future.
 
 
 
 
 
[1] Copyright Law of the People’s Republic of China Article 3 “Works” mentioned in this Law shall include works of literature, art, natural science, social science, engineering technology and the like made in the following forms: ...(9) other works as provided in laws and administrative regulations. Regulation for the Implementation of the Copyright Law of the People's Republic of China Article 2 The term "works" as referred to in the Copyright Law means intellectual creations with originality in the literary, artistic or scientific domain, insofar as they can be reproduced in a tangible form.
 
[2] Copyright Law of the People's Republic of China (2020 Amendment) Article 3 “Works” mentioned in this Law shall refer to ingenious intellectual achievements in the fields of literature, art and science that can be presented in a certain form: ...(9) other intellectual achievements that meet the characteristics of works.
 
[3] Copyright Law of the People’s Republic of China Article 3 “Works” mentioned in this Law shall include works of literature, art, natural science, social science, engineering technology and the like made in the following forms: ...(6) cinematographic works and works created in a way similar to cinematography
 
[4] Copyright Law of the People's Republic of China (2020 Amendment) Article 3 “Works” mentioned in this Law shall refer to ingenious intellectual achievements in the fields of literature, art and science that can be presented in a certain form: ... (6) audiovisual works...
 
[5] Copyright Law of the People's Republic of China (2020 Amendment) Article 17The copyright of cinematographic works and TV play works in audiovisual works shall be enjoyed by producers,
 
[6] Copyright Law of the People's Republic of China (2020 Amendment) Article 10 “Copyright” shall include the following personal rights and property rights: ...(5) the right of reproduction, that is, the right to produce one or more copies of the work by means of printing, Xeroxing, rubbing, sound recording, video recording, duplicating, re-shooting, or digital way etc.;
 
[7] [Australia] Sam Rickison, [US] Jane Ginsberg: "International Copyright and Neighboring Rights: The Berne Convention and Beyond", Translated by Guo Shoukang, Liu Bolin, Wan Yong, Gao Linghan, Yu Jun, Renmin University of China Press (Second Edition), p.376.
 
[8] Beijing Higher People’s Court (2020) Jing Min Zai No. 128 Civil Judgment: “In applying the “other rights enjoyed by copyright owners” stipulated in Article 10, Paragraph 1, Item 17 of the Copyright Law to regulate the alleged infringement, the following factors should generally be considered: whether the alleged infringement can be included in the scope of protection of Article 10, Article 10 of the Copyright Law paragraphs 1 to 16; if the alleged infringement is not stopped, will it affect the normal exercise of existing rights in the Copyright Law; if the alleged infringement is stopped, will it lead to creators, a major imbalance of interests between the communicator and the public. ……Applying this right to regulate the accused's live broadcast behavior, the network real-time rebroadcasting behavior for wireless broadcast works and the network real-time rebroadcasting behavior for network live broadcast works can be qualitatively the same, and there is no need for the "broadcasting right" in the copyright law. 'Breakthrough in the scope of adjustment is also convenient for judicial practice and unified identification standards."
 
[9] Copyright Law of the People's Republic of China (2020 Amendment) Article 10 “Copyright” shall include the following personal rights and property rights: ...(11) the right of broadcasting, that is, the right to publicly broadcast or disseminate works by wired or wireless means, and to disseminate broadcast works to the public by audio amplifier or other similar instruments for transmission of signs, sounds or images, excluding the right as prescribed in item (12) of this paragraph;

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