The problem of legal protection for sporting events programs in China

2012/05/17,By Kevin Nie, China IP,[Copyright]

In modern society, sporting events have long exceeded the conceptual category of simply being games, and have become commercial activities with large amounts of capital investments and huge sums of financial return. In recent years, more and more websites that provide audio-visual programs have been broadcasting unauthorized real-time TV programs made by domestic and foreign broadcasters, and sporting events programs have taken up a large percentage among these real-time programs due to the timeliness of the results of the games. However, since the relevant stipulations in the current laws of China, especially the Copyright Law, are ambiguous and ill-defined, the application of the law has encountered many practical problems.


Whether Sporting Events Programs Are “Works”?

In an era of the information economy, the huge profits of the sports industry are, to a large extent, based on intellectual property, especially the copyright. However, different countries have different ways of IP protection for sporting events. In China, there are more controversies than other countries, and the practice of IP protection is restricted by the concepts in the traditional system and the actual laws of China. At present, the problems and perplexities in the protection for sporting events programs within the frame of the Copyright Law of China have aroused a wide concern among the theory, judicial and industrial circles.

The common viewpoint generally believes that the contents of the sporting events programs are the objective facts, and reports on the objective information are excluded from the range of protection of the Copyright Law. Therefore, some experts have pointed out that whether sporting events programs should be protected by the Copyright Law is based on whether they are “works” or not. If they are, what category of “works” do they belong to?

Doctor Suo Futao from Renmin University of China provided a legal analysis and stated: “‘Work’ should be judged according to its definition. First, the Copyright Law of China explicitly stipulates that a piece of ‘work’ must be in the field of literature, art and science. Whether a sporting event belongs to this category or not is controversial. Second, a piece of ‘work’ has some originality in it. Sporting events are actually a kind of activity that follows certain fixed rules, so their originality is not so obvious as the existing ‘works.’ Third, the key to judging a piece of ‘work’ is that it must be reproducible. Sporting events are a kind of game and most of the time their results do not have any cognitive meaning. A sporting event cannot repeat itself and the process of the game is irreproducible. This is the most powerful viewpoint against the definition of sporting events as ‘works.’”

Doctor Hou Yangkun, Deputy Director of the Intellectual Property Law Research Center of the School of Law of Beijing Institute of Technology, offered a competing legal analysis on “Whether sporting events are ‘works’ and whether they can enjoy copyright protection. I personally think that not all the sporting events are the same because there are many kinds of sports games. We can regard a dance or an acrobatic performance as a ‘work.’ I think we can similarly regard a sporting event as a ‘work’ because there’s also technique and art in it. No matter the level of sporting technique is high or low in a sporting event, the event itself is a ‘work.’ They should enjoy the copyright according to the stipulations in the current laws of China. A sporting event program is actually a kind of derivative work after the process of rebroadcasting. According to the current Copyright Law, it is a piece of collective work, in which commentaries and subtitles, or even playbacks and close-ups, are added into the sport activities. The combination of these elements together has become a sporting event program, which is a ‘work’ enjoying the copyright.”

“As to who should enjoy the copyright, it should belong to those who created the ‘work.’ According to the stipulations in the current Copyright Law of China, this is judged by following the ‘work’ on the position. If a club organizes a sporting event, the players in the game are like the working staff in the practical ‘work.’ The live broadcast and rebroadcast of the ‘work’ is the application of the ‘work.’ In order to protect their program, the producers of a sporting event program show up as the copyright holders. If other people replicate or rebroadcast the program, the copyright holders of the sporting event program can enforce their right to stop them, which makes sense according to the current legal stipulations,” Hou further explains.

Associate Professor Li Chen from the Law School of Renmin University of China disagrees with the viewpoint that sporting events are ‘works.’ She thinks that sports activities are not art activities because art is different from normal conduct. It actually builds an independent world of symbols that transcends the reality with a symbol medium. Though some fans of sports games may say that a goal has some aesthetic feeling, it is only a kind of feeling and can’t make the sports game a piece of ‘work.’ The game and the program are different in nature. A sporting event program is not simply a report upon a sporting event. It also includes choosing some synthetic materials and considering the effect of the broadcast such as the choice of scenes. These, generally speaking, are original.

The industry sources are pressing home that sporting events programs are original ‘works.’ Yan Bo, Director of Office of Editor-in-Chief of CCTV, thinks that there is a lot of original work in the working process of creating sporting events programs. The arrangement and organization of every scene is different. The organization of scenes reveals the intention of such expression. The simple combination of scene A and B results in a new meaning of C. The joining of the language of the scenes realizes the purpose of creation, which is exactly what happens in reality. Though the program is timely, the expression in the order of ABCD or ACBD conveys totally different meanings on different levels. Are we trying to express the meaning on the right side or the left? The major intention of creation lies here.

Jiang Boning, Director of Broadcast Department of CCTV, also emphasizes that rebroadcasting of sporting events is a creative work. “Sports are made up of movements, but at the same time they also contain sentiments. The directors have completely different styles of covering sporting events programs, and the rebroadcasting effects of different directors are different as well due to their understandings of the sporting event, the arrangements of the plot and the details they place emphasis upon. Some directors are very good at conveying emotions. Take a ping-pong game as an example, in order to present the details, such as the shaking of the wrist in the delivery of service and the sweat on the ball, the cameramen are also doing creative works. In different scenes there are some impromptu plays and they also deal with the accidents in the process of the game differently. The subtitle is a kind of creative work, too. They are not added to the video in a casual way. There are also some arrangements and designs,” Jiang explains.

The analysis of Li Wei, a manager in the American National Basketball Association (NBA), is: “if we look at the organization of the sporting events, they should be considered as creative and original ‘works.’ The Copyright Law should protect the rebroadcasting of the sporting events, and the organizers of the events should be the owners of the copyright. First of all, we should distinguish between two pairs of concepts: between sporting events and the programs; between sporting events programs and common video products. The results of the sporting events are unpredictable and irreproducible. The sporting events are objective happenings without prior designs. If a sporting event is regarded as a ‘work’ protected by copyright, there will be too many participants in this ‘work’ including the live audience. It will be difficult to find the real creator for this copyrighted ‘work.’ Sporting events are different from videos because they are the combinations of the creative works of professional teams of creation. They are the intellectual works of different groups of people, which also includes the audio-visual creative elements. Videos are simply recordings of what happens during the games in an objective and mechanical way. There are many creative elements in the live broadcasts of sporting events, such as the actual processes of the games, playbacks and fragments of other games. Before an NBA game or during the half time interval, there are some interviews with subtitles, live commentaries and mid-field performances. Generally speaking, what sporting events programs are showing to the audience are not simply how the game is played and what the result is. They have added lots of information. Besides, the organizers of sporting events become the owners of the copyright through the stipulations in the agreements. Take the NBA as an example, there are such terms in the agreements, and we will write the details clearly during the process of authorization, including: how many games are allowed to be broadcasted; the games can only be allowed to be broadcasted on the platform of a TV station; other unauthorized rights are all reserved by NBA.”


Copyright or Neighboring Rights?

At present, the legal protection for sporting events programs is still a marginalized issue in China; however, it is no longer a problem to be solved in other countries of the world. Sporting events programs have been within the protection range of the American copyright law since the 1970s. Israel has also categorized sporting events programs as dramas which are protected by the law.

According to the stipulations in Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement), which China joined in 2001, broadcasting organizations should enjoy the right to prohibit the following unauthorized conducts: rebroadcast a program through wireless networks; fix a program; replicate a fixed program; broadcast a program to the public in the same way with a broadcasting organization.

Article 44 of the Copyright Law of China, which was revised in 2001, explicitly stipulates the rights of broadcasting organizations: broadcasting stations and TV stations have the right to prohibit the following unauthorized conducts: (1) rebroadcast a radio or TV program; (2) replicate a radio or TV program on audio-visual media and replicate the media. This differentiates clearly between the copyright and the neighboring rights of broadcasting organizations.

The most controversial issue in reality is the legal judgment and application of sporting events programs, especially the complicated relationship between the definitions of broadcasting right, rebroadcasting right and the right of dissemination through information networks, which have made people from all circles, even the professionals, very confused. What on earth is the legal nature of the broadcasting right of sporting events programs? People have different ideas on this issue: some stand for treating sporting events programs as “works”; others stand for protecting them according to the neighboring rights.

Professor Fei Anling, who teaches Civil Law and Commercial Law in China University of Political Science and Law, states that the broadcasting right of sporting events programs is irreplaceable. It is a different right from the copyright. The broadcasting right is a kind of technical transfer. It is the right to obtain the intrinsic economic interest brought about by the competitive and spectacular nature of sporting events programs. In fact, the broadcasting right is a right to obtain the economic interest. Of course, it is in no way a copyright. It has no relation with the copyright at all.

Other expand on this idea. “What is the basis for the protection of sporting events programs? Is it related to the protection for a certain kind of investment?” Li Chen raised these questions and expressed her opinions: “This is exactly the reason for the separation of the copyright and the neighboring rights. If there is a large investment in a sport event and it makes profits through the authorization of the broadcasting right, will it not be protected because there are fewer altered scenes? What on earth is it based upon? The system is universally applicable. It is not designed to solve one single problem. From this perspective, it is not enough to protect the organizers of sporting events through demonstrating that the sporting events are ‘works.’ If the issue is solved through the neighboring rights, the objects are not required to have originality. I disagree with the opinion that the rights of broadcasting organizations are related to identity. The neighboring rights are property rights, which can be transferred through agreements and have no relationship with identity.”

Xu Chao, Former Inspector of the Copyright Administration Department of the National Copyright Administration, emphasizes: “The rights of broadcasting organizations are not protecting the production of the programs, but the signals that are sent out, including both the signals before the emission and the ones after that. All the radio and TV programs have to be fixed first, and then they are broadcasted. They all have a short period of delay, even 0.1 second. The programs have already been stored in hard disks before they are broadcasted. If they are regarded as film products, is it necessary to formulate the neighboring rights, which seems to be a waste of the legal resources? Now that it is stipulated the broadcasting organizations have these rights, the legislators must have their considerations. Besides broadcasting the sporting events, many other programs such as the news are also broadcasted. All the broadcasted signals can enjoy the protection of the neighboring rights.”

“According to the current Copyright Law of China, the film products, video products and radio and TV signals all have loopholes, or there are places that are not protected. Can the problem be solved if sporting events are regarded as rebroadcasted products? This might not be the case.” Xu Chao explains, “We need to pay special attentions to a few legal aspects: First, the broadcasting right stipulated in Article 10 of the Copyright Law is limited to air broadcast. Wire broadcasting is excluded here; therefore cable television is a big loophole, not to mention the internet. Why was it stipulated like this? Because we were copying the relevant terms in the Berne Convention at that time, which stipulates that exclusive rights should be given to authors, including air broadcasting and cable or air rebroadcasting; however, there are actually no ‘cables’ when broadcasting. Second, video products do not have broadcasting rights, only reproduction right, distribution right, rental right and the right to be put on the internet. In this case, there is no point in talking about ‘air’ or ‘cable.’ Third, though the rights of broadcasting organizations include both air and cable rebroadcasting, the internet is not mentioned here. Therefore, the final solution is to perfect the law. The application of the law is actually another issue.”


Legal Protection and Adjustment of Interests

Some people believe that sporting events are programs for the public good, but there are also private interests and sectional interests in them. While maintaining the non-commercial purpose and raising people’s quality of life, sporting events will also inevitably cause the conflicts of interests between different entities, such as the conflicts between the monopolistic dominating media and other comparatively weaker demand sides. Therefore, it is necessary to balance the interests between the relevant parties at the same time while emphasizing intellectual property protection.

Professor Fei Anling thinks that an important premise for the discussion on the issue of sporting events programs is to treat them as an industry. Actually they have already been categorized as an industry in the national economy data of the National Bureau of Statistics. As to the legal problem of sporting events programs, we have to first consider what conflicts they are facing because the conflicts of interests are the roots of the legal problems. There are many conflicts surrounding the sporting events programs, some of which have already been buffered by the intervention of large quantities of advertisements. The conflict between different broadcasters in the division of the huge profit brought by the monopolized broadcasting is an important and major conflict which sporting events programs are facing at present and which has not yet arrived at the real balance point.

Professor Qu Sanqiang from the Law School of Peking University explains: “Sporting events are also a kind of cultural transmission. They have some elements of public entertainment, and they are related to very broad public interests. Presently, with the strength of science and technology, sporting events have enlarged their range of interests. This is the expansion of the private sphere into the public sphere. This kind of expansion requires a legal system to adjust in order to divide the interests. This is the nature of the problem. What kind of legal system can be used to adjust these interests? The first one that came into people’s mind is the copyright. They want to use the copyright as a ‘bottle’ to contain the sporting events so as to solve the problem of profit distribution. There is a saying that if you drip one drop of tomato juice into the sea, you can’t claim the whole sea. The core of the sporting events is the private right, but there shouldn’t be additional protection for such a right. The protection is too much for sporting events if they are categorized as film products, because in this way they are suspected of infringing upon the public sphere. They actually only deserve a comparatively weaker protection. It’s appropriate to protect them as a kind of collective work.”

“The law can be changed. For the copyright, sporting events are a kind of new phenomenon and new problem. However, we don’t have to cut the feet to fit the shoes, and try our best to fashion the sporting events programs into something that can be put into the current legal framework. We can actually adjust the law through legislation, and try to find a more appropriate legal system to make the adjustments. There are two ways to adjust the legal system: one is to establish new laws; the other is to further interpret the current laws,” Qu Sanqiang further explains.

Indeed, it’s impossible to solve the legal dispute of the protection for sporting events programs in a short period of time, but what the industry people care more about is what the IP-related judicial and legislative institutions will do to solve this problem under the current situation that the stipulations in the current laws are ambiguous and sometimes even contradictory to each other.

(Translated by Snow Li)

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