Beijing IP Court Rules on Copyright Protection for Sports Broadcasts

jordan

According to a recent posting on the Weixin account of IPHouse (结案信息 ┃ 北京知识产权法院审结涉及体育赛事节目的两起著作权侵权纠纷案, March 30, 2018), the Beijing IP Court has now decided the second instance appeals of two cases involving online piracy of sports broadcasts, an issue that is important to the development of China’s professional sports, as well as Olympic broadcasters and foreign leagues with large Chinese audiences, such as the National Basketball Association.

Most Chinese academics have been in agreement that live broadcasts (including webcasts) of professional sports broadcasts need to have some form of IP-related protection, whether under the Anti-unfair Competition Law, as a subject of the Copyright Law, or as a form of “neighboring rights” under China’s Europe-inspired copyright system.   During the 2008 Beijing Olympics, the broadcasts of the Olympic games also enjoyed a form of sui generis protection against piracy – an issue that I had been involved with along with rightsholders at that time.  The controversies surrounding the consequences of each form of possible protection were detailed in an article in 2010 by Prof. Seagull Song,  as well as a more article by Wei Liu and  Jiarui Liu (“Copyright Protection of Sports Programs in China,” 63 Journal of the Copyright Society of the USA (2017)).  It has also been the subject of meetings and conferences hosted by the United States and others, experts dialogues and numerous blogs posted here, including a blog on the lower court case posted on here.

Copyright protection would afford address interactive streaming over the internet, while neighboring rights protection affords rights to broadcasters.  Many believed that unfair competition was too vague and could create difficulties in licensing internationally.  These issues were raised in the context of the long-overdue, proposed amendments to China’s Copyright Law.  For these reasons, the 2013 US-China Experts Dialogue, in particular, made the following recommendation:

“4.3 Live Sports Programming and Non-interactive Streaming

The experts unanimously agreed that when the production of live sports programming involves creativity and originality, it shall be protected under current China Copyright Law.  The experts supported the provisions of the latest available amendment of the Copyright Law which provides a bifurcated approach – the adoption of “broadcast rights” to give protection to non-interactive streaming media and the right of communication through information networks to protect interactive streaming media. This approach should provide greater flexibility and depth to the protection of the copyright.”

Delays in resolving these two cases were understandable in light of the uncertainty around the proposed amendments to the copyright law, the significance of these issues to numerous rightsholders and sporting events, the increasing importance of licensing revenue in the China market using international copyright standards,  the impact on Chinese rightsholders that may be pursuing cases overseas where copyright protection is more secure, and the role of copyright protection in providing a foundation for a diversity of revenue streams in order to provide greater stability to the beneficiaries of the system (see the “Jordan” store that has recently opened up in Beijing, above).

In the Sina case, which was the subject of my previous blog, the lower court had determined after some exhaustive analysis that the live broadcast of a sporting event constituted a cinematographic “work” under China’s copyright law.  The Beijing High Court reversed noting that cinematographic works have to be fixed/stable and creative.  In the case in suit, the production had not been stable and fixed in a material form and therefore did not constitute a cinematographic work.  Moreover, as Sina did not pursue the anti-unfair competition claim on appeal, the Court had no basis to adjudicate that claim to provide an alternative avenue of relief for it.

In the companion case involving CCTV and its recorded broadcasts of the Brazilian World Cup (2014), CCTV had advocated that the broadcast constituted either a cinematographic work or an audiovisual recording (entitled to neighboring rights protection).  The lower court had determined that it was entitled to be considered an AV recording and had awarded 670,000 RMB in damages.  The Beijing IP Court confirmed that it was also entitled to protection as an AV recording which is protected over information networks in part because it was stable and fixed on a physical medium and, as with the prior case, it was not sufficiently creative to be a cinematographic work.  The court however increased the damage award to 4,000,000 RMB.

Based on this summary, the cases seem to leave open the question of whether AV recording protection afforded as a “neighboring right” to a broadcaster, also permits the broadcast to claim infringement for a live/interactive retransmission of the broadcast over the internet, which was not a fact at issue in this case.  Broadcasting organizations do enjoy neighboring rights protection under Article 44 of the Copyright Law.   However, this neighboring rights protection most directly addresses wired and wireless retransmission of the signal, rather than interactive communication over the Internet (See article by Seagull Song, and quote above).  Moreover, this was exactly the problem that was faced by the Beijing Copyright Administration in the 2008 Olympics when it enacted short-term, sui generis rules to address this problem.  I hope that the full case will explain this further.

Article 41 of the PRC Copyright Law grants the owner of video recordings the right to distribute the recordings over an information network.  The court could have resolved the issue of the stability/fixation of the broadcasts in both cases by acknowledging any momentary delay in broadcasting and consequent fixation in real time broadcasting as a “recording” (see video of editing at an NFL game, below).  Moreover, the level of creativity being required of a cinematographic work seems unduly high, particularly when compared to comparably lower levels of creativity required of photographic works, as well as the professional editing, narration and script line that goes into any professional broadcast, along with the copyright attributable to various elements of the broadcast, such as the narration, mid-game performances, etc.  Thus, these cases do not fully address protection for the less controversial creative aspects of professional sports broadcasts.  Due to the temporal value of a live sports broadcast, it is also important that rights are clearly defined in advance, a task for which local case law developments are ill-suited under China’s system, and that must apparently wait until legislative reform.  The Beijing IP Court did use the tool of enhancing damages to help address the need for greater deterrence, however it appears on the substance of copyrightability, its hands were tied by current legislation.

I welcome any further analyses, and postings of the Chinese and/or English texts of the case that may help further clarify these decisions and their impact.

 

Upcoming PTO Program on Sports Broadcasting

USPTO and China’s National Copyright Administration are co-sponsoring a program on IP (copyright) protection for sports broadcasts, an issue that has been under discussion at least since the Beijing Olympics (2008).  Here is the  announcement and a draft agenda.

The program will be held June 23, 2017 in Beijing.  Contact jia.liu@trade.gov for further information and registration.

Beijing Court Grants Copyright Protection to Live Sports Broadcast

 

In a very positive development for Chinese football sports leagues, CCTV, Tencent, NBA,  as well as Olympic and other international sports competitions in China,  the Chaoyang basic level court in Beijing determined on June 30 that live broadcasting of a sports competition is sufficiently creative to be protectable under China’s copyright law in Sina v. iFeng(2014)朝民(知)初字第40334号). The case can be found here in Chinese.   The key language of the case with my very  informal translation is as follows:

新浪互联公司在本案中提出,涉案转播的赛事呈现的画面应受到我国著作权法保护的作品范畴。依照法律规定,具有独创性并能以某种有形形式复制的智力成果,才可构成我国著作权法所保护的作品。是否具有独创性,成为本院判断涉案赛事转播画面是否构成作品的关键。独创性意指独立创作且不具有对他人作品的模仿、抄袭。

In the present case the Internet company Sina raised an issue involving the presentation of broadcast screens (pictures) and their status as works under the copyright law. In accordance with the law, protected works must be original intellectual achievements that can be replicated in some tangible form. The key factor for this court in determining whether the broadcast of a live competition was original is the broadcast screen.   Originality means independently created, which is to say that it does not imitate the work of others or is a copy.
从赛事的转播、制作的整体层面上看,赛事的转播、制作是通过设置不确定的数台或数十台或数几十台固定的、不固定的录制设备作为基础进行拍摄录制,形成用户、观众看到的最终画面,但固定的机位并不代表形成固定的画面。用户看到的画面,与赛事现场并不完全一致、也非完全同步。这说明了其转播的制作程序,不仅仅包括对赛事的录制…

In broadcasting a competitive event, from the point of view of the overall production, the event broadcast and record production involves shooting by setting several or several dozens of  unfixed or fixed recording equipment as the basis to film and record to a final picture for the user or audience to see the final picture.  However a fixed position does not mean a fixed picture.  The picture that the user sees is not completely the same as taking place on the field, and it does not proceed completely or fully synchronized. This explains that the broadcast production process is not just a record of events, …

就此,尽管法律上没有规定独创性的标准,但应当认为对赛事录制镜头的选择、编排,形成可供观赏的新的画面,无疑是一种创作性劳动,且该创作性从不同的选择、不同的制作,会产生不同的画面效果恰恰反映了其独创性。即赛事录制形成的画面,构成我国著作权法对作品独创性的要求,应当认定为作品。从涉案转播赛事呈现的画面看,满足上述分析的创造性,即通过摄制、制作的方式,形成画面,以视听的形式给人以视觉感应、效果,构成作品。

In this regard, although there is no provision on legal standards of originality, but it should be understood that the choice of lens for recording events, editing, a new screen for viewing the picture, is undoubtedly a creative work, and the creation of different options and different productions, will produce a different picture of the effect that  precisely reflects its originality. The formation of the picture of the sporting event constitute originality under the Copyright Law of China and should be recognized as a work. From the perspective of this case, the picture screens presented satisfy the requirements of originality not only in their filming and production, but also in the auditory and visual style which thereby gives a final result of audio and visual sensations, thereby constituting a work.

The case may be appealed to the Beijing IP Court.  Damages of 500,000 RMB were assessed, plus costs and an injunction.

Update from August 6, 2015:  here’s the case in English language translation.

Update from March 11, 2016: Here’s a link to an article on a proposal by an official from Le TV to the NPC and CPCC on protecting copyright in sports broadcasts. The focus of the proposal is to strengthen sports competition intellectual property protection and promote the healthy development of China’s sports industries (“加强体育赛事知识产权保护 促进我国体育产业健康发展”). The first element of the proposal is to adopt the international standard of using copyright law to protect sports broadcasts as a “work”, which the author notes is available under US copyright law and has been recognized by nearly all European countries, according to a study from the University of Amsterdam (See Section 1.4.1).

How creative is the professional sports broadcast to merit copyright protection.  The video below from an NFL game gives some indication of what is involved.    (updated September 1, 2016 with this video).

Protecting Chinese Broadcasts …. In the United States

As I noted recently, a Beijing district court recently decided that live broadcasts of sports events can be protected under China’s copyright law (June 30, 2015).

Only a few weeks earlier, a US district court decided in CCTV et al vs. Create New Technology (HK) Ltd.  et al.  (June 11) (Case No. CV 15-01869 MMM (MRWx) (C. D. Cal) (Morrow, J). that the pirated streaming of live and time-shifted CCTV and TVB  (Hong Kong) channels  through media boxes  and apps on a peer-to-peer network and/or through servers in the United States to large numbers of users who had no right to access the content constituted copyright infringement.   The CCTV and content covered by the court’s preliminary injunction included live news, sports, and television.

The U.S. case underscores the availability to Chinese plaintiffs of strong civil remedies in the United States, including preliminary injunctions. Although Chinese courts normally dispose of first instance cases in six months, this case was filed on March 13, 2015 and the preliminary injunction was granted June 11 – precisely 90 days later, not including the end date.  In other words the preliminary injunction in this case was rendered in case involving foreign interests in less time than a Chinese court would have rendered its first instance decision in a domestic case (time frames are expanded if there is a foreign litigant).

Of about 90,000 civil IP cases in the Chinese courts in 2012, there were only  27 cases involving preliminary injunctions.  By contrast, US courts are, by all accounts, more willing to grant provisional relief of all kinds.  Judge Morrow, in her decision, noted that “unauthorized and uncompensated internet streaming that competes directly with the television programming of a  copyright owner and its authorized licensees causes harm that is ‘neither easily calculable, nor easily compensable.’ ”  She further stated that “given the extensive nature of the infringement alleged … it is unclear that defendants would be able to satisfy any damages award entered. This further supports the conclusion that injunctive relief is appropriate in this case.”

These two recent cases are positive steps in protecting broadcasts, including live sports broadcasts.  The U.S. case is also a good guide post for Chinese courts looking to extend the availability of provisional remedies in civil IP adjudication for foreigners and Chinese alike, including in cases involving online infringement and live broadcasts.

Updates March 6 – 12, 2018

SIPOstats

From SIPO’s 2017 Statistical Report (see last entry below).

1.  Intellectual property issues discussed during China’s “two sessions” – the annual meetings of the national legislature (The National People’s Congress) and the top political advisory body (the Chinese People’s Political Consultative Conference). In addition to proposals on reorganizations of State agencies, including SIPO and SAIC,  Premier Li Keqiang delivered a government’s work report on behalf of the State Council. In this work report, Li Keqiang noted that the total number of in-force Chinese invention patents issued in China had tripled, the volume of technology transactions had doubled, and trademark registration cycle had been significantly shortened. In addition, Li set out the agenda for the government in 2018, and one of the items on this agenda is to strengthen intellectual property protection and enforce a punitive compensation system for intellectual property rights infringements.

The Chief Justice Zhou Qiang (周强) also delivered the Supreme People’s Court (SPC) work report. Zhou emphasized again the role of judicial protection of IP rights. This report often provides a hint of the more detailed IPR White Papers that the SPC publishes around IP Week in April.

Wan Gang (万钢), minister of the Ministry of Science and Technology, also addressed IP related issues during a press conference. A more detailed report on that is forthcoming.

A number of NPC delegates also made proposals regarding IP issues. Many of these are unlikely to be enacted into law. For instance, a delegate from Royalstar (荣事达) proposes using Chinese character as one of the basic requirements in trademark registration; a delegate from Su Ning urges IP protection/clarification for live broadcasts of sporting events (see my blogs on the ongoing debate over copyright protection for sports broadcasts); and a delegate from Nanjing Normal University urges stronger protection for Internet service platform, a topic which is long overdue for reform.

2.  Huawei tops European patent applications Huawei ranked the first in patent applications in 2017 on the European Patent Office patent-filing list, the office said in its latest reporting. With 2,398 patent applications in 2017, Huawei became the first Chinese firm that tops the EPO ranking in the office’s history, followed by Siemens with 2,220 and LG with 2,056.

3.  CAS plans patent auctions  The Chinese Academy of Sciences (CAS) will hold a patent auction for the first time, involving a a portfolio of 932 patents. The patents were selected from those obtained by 104 institutes and 89 national labs affiliated with the academy, and cover a wide spectrum of fields, including new materials, intelligent manufacturing, advanced biomedical technology, new energy and ecological environmental technology. The 932 patents are a small subset of CAS’ patent holdings in China of approximately 46,000. According to An Lili from CAS’s intellectual property center, the minimum starting bid for the patents is expected to be 100,000 yuan (15,700 U.S. dollars). The Intellectual Property Operation and Management Center of CAS is promoting the patents in the coastal provinces of Shandong, Jiangsu and Zhejiang as well as the cities of Shanghai, Fuzhou and Shenzhen, where auctions will be held in March.

4.  SIPO releases basic statistics of patent application in 2017  As detailed in this collection of tables (Chinese language), the United States was the second largest foreign filer at SIPO, after Japan (about 41,000 to 37,000 applications — see chart above).   State Grid was the largest Chinese invention patent grantee, with about 3,622 patents, ahead of Huawei (3,293).  Among foreign filers, the United States had four companies in the top 10: Qualcomm (no 1), Intel (7), IBM (8) and General Motors (10). Huawei was the single biggest Chinese user of the PCT system. The report also provides snapshots of One Belt One Road filings. China’s top two filing destinations were India and Russia, while China’s top two foreign filers in the OBOR were Singapore and Israel.