Author: Music Entertainment Law
On October 12th, 2020, under the leadership of lebron james, the Los Angeles Lakers won the championship again after ten years, which is undoubtedly the best gift for Lakers fans who lost Black Mamba Kobe Bryant in 2020. Before the Lakers won the championship, it was probably the best news for fans that CCTV replayed the NBA.
In 2019, due to inappropriate remarks made by general manager of NBA Rockets about Hong Kong, which seriously hurt the national feelings of fans in China and China, CCTV decided to stop broadcasting NBA-related events. Even Tencent Sports, which bought the exclusive rights of NBA events in the next five years with a huge sum of money, once stopped broadcasting NBA. Fortunately, CCTV did not completely ban the NBA. Tencent Sports "quietly" rebroadcast the NBA in October 2019. After all, 500 million investment cannot be wasted.
But for fans, Tencent Sports’ high membership fee makes them flinch, so the rebroadcasting of NBA on CCTV Sports Channel is undoubtedly not a "big welfare" for fans. At this time, Xiao Bian, who is an NBA enthusiast and a legal practitioner, is puzzled. Can live sports events be copyrighted as movies? CCTV rebroadcasts the NBA. Is Tencent’s 500 million investment wasted? If you have the same question, let’s find out with Xiaobian!

1. Does the live broadcast of NBA sports events constitute the object of copyright protection?
In recent years, whether it is Qiong Yao v. Zheng Yu or Jin Yong v. Jiangnan, the controversy behind it shows that copyright is getting more and more attention and protection. Universal copyright convention and Berne Convention both express the need to protect human intelligence and creative achievements. As a participating country of the Convention, China has also made protective provisions on copyright.
According to the relevant provisions of China’s Copyright Law, the copyright owner enjoys the copyright, and no individual or unit may infringe upon the copyright of others. Article 3 stipulates that the objects protected by China’s Copyright Law include (1) written works; (2) Oral works; (3) Works of music, drama, folk art, dance and acrobatics; (4) Works of art and architecture; (5) Photographic works; (6) cinematographic works and works created by methods similar to cinematography; (seven) engineering design drawings, product design drawings, maps, schematic drawings and other graphic works and model works; (8) Computer software, etc.
As a kind of live broadcast of sports events, the live broadcast of NBA sports events mainly focuses on shooting and broadcasting the live events of sports events. Can this kind of live broadcast of sports events constitute a film work or a work created by a method similar to filming, and then be protected by copyright?
According to the Regulations for the Implementation of the Copyright Law, the works protected by the Copyright Law refer to the intellectual achievements that are original and can be reproduced in some tangible form in the fields of literature, art and science. Therefore, to analyze whether the live broadcast of NBA matches belongs to the object of copyright protection, it mainly depends on whether the live broadcast is original and whether it can be copied in some tangible form.
1.1 How to identify originality?
International copyright treaties, such as Berne Convention and Copyright Treaty of the World Intellectual Property Organization, have not specifically recognized originality. Because of different legal systems, different countries have different understandings of originality.
1.1.1 "forehead sweat standard" and "floor standard" in common law system.
The anglo-American legal system first made it clear in the Bleistein case in 1903 that the work needed to be completed by the author independently. In later practice, Britain and the United States took "whether to work or not" as one of the factors to identify originality in order to protect the author’s labor when creating works, which is also what we call "forehead sweat standard".
In the Anglo-American legal system at this time, the court decided whether the work was original or not mainly by considering whether the work was independently completed by the author and whether the corresponding labor was invested. At this time, originality did not pay too much attention to the "creativity" of the work.
Subsequently, in the Feist phone book case in 1991, the court began to emphasize the "creativity" of the work, that is, if the author simply put in labor, he could not determine that his work was original, but also needed a certain degree of creativity. However, Britain and the United States did not clearly define the "more or less" of creativity, but adopted the "floor standard", that is, creativity can be recognized as long as there is a small amount of creativity.
We can see from it that,British and American countries identify originality mainly on the basis of "independence"-independent labor completion and "creation"-creativity.
1.1.2 High standards of civil law countries
Different from the lower standard "floor standard" adopted by Britain and the United States, the countries of civil law system are more strict in determining originality. Taking Germany as an example, it believes that originality requires the production of works to be creative labor input, and the labor input at this time is not just a simple labor input when the forehead sweats, but requires certain creativity. In other words,The originality at this time requires that the work can reflect the author’s intelligence and thoughts and feelings, and the expression of these thoughts and feelings needs to reach the level of reflecting the author’s personality..
At the same time, creativity is not as low as the "floor standard" required by Britain and the United States, but requires a high degree of creativity. This is mainly because in civil law countries, works are regarded as the children of the author, and works are the extension of the author’s personality spirit and the embodiment of the author’s thoughts and feelings. It regards copyright as a personal right, so it adopts this high standard to protect the author’s rights.
1.1.3 China’s originality standard
There is no clear legal provision on originality in legislation in China, and domestic scholars have different opinions on it. Professor Cui Guobin believes that originality requires independent creation and the creative result has the lowest degree of creativity; Professor Li Mingde believes that the author has invested in intellectual labor and has the lowest degree of creativity when creating works; Professor Wang Qian believes that originality requires that "the work product should be independently completed by the author" and "the creation of the work product should have a certain degree of creativity" …
Analysis of the views of scholars, it is not difficult to find that their recognition of originality has one thing in common."the lowest degree of creativity"This shows that our country has not adopted the high standard of originality similar to that of civil law countries, but only requires the lowest degree of creativity, which is also reflected in judicial practice.
1.2 Is the live broadcast of NBA events original?
Combined with the above introduction to the identification of originality, is it original for the live broadcast of sports events? In this regard, everyone has different views. Some people think that the focus of live broadcast of sports events lies in sports events, which are interpreted by athletes, and the filmmakers only record and broadcast according to the needs of watching the games, which should only constitute video products. However, some people think that recording sports events also reflects the intelligence and thoughts of the recorder and has certain originality.
Speaking of this, we have to mention "the first case of China’s game broadcast", that is, the five-year-long "Sina v. Fenghuang. com infringement case". After the first trial, second trial and retrial, the Beijing Higher People’s Court recently made a retrial judgment, overturning the second trial judgment, and found that the involvement of Phoenix Net and its operator Beijing Tianying Kyushu Network Technology Company infringed the copyright of Sina Internet Information Service Co., Ltd.It is believed that the live broadcast of sports events is original and constitutes a film work, which can be protected by copyright.

This case can be described as full of twists and turns. In the first instance, the court held that "the selection and arrangement of the recording shots of the competition to form a new picture for viewing is a creative labor, and the creativity will produce different picture effects due to different choices and different productions, which further reflects its creativity." That is to say, in the judgment of the first instance, the court found that the picture formed by the recording of the competition constituted the requirement of the originality of the work in China’s copyright law and belonged to the works protected by the copyright law.
However, in the second trial, the court classified this kind of film production as documentary film production, and determined it according to the original identification standard of documentary film production, so it was considered that it was not a film production, but a video production.
Subsequently, Sina did not recognize the judgment and filed a retrial with the Beijing Higher People’s Court. The Beijing Higher People’s Court held that the lowest level of creativity was adopted in the determination of originality in China. In other words, China only discussed the "existence" of creativity, not the "quantity" of creativity. The recording process of sports events reflected the choice of shooting angle, lens switching, shooting scenes and objects, selection, editing, arrangement and shooting pictures. In the final judgment of the Beijing Higher People’s Court, the court found that the live broadcast of the event involved constituted "a work created in a way similar to making a film".
From the above cases, we can see that,The live broadcast of sports events is original because it embodies the photographer’s unique ideas in the filming process.In the process of live broadcast of NBA events, Tencent Sports will not only film itself, but also explain it outside the picture, which is original in both the filming idea and the presentation of the explanation. Therefore, according to the existing judicial practice, we can conclude that the live broadcast of NBA events is original.
1.3 Does the live broadcast of the event belong to a certain medium?
We know that the live broadcast of sports events needs to be filmed on a certain medium if it wants to constitute a film work. In the case of Sina v. Fenghuang. com, the court of second instance found that Sina’s live broadcast of the Super League did not fix the filming on a certain medium, which exceeded the definition of film works in Article 4 of the Regulations for the Implementation of Copyright Law.This article stipulates that cinematographic works and works created by methods similar to cinematography refer to works that are filmed on a certain medium and consist of a series of pictures with or without sound, and are projected by means of appropriate devices or disseminated by other means.However, the regulation does not regard fixation or stable fixation as the constitutive requirements for determining whether a work is a work, so "shooting on a certain medium" should be interpreted broadly and leniently, so it is also affirmed in the judicial judgment that the live broadcast of the game belongs to shooting on a certain medium.
To sum up, if the live broadcast of sports events can reflect the individual choice and arrangement of the filmmakers, rather than just mechanical recording, it will be original, and the broad media interpretation also shows that the live broadcast of sports events meets the requirements of "shooting on a certain medium". Therefore, if Tencent Sports Live NBA matches meet the above requirements, it can also be the object of copyright protection. In fact, as early as before this judicial decision, the live broadcast of sports events was difficult to be recognized as a film work, and the filmmakers were easily infringed by their peers. In the face of such infringement, how did they do it?
Second, the infringement that may be involved in the live broadcast of sports events
2.1 may constitute unfair competition
Among many litigation disputes involved in live broadcast of sports events, the most common one is unfair competition dispute, which is mainly due to the fact that in the previous judicial practice, the products formed by live broadcast of sports events are difficult to be recognized as works protected by copyright law. Therefore, under normal circumstances, many infringers will choose to file a lawsuit on the grounds that the infringer violated the Anti-Unfair Competition Law. For example, in the case of CCTV International v. "I love chatting", the court decided that I love chatting about the company’s behavior of "broadcasting" CCTV related channels on its "tv powder" client.Although it does not constitute a broadcast act as stipulated in Article 45 of the Copyright Law, it obviously violates the market principle of fair competition, undermines the market competition mechanism, violates the principle of good faith and recognized business ethics, and constitutes unfair competition.
2.2 may constitute a violation of the right to disseminate information on the Internet.
Through the previous judicial practice, we can see that it is difficult to identify the products produced by the live broadcast of such sports events as movies or works created by similar methods. During the filming of 2014 fifa world cup TV program, Stormwind broadcasted the live broadcast of the events produced by CCTV, which is similar to the case of Sina v. Phoenix. In the second instance, the court did not identify the live broadcast of the events produced by CCTV International as movies, because according to the relevant provisions of China’s copyright law, if it cannot be identified as movies, it should be regarded as video products. Therefore, the broadcast behavior of Stormwind Technology also constitutes an infringement on the information network communication right of CCTV International.
Of course, in the latest retrial judgment of "CCTV International v. Stormwind Technology" on October 9, 2020, we found that, like Sina v. Phoenix.com, the Beijing Higher People’s Court once again determined that CCTV International’s live sports events constitute film works, which also gave new guidance to courts at all levels in the future in judging similar cases, that is, live sports events can be recognized as film works if they meet the relevant recognition conditions. This is a breakthrough, and this kind of judgment also shows that the criteria for determining the originality of a work do not reflect the level, but only the presence or absence. Such progress is conducive to solving the problem of protection of sports programs. We know that the most important thing about this kind of sports events is timeliness, and viewers rarely watch them again after watching them. Therefore, if only the live sports events constitute video products, it will be difficult to stop unauthorized TV broadcasting and Internet broadcasting due to the "safe haven principle" involved in the right of network information dissemination, which is likely to bring irreparable losses to the producers of the programs. At the same time, it is considered that it is difficult to solve the demand of subsequent program trading and protection only by the Anti-Unfair Competition Law.
Third, is it worthwhile for Tencent to spend 500 million yuan to buy the exclusive broadcasting rights?
From the above analysis, we can see that the live broadcast of sports events can already constitute a film work in copyright. After Tencent bought the sole broadcast right, if other video broadcast platforms broadcast the live broadcast of the events recorded by Tencent, it will constitute an infringement of Tencent Sports, and Tencent Sports can file an infringement lawsuit for compensation.
At the same time, Tencent Sports can monopolize the domestic live broadcast of this event by virtue of its exclusive broadcasting rights, and Tencent Sports charges a high membership fee and its various reward functions will bring more profits to Tencent. Tencent’s signing the NBA this time and buying its exclusive broadcasting rights for the next five years can be said to be very cost-effective. Despite the influence of the suspension of NBA broadcast by CCTV last year, Tencent can still make huge profits as the only live broadcast platform in China.
In fact, there is still a "hidden knowledge point" here. Why did Tencent buy the sole broadcasting right and CCTV still broadcast it? This is mainly because the NBA gives some NBA games broadcasting rights or highlights to CCTV Sports Channel free of charge every year, and Tencent Sports buys online live broadcast rights, while CCTV is a live TV broadcast, which has no conflict of interest with Tencent Sports’ exclusive broadcast rights. Therefore, although Tencent bought exclusive broadcast rights, it is only online live broadcast rights, and CCTV can still broadcast them for free on sports channels.
After knowing this "hidden knowledge point", will you choose Tencent or CCTV in the future?
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