Live broadcasts of football games failed to reach the fixation and originality requirements for copyright protection, held by the Beijing IP Court in its recent judgment.

Background

The judgment was in relation to a dispute between SINA.COM, a portal website which broadcasted live Chinese Super League football games on its internet site with an exclusive license from the game organizer and the operator of another portal website, IFENG.COM, where hyperlinks to the live broadcasts of two football games of Chinese Super League were offered, undermining SINA.COM’s flow of web audience. The Beijing Chaoyang District Court, the court in the first instance, decided that the live broadcasts for sports events constituted copyrightable work under the China Copyright Law, and IFENG.COM was subsequently found guilty of an infringement of SINA.COM’s copyrights. IFENG.COM subsequently filed an appeal to the Beijing IP Court. On March 31, 2018, the Beijing IP Court found that the live broadcasts of the football games offered by SINA.COM failed to reach the fixation and originality requirements for copyright protection therefore it decided to overrule the first instance judgment.

Decision of Beijing IP Court

In overruling the judgment of the Chaoyang District Court, the Beijing IP Court concluded that when “determining whether live broadcasts for football matches could constitute copyrightable work, it should first be clarified which category of work is under discussion.” Because during the first and second instances of court proceedings, SINA.COM claimed that the moving images content, offered by live broadcasts of football matches, constitutes “work of movies or work created by method similar to the filming of movies”, the Beijing IP Court based its analysis on whether the live broadcasts in issue constituted “work of movies” under Article 3 (6) of China Copyright Law1. Such analysis consists of three progressive layers2:

The constituent elements of work of movies include, inter alia, fixation of the moving images content in a tangible media and a certain level of originality which could be evaluated from the following aspects: the creativity in the selection of the subject matter for the filming; the intellectual choices made in the filming process and the original choices made in the selection and compilation of the images content. Whether or not the moving images content carried by live broadcasts of the Chinese Super League football games constitutes work of movies. Whether or not the moving images content carried by live broadcasts of the two football matches in dispute constitutes work of movies.

In conclusion, the Beijing IP Court decided that in a live broadcasting, the broadcasting happened simultaneously with the filming process, and the moving images content, in a whole, was not being fixed in this process, therefore, the “fixation” element had not been fulfilled. Furthermore, live broadcasts of the football games did not meet the originality requirement due to the lack of a certain level of intellectual creativity, which was largely due to the fact that the work of the cameramen and of the picture producers was mainly driven by the developments of the sporting events in the games. In particular, the objectivity of the games, the simultaneousness of the live broadcasting, the common expectations of the audience and the subjective rules imposed on the live broadcasting, did not leave much room for a certain level of original creation, and therefore the live broadcasting in issue failed to reach the originality requirement of China Copyright Law. Based on the above, the Beijing IP Court decided that the moving images content carried by live streams of the two football matches in dispute did not constitute work of movies, and therefore should not be entitled to copyright protection.

Discussion

In the China Copyright Law and its Implementation regulations, moving images content, based on the level of originality, is classified either as “work of movies or work created by method similar to the filming of movies”, which is copyright protected, or as “recording” which is a subject matter of neighboring rights. If the moving images content, carried in a live broadcasting, is clarified under the category of “recording”3, the right holder will only be entitled to neighboring rights that have a relatively narrower scope of protection compared to copyrighted work. Furthermore, though an owner to a recording enjoys the right to “disseminate the recording to the public through information networks”4, it essentially means that the recording has to be made available to the public from places as well as at times of their choices. However, this is exactly not the case for the live steams for the football games offered at SINA.COM, as they can only be accessed by the public at fixed times.

The Beijing IP Court, while denying the remedy to SINA.COM at the present case, pointed out that “because internet live broadcasting did substantially affect sports organizer and related licensee’s rights, it is necessary to make a further discussion on the possible remedy to [such entities] with regard to live broadcasts of sporting events”.5

This possible remedy, may lie in the “broadcasting organization’s rights” under Article 45.1. (1) China Copyright Law6, which provides that “radio stations and TV stations have the right to prohibit others from rebroadcasting the radio or TV broadcasted by these stations.” The problem, however, is that cable transmission such as internet live broadcasting, as a transmission “with wire”, has long been considered excluded from the wording of “rebroadcasting” as in the above cited provision, which only includes “wireless” transmission.

The Beijing IP Court, prior to the “ruling part” of its judgment, called for an amendment of the “broadcasting organization’s rights” under China Copyright Law, to also include “retransmission rights over the internet”, so that “it could constitute an effective remedy for the sports event organizers in similar circumstances”.7

With the rapid development of live steaming technology, the disputes caused by unauthorized retransmission and unlawful hyperlinking of live broadcasts of sporting events over the internet have become a pressing issue in the copyright law landscape. The Beijing IP Court’s present decision, which echoes with another Beijing court’s decision-Beijing Shijingshan District Court’s judgment on the “2014 Brazil World Cup” live broadcasting case8, was the first final decision made by a Chinese IP Court on this controversial issue. Significantly, the decision might impact ongoing litigation stemming from disputes over websites’ internet retransmission rights with regard to live broadcasting of sporting events. Other courts around the country might follow suit. Compared with the dimmer future of trying to increase the level of originality of sports live broadcast so as to achieve copyright protection for the broadcast itself, the more practical solution might be an amendment of China Copyright Law for a technology-neutral design of the “broadcasting organization’s rights” under Article 45.1. (1), which will be all the more imperative after the Beijing IP Court’s present decision.