Discussion on the Copyright of Live Sports Event Screen in the New Media Era

Abstract: Under the background of the rising of new media technology, the commercial value of live sports event is increasing rapidly. The copyrightable of live sports event screen is doubtful both in theory and in practice. The author thinks that live sports event screen has the essence of film works, meets the requirements of originality and fixed tangible media, and should be protected as such film works.

Keywords: live sports event screen | originality | category of film works

I. Definition of Live Sports Event Screen

Live sports event screen refers to the image expression that is presented to the end audience through certain data transmission methods, taking the live sports event as creative material, supplemented by editing, processing and other video processing methods.

Sports events do not fall under the scope of works subject to copyright protection due to their highly randomness, uncertainty and irreproducibility. In this regard, the overwhelming majority of countries worldwide have reached a consensus that "no copyright is available in sports events". However, live sports event screens shall be different from sports events. Such screens are created by the producers by means of editing, arranging and processing, etc., in addition to truthfully recording the competition screens, the producers will also give specific emotional rendering and visual impact to the audience by means of close-up, slow motion and playback. Therefore, against the background of new media technologies such as mobile network, mobile TV, IPTV, OTT cable transmission and CTT transmission, the value of live sports event screens is becoming increasingly prominent and such screens urgently need to be protected by copyright.

II. Disputes over Copyright of Live Sports Event Screens

(I) Questioning the originality of live-streaming screens

Because live sports event screens are an objective record of the competition itself, based on the requirement of authenticity and uniqueness of the live behavior, the more realistic the screen is, the less space for the author to create. So, even after certain post-processing, it is difficult to meet the requirement of originality. At present, the most controversial issue about whether live sports event screens are copyrightable is its failure to meet the high level of originality required by such film works.

In this regard, the author believes that live sports event screens meet the requirement of originality. First, copyright law only considers whether there is a problem of originality, not a problem of high or low. The originality stipulated in copyright law should be different from the creativity stipulated in patent law. Originality is not based on substantive characteristics compared with existing works. From the perspective of the "forehead dripping sweat" principle, originality focuses more on the consideration of the originality of the work than on the absolute measurement of the degree of intellectual input and the degree of distinction between reality. Second, the narrow space of creation does not deny the existence of originality of the work. For example, although various computer fonts embody the same characters, but different expressions (such as: Xiuying style, Jing style, etc.) meet the requirement of originality of the work. Third, live sports event screens embody the unique arrangement of staff such as the choreographer. In the process of live sports event screens, more and more dramatization and film techniques as well as AR, VR techniques are used. Choreographer and other staff members make artificial choices, cuts and arrangements on the basis of a large number of pictures produced from different shooting angles, which embody the unique personality and emotions of the creator. Fourth, if the requirements for the originality of live sports event screens are too high, it will be adverse to the development of sports industry in our country. The value of the live sports market has attracted attention in recent years, such as Tencent paying $1.5 billion for the five-year broadcasting rights of NBA events, and Sports Power paying $8 billion for the global media rights of Chinese Super League Football League. If the live sports event screens cannot seek copyright law remedies, various infringements such as on-demand, broadcast and chain piracy will become more rampant, which will have a great impact on the development of live sports event industry in China.

Therefore, the level of creation can not deny the originality of live sports event screens, which should be the object of protection of copyright law.

(II) Obstacle of failure to fix live-streaming pictures on tangible media;

Live sports event screens are based on real-time requirements, so they cannot be fixed in time on tape, film and other tangible media. According to Article 4, paragraph 11 of the Implementing Regulations of the Copyright Law, so-called cinematographic works and similar cinematographic works must be filmed on certain media. Therefore, courts often exclude live sports event screens from the protection of such cinematographic works based on this article.

In this regard, the author believes that live sports event screens have been fixed in certain media. First, the fixation of works in tangible media is not a prerequisite for protection. For example, the oral works and improvised works protected by our country's "Copyright Law" are not fixed in some form on the relevant media at the moment of production. Secondly, the fixation of works in tangible media only has the value of evidence, does not affect the production of rights. Zheng Chengsi, a famous scholar, believes: "Requiring a cinematographic work to be fixed in material form beforehand is intended to facilitate proof when a copyright dispute arises."Finally, with the evolution and development of new media technology, the fixation of tangible media should be interpreted in an open way. Fixed media should not be limited to traditional tangible media, should be expanded to intangible media. The live sports event screens seen by spectators are not the broadcast of the event, but the reproduction of the cached images in the live broadcast device. Such "offline storage", "online storage", "link storage" and "cloud storage" should be understood as being fixed in certain media.

III、 Judicial Practice of Copyright Protection of Live Sports Event Screens in Our Country

On September 27, the highly publicized "first case of copyright of domestic sports event screens" settled. Beijing Higher Court made a retrial ruling on the copyright and unfair competition dispute between Sina Company and Tianying Kyushu Company and LeTV Company, determining that the film constitutes the Super Sports Event program in the case.

Beijing Higher Court held that there are two major focuses of controversy in the case: first, whether the program constitutes a film-like production method; second, how to determine the nature of the behavior of Tianying Kyushu Company and LeTV Company and LeTV Company under the above premise and their legal liability. With regard to Focus One, the court held that the identification of originality of such film works should be based on the existence of originality. The program involved is a confrontational football event with great appreciation. In order to meet the requirements of live broadcasting and rebroadcasting, the production of such program has made full use of a variety of creative techniques and technical means. In the production process of the program involved, a large number of camera techniques, montage and editing techniques were used, and the individual selection and arrangement of camera, camera switching, shooting scene and object selection, shooting scene selection, editing, editing and off-screen narration all embody the individual selection and arrangement of camera, director and other creators. It does not belong to the video products with or without accompaniment formed by mechanical recording, which meets the requirement of originality of such film works. With regard to the second focus of controversy, the court pointed out that the act of live broadcasting did not fall under the scope of information network transmission rights and did not fall under the scope of adjustment of broadcasting rights, thus the "catch-all" rights clause of Art 10 sec 1 (17) of the Copyright Law shall apply. Therefore, the act of live broadcasting infringed upon Sina Co's "other rights enjoyed by the copyright holder" in respect of the program involved in the case.

IV、 Conclusion

With the advent of the new media era, strengthening the copyright protection of live sports pictures is of realistic urgency and importance. Protecting live sports pictures as a film-like work does not create any theoretical barrier to original judgment and fixed tangible media, and it is also confirmed by the judicial practice in China. However, under the current situation of protecting the rights of live sports pictures by borrowing the "catch-all" clause, in order to provide better protection and relief for live sports pictures, our country shall further expand the interpretation on broadcasting rights to deal with the more severe and urgent infringement acts of non- interactive real-time broadcasting in the future, so as to promote the benign development of our country's live sports event industry.