China copyrights

Sports broadcasts aren’t recognized as copyright subject matter under Chinese statute law although they have been accepted as such in some of the Chinese case law. This makes it necessary for sports brands, such as leagues or their licensees, to tackle piracy using Chinese anti-unfair competition laws. These laws are considered less desirable because the claims are harder to prove and often require the disclosure of market-sensitive information of a kind not typically required in copyright proceedings.

The value of a sports broadcast diminishes rapidly as the game, race or event unfolds. Unlike scripted film or TV content, there is little value in re-runs or re-makes, and every instance of piracy involves mass infringement.  Sports brands need to take action against pirates in advance of an event or in its early stages. This requires urgent injunctive relief in every case. The introduction of copyright protection would make an entitlement to this relief clearer. No stakeholders or interest groups, whether foreign or Chinese, oppose this.

Why, then, aren’t sports broadcasts clearly recognized? The reason is that Chinese copyright law insists that the thing being broadcast be a copyright work. Unsurprisingly, Chinese law does not regard a game, race or similar event as a copyright work because, among other things, it is not scripted. That leaves only one candidate for protection: a “work of cinematography”. A work of cinematography enjoys protection as a copyright work, with streaming and other rights, because it is regarded as original. By contrast, the lesser category of “video recording” is not regarded as original and has only limited protection under neighboring rights. So, protection requires that thing being broadcast be a cinematographic work.

The trouble is that, even if you accept (as US copyright law does) that the making of a broadcast necessarily involves the simultaneous affixing of a recording, even that recording is regarded under Chinese law as being insufficiently original to be a copyright work. Maybe it’s a video recording, but in that case there’s no copyright protection at all. The absence of a script is more or less dispositive — unscripted likely means no copyright. On this view of things, no recognition can be given to the roles played by directors, editors, designers and technicians whose job it is to simultaneously assimilate live feeds from dozens of cameras. You’re then left with a bare broadcast, and that doesn’t help much either — the rights of Chinese broadcasters, under copyright law, extend no further than preventing re-broadcasts or the making of recordings, and they do not yet enjoy a streaming right.

The same issue arises in the Chinese music business, where it has been critical in cases brought by music labels against karaoke bars in connection with music video copyright. A public performance license is required by the bar only if the music video is a work of cinematography. No license is required if the music video is merely a video recording. Again, the rule of thumb applied by the courts is whether the music video is scripted or not. To use an example given by Jiarui Liu of Stanford Law School, this would mean the music video for Michael Jackson’s Thriller would enjoy copyright protection in China but the video for Moonwalker Live at Madison Square Garden would miss out.

I’ve spoken at and attended a number of conferences and seminars dealing with sports broadcasts in Beijing over the years.  The topic always comes back to an all-or-nothing approach to originality. At some point there is a debate about copyright versus neighboring rights, and someone usually stands up and says something like, “Ah yes, but Chinese copyright law is based on German law and this is how it’s done in German law”. People shrug and nod and mental notes are made to invite German lawyers next time, but otherwise the inquiry tends to stop there. So, I was happy when Jiarui Liu addressed the point during a recent Berkeley Law webinar moderated by Mark Cohen. In Liu’s view, under German law copyright and neighboring rights are in fact cumulative (in the sense that one work can have both) but in China they somehow became “alternative” or mutually exclusive. So, as he put it, perhaps something has been lost in translation.

Whatever the origins of the issue may be, the proposed introduction of a new audiovisual work is unlikely to help much unless the 2020 draft amendment to the copyright law changes or the implementing regulations provide some guidance. Although audiovisual works are set to replace cinematographic works under the current draft, no definition of audiovisual works is provided and the lesser category of video recordings is to remain. Implementing regulations from prior drafts indicate that originality, as presently conceived, will continue as the decisive criterion. The stranglehold of originality continues.