Viewpoint | Whether "audio-visual works" under the new "Copyright Law" can end the dispute between live broadcast works and products of the event -- three typical cases to see the issue of intellectual property rights of live broadcast of the event.

The new "Copyright Law" will be implemented on June 1, 2021. This revision has been sharpened for ten years. The biggest highlight is the deletion of "works created by methods similar to film production", which is usually called "electric works". "Audiovisual works" was born, but no definition was created for audiovisual works, but the new "Copyright Law" The general definition of "works" will provide a legal basis for the protection of intellectual property rights through "audiovisual works" for new types of works.

1. audio-visual works were born, greatly expanding the extension of works.

The new Copyright Law gives up the attitude of "statutory type of work" to some extent, and gives an open definition to the type of work, that is, a work is defined as "the work referred to in this Law, which refers to the intellectual achievements in the field of literature, art and science that are original and can be expressed in a certain form", however, after listing eight types of works, they are regarded as "other intellectual achievements conforming to the characteristics of the works." This gives "audio-visual works" a broad space to exist, and it is conceivable that a large number of right holders will classify their works as "audio-visual works" for protection.

The predecessor of "audio-visual works" is the current regulations for the implementation of the copyright law. "Film works and works created by similar methods of film production" refer to works produced on a certain medium, composed of a series of pictures with or without sound, and screened or disseminated by appropriate devices ". According to the current regulations, it is emphasized that cinematographic works and similar electrical works should meet the "production" (fixed) requirements. However, there are many ways to show different types of works in real life. For example, in the network live broadcast industry, it is uploaded to the network directly through mobile phone terminals in real time, and its behavior may only be to turn on the camera. Another example is the diversified performance of music fountains, but it is difficult to protect through electric works because there is no fixed feature of filming. Only the side of "art works" can be wiped, such as the copyright dispute case of music fountain in the lake management office in Hangzhou West Lake scenic spot, the court found that the object involved in the case is a dynamic three-dimensional modeling expression composed of lighting, color, music, water type and other elements, and its beautiful jet effect has aesthetic significance and conforms to the constituent elements of art works." The judgment creatively raised the issue of "dynamic works of art". In fact, it is more appropriate that the musical fountain should be classified as "audio-visual works.

The new "Copyright Law" deletes the provisions of "electric works", and directly names it "audio-visual works", which greatly expands the scope of protection of works and is no longer limited to the consideration of the characteristics of "electric works. So does the live broadcast of a sports event constitute a work? If it is a work, further consideration should be given to whether it can constitute an audiovisual work? And how should it be protected?

The live broadcast of 2. events is a dispute over whether it is a work or a product.

This article discusses the scope of sports events not only refers to daily sports events, but also includes e-sports. ① There are different opinions on the rights of sports events:

One argument is that if a sports event program is a work, its right holder belongs to the copyright owner and enjoys the 17 rights listed in the new Copyright Law; the other is that if a sports event is a video product, its right holder belongs to neighboring rights. The right holder, the video producer does not enjoy the copyright owner's broadcasting rights, screening rights, etc.; others believe that because the live broadcast of sports events is not a work itself, it cannot constitute a video product or work, the copyright law should not be protected, only according to the anti-unfair competition law to protect the rights of the broadcast of the event.

Of course, the live broadcast of the event can be protected through the copyright law, but whether the live broadcast of the event is a work or a product is the focus of controversy, and the root of the controversy is the issue of originality, and further, whether the originality is high or low.

(I) is a view that although the live broadcast of sports events has some originality, but because it can not control the process of the game to limit its originality, it is difficult to compare with the originality of the class of electrical works, can not apply the "class of electrical works" provisions, should be classified as audio and video products.

We know that the live broadcast of the competition is an objective reflection of the competition, which is different from the performance creation of the film based on the script, director's arrangement and character plot. That is to say, in the live broadcast of the event, the filmmaker is not in a dominant position but a bystander, which is essentially different from the expression of the film according to the will of the director or producer. There is not much room for originality in the live broadcast of the competition. At most, there may be problems in the prediction of live broadcast experience. For the prediction of setting up a camera, on-site scheduling, emergency capture, slow play, comments, etc. Such creation is subject to the objective process of the competition and cannot be interfered. Therefore, it is difficult to achieve the height required for movie works and works created in a method similar to film production. It should not be recognized as "electrical works" and can only be protected in accordance with audio and video recordings.

For example, in the case of the "Deba Women's Football Competition", during the Beijing 2008 Olympic Games, CCTV issued a "copyright declaration" to CCTV International Network Co., Ltd. (hereinafter referred to as CCTV Company). CCTV is authorized to exercise the information network dissemination right of the opening ceremony, closing ceremony, Beijing 2008 Olympic Games and all events related to the Olympic Games. The home page of www.21cn.com website operated by Century Dragon Information Network Co., Ltd. (hereinafter referred to as Century Dragon Company) provides VGO software download and indicates that the publisher of VGO software is Century Dragon Company. The functions of the software include P2P video on demand, P2P video live broadcast, P2P download function, etc. Century dragon company through its own website broadcast CCTV company "Deba women's football match".

The court ruled that: ② the "Deba women's football match" advocated by CCTV is a TV program watched by the majority of the audience in front of the screen, which is different from the Deba women's football match held on the scene of the match. There are at least the following differences:(1) the competition process of the TV program shows part of the picture centered on the football of the sport, but not the whole game scene;(2) Information that cannot be obtained at the game site will appear in TV programs: such as close-up pictures and name introductions of individual players, CCTV host's commentary, close-up pictures of sideline coaches, etc.;(3) In TV programs, during the intermission of the game, the CCTV host's comments will appear. Therefore, the TV program "Deba Football match" has a certain degree of originality, which is mainly reflected in the shooting and interpretation of the live game, including the setting of the seat, the selection of the lens, the participation of the host, the commentary and the director. However, in terms of the control of the game process, the choice of shooting content, the arrangement of commentary content, etc., the filmmakers can make very limited choices and expressions according to their will, and the filmmakers are not in a dominant position. In terms of originality, it has not yet reached the height required by film works and works created in a similar way to film production. Therefore, the "Deba Football match" produced by CCTV is not enough to constitute a film work or a work created in a similar way to a film.

This view obviously does not deny the originality of the live broadcast of sports events itself, but when it is classified as "electric works", it is found that it is obviously different from the active intervention of electric works and even the arrangement of the plot process. The live broadcast of the event is passive, which mainly presents the whole competition process passively, rather than intervening in the competition to manipulate the results of the competition. The court found that there was a major conflict in categorizing it as a "similar electrical work", that is, although the live broadcast of the event was original, it was not enough to reach the height of the creation of similar electrical works, could not be counted as a similar or closest work, and should not be protected by this type of work. However, this right cannot be protected, so it can only be protected by including it in audio and video recordings.

(II), the opposite view holds that sports events belong to works rather than products. Whether a work constitutes a work does not depend on the level of originality, but on the existence of originality. As long as there is originality, it should be classified as "electric works" to be protected.

For whether the live broadcast of the event is a work or a product, the originality should be considered instead of the originality. The entry point is in line with the definition of the work.

The typical case is Sina Company v. Phoenix Network, which is one of the top ten copyright cases released by the International Association for the Protection of Intellectual Property Rights in 2020. ③ In 2013, Sina Company found that Phoenix Network publicly disseminated the live broadcast program of the Chinese Super League event, infringing on relevant rights and interests, and filed a lawsuit. The case went through a complex process in which the defendant in the first instance found that the work was infringing, the second instance denied that the work did not constitute infringement, and the retrial revoked the second instance to maintain the first instance, which was finally determined to be the work.

The court held that the criteria for the classification of film works and video products should be the presence of originality, not the level of originality. In terms of expressing originality, it is different from the mechanical recording of objective facts, and there is significant creativity in the filming process of live broadcast programs of Chinese Super League events. The live broadcast program of the Chinese Super League competition involves the competition site, the relay vehicle, the relay center and other links, and integrates the production team including the venue director, camera, chief director, switching director, slow motion director, slow motion operator, subtitle director, subtitle operator, etc. The selection and arrangement of the materials fully reflect the original intellectual input of the production team and meet the "originality requirements" of the work ". At the same time, the creation, transmission and storage media of the live broadcast programs of the Chinese Super League tend to be diversified, which has met the attachment of program content and carrier and the condition of "being filmed on a certain medium". The programs involved in the event constitute the film works protected by China's copyright law.

The distinction between works and products should be based on whether there is "originality". The level of originality is not the difference between works and products. Therefore, as long as there is "originality", it should be classified into the type of works, instead of comparing the level of originality of "electrical works. In fact, the originality of different film works and their comparison with electric works is also different. In this regard, it is too strict to require a high degree of originality in the live broadcast of the event. However, the concept of "electric works" in the current Copyright Law will always make people go into the depths of the flower, and there will be a fixed thinking of comparing with the height of the creation of film works, resulting in different judgments.

(III) Electronic Sports Game Live Work and Product Dispute

Game live broadcast is a new industry with the progress of science and technology. Under the superposition of Internet traffic effect and fan economic effect, it has produced huge market interests. For game operators, most games are free games, while the downstream game live broadcast industry makes a lot of money, and the heart is hard to calm, which inevitably leads to the dispute of benefit distribution. However, it is undeniable that the game live broadcast industry also plays a role in promoting the promotion and dissemination of games. The two parties can actually have a benign interaction, but in the absence of a cooperative relationship between the two parties, neither party will agree to the other party's share. In this case, can only let the two sides of the infringement boundaries. Operators in the live broadcast industry believe that the operation and interactive behavior of live broadcast personnel is the original content, and the game itself does not constitute a similar electrical work. The game operator believes that the continuous picture of the game constitutes a work and should be protected.

④ The typical case is the case of "Netease" and "YY Live" and "Dream Journey to the West" judged by the Guangdong Higher People's Court, which finally confirmed the infringement and established a compensation of Netease 20 million yuan. Netease operates the "Fantasy Westward Journey" online game, and YY earns a large number of fan rewards through the live broadcast of the game by the anchor. The two sides litigated the dispute. Since it is a copyright dispute, it should first determine whether the game continuous dynamic picture constitutes a work?

First of all, it is necessary to determine whether the continuous dynamic picture of the game constitutes a work.

The game live broadcast operator defends that the game dynamic picture does not constitute a work, and the game live broadcast process in which the anchor participates is the original process. The different presentation angles and contents of each operator of the game dynamic picture are also inconsistent. The continuous dynamic picture of the game does not meet the requirements of "originality" and "reproducibility", does not constitute a work, and should not be protected by copyright law. The game anchor has invested great intellectual labor in the live broadcast process, and the live game picture constitutes a new work with originality. The game developer has no creative intention for the live game picture, the game anchor, not the game developer, should be identified as the right holder of the new work.

The game operator believes that the anchor only participates in the game process and does not create works. The continuous dynamic picture of the game is a collection or whole of a series of game pictures with or without sound presented on the terminal screen when the game is running, which is different from static and single game picture art works. It is not a work of art or music in itself, but a "comprehensive" work that combines various forms of works. How to classify this kind of work? We need to consider which type of work it belongs?

Secondly, it is necessary to consider whether the continuous dynamic picture of the game involved constitutes a class of electrical works.

The game live broadcast company advocates that each time it starts to enter the game, it is the result of the active operation of many game players, which is random or uncertain. The "operation" process does not meet the requirements of "filming" on a certain medium, and does not belong to the class of electric works. Should not be protected by copyright law. However, the game is essentially a computer software program that can be run. According to the operation of the game user, various text fragments, art pictures, music sound effects, skill animation and other elements in the game material resource library are called for organic combination, and the comprehensive audio-visual expression that can be perceived is dynamically presented on the terminal screen. It is original and can be copied when it belongs to the work. So, does it constitute a "class of electric works?

The court held that the various texts, sounds, images, animations and other materials that constitute the continuous dynamic pictures of the game involved were created by the game developer and stored in the game resource library before being called, that is, the game materials themselves have been fixed on a certain medium. On the other hand, "filming" is a confirmation of the usual means of creation of a work, not a restriction on a cinematographic work or a similar electrical work. The creative method of "filming" is also in line with people's traditional cognition of movies. With the development of industrial technology, many movies have been separated from cameras. All or most of the lenses are drawn, edited and synthesized in computers. The creative methods of movie works or similar electric works have developed variously with the progress of technology.

Article 2, paragraph 1, of the Berne Convention for the Protection of Literary and Artistic Works states that literary and artistic works include "works expressed by a method similar to cinematography" and that the protection of electrical works focuses on the content of creation, not the method of completion of production. As long as some kind of original expression that can be copied is expressed in a similar way to a film and meets the requirements of "consisting of a series of pictures with or without sound", it can be regarded as an electrical work. The verdict broke through the restrictions of the means of filming, the game live screen into the category of electrical works.

Thirdly, the audio-visual picture playing process of similar electric works is "one-way output and passive acceptance", while most games are the result of "interactive operation and instant feedback" to many players. There is a very different "interaction" between the two, and it is difficult to bridge the huge difference if they are classified into the same kind.

The court held that interactive differences are not the characteristics of classified electrical works. Although the interactive operations of game players may lead to slight differences in game pictures during each game, these differences do not exceed the preset scope of the game at the level of picture expression, nor do they change the core characteristics of the "continuous dynamic picture" of the overall picture of the game involved.

As a result, the court found that the continuous picture of the game constitutes an electrical work and should be protected by copyright law. But what rights of copyright are infringed by the live broadcast of the game? The court did not specify but applied the legal provisions of "other rights that should be enjoyed by the copyright owner", which could not be classified as a clear "famous" right. This issue has entered another controversial topic and is no longer discussed in this article.

However, the judgment is debatable that it is difficult to produce new original expressions or constitute new works. The process of playing games is not a creation in the sense of copyright law, and it is difficult to form an original expression to form a new work. In fact, in the process of special operation skills and communication and interaction of each game anchor, the works formed by the live broadcast of the game can be repeatedly viewed with certain originality and should be recognized as independent works. However, the exercise of the right to the work shall not damage the copyright of the game owner.

Whether the new "copyright law" of 3. "audio-visual works" can end the dispute

The copyright law is revised every ten years, but it can not solve the lag of legislation. With the development of science and technology, the types of legal works must not include all kinds of new types of works in reality. The provisions of the law on the work should be open to the state, so as not to rest on its laurels and affect the creation of copyright. The law cannot cover all types of works, nor can the right holder be required to create only the types of works specified by the law. If the type of work is legalized, it will lead to disputes in reality to apply the corresponding rules of the type of work closest to its characteristics. However, it is conceivable that there are some very different characteristics among a large number of works, which are difficult to classify only according to typed works. For example, the current copyright law may split music fountains and fireworks performances into music works, art works, patented works, computer software, etc. To protect rights from different angles, but no matter what angle, it loses the specific meaning of a complete work and can only partially protect rights.

Just as the aforementioned disputes over live broadcasting of sports events will continue to fall into the dispute over "works" or "products". The rights defenders advocate similar "electric works", and the defenders will always find out the differences between them and "electric works", thus holding their own ends and the disputes will continue. The new "Copyright Law" quickly cuts through the mess, directly abolishing "film works and electric works" and changing them into "audio-visual works". Sports events are based on their unique positions, pre-match filming arrangements, and key shots of the event are switched with explanations and comments, which are in line with the "originality" of the works. Its live webcast also shows that it can be "expressed in a certain form" and conforms to the definition of the works. Therefore, it can be classified as "audio-visual works" without referring to similar types of works for protection, and its rights are thus expanded to 17 powers, with "broadcasting rights ⑤, projection rights, information network dissemination rights" and so on sufficient to protect their rights. Whether audio-visual works will be defined by amending the Regulations on the Implementation of the Copyright Law is still unknown, but it is extremely difficult to define a suitable one. For example, whether audio-visual works must be audio-visual combined works, or whether individual visual or individual auditory works can also be composed, we will wait and see.

Comments:

① On December 16, 2020, the 39th General Assembly of the Asian Olympic Council announced that e-sports was approved to be included in the Hangzhou Asian Games competition.

② CCTV International Network Co., Ltd. v. Century Dragon Information Network Co., Ltd. (dispute over infringement of the right of information network dissemination)

③ The International Association for the Protection of Intellectual Property Rights released the fourth of the top ten hot copyright cases in 2020: copyright infringement and unfair competition case between Beijing Sina Internet Information Service Co., Ltd. and Beijing Tianying Kyushu Network Technology Co., Ltd.

④ Civil Judgment of Second Instance over Copyright Infringement and Unfair Competition Disputes between Guangzhou NetEase Computer System Co., Ltd. and Appellant Guangzhou Huado Network Technology Co., Ltd.

⑤ The concept of "broadcasting right" in the new "Copyright Law" has undergone major changes. "The broadcasting right is no longer wireless broadcasting, wired or wireless broadcasting" but-the right to publicly disseminate or retransmit works by wired or wireless means, and to disseminate broadcasted works to the public through loudspeakers or other similar tools that transmit symbols, sounds and images"