| The precondition of copyright protection is to judge whether there is any copyright works. How to judge the audiovisual works under the copyright law is still a contentious issue in the field of law.With the development of technology and content production, the quality and artistic level of live broadcasting programs has achieved such significant progress that the originality of the live broadcasting programs should be evaluated independently. However, the Chinese Copyright Law does not define clearly about the originality of ‘cinematographic works', and yet set strict terms as ‘be created in analogous shooting cinematographic works' in the definition of ‘cinematographic works'. As a result the copyrightability of live broadcasting programs is in dispute, and it even leads to such a chaos that the same live broadcasting program received different judgements under different courts. It is worth noting that the lack of copyright protection has undermined the production and the investment on live broadcasting programs.The disputes on the copyright protection of live broadcasting programs lie in following reasons: Firstly, it is a complex issue with several aspects need to be defined clearly, such as the definition of audiovisual works, the criteria of originality, the ownership of the rights, the balance mechanism of the interests, etc. Secondly, few legal experts fully understand the detailed operation of the media industry, namely the production flow, the features of creativity and expression, the intellectual and monetary investment of live broadcasting programs. Therefore, it is necessary to explore the challenges facing the copyright protection of live broadcasting programs with the integrated methods of case-study and theoretical analysis. If at the end, China's lawmakers and law enforcement organizations take into account of the findings of the thesis and strengthen the protection of live broadcasting programs, the producers and investors will be greatly encouraged and the related native media and cultural industry will benefit as a whole.The thesis primarily studies the five issues as following: Firstly, the definition of audiovisual works; secondly, the criteria of the originality of audiovisual works; thirdly, the analysis of the copyrightability of the live broadcasting program; fourthly, the ownership of the copyright of the live broadcasting program; fifthly, the perfection of the Copyright Law for the purpose of the protection of the copyright of the live broadcasting program. Among the five parts, the former two look into the systematic defects of China's copyright law and its theoretical foundation, while the third and fourth parts exams the prompt challenges in current law practice. Accordingly, the thesis provides a new theoretical perspective on the former two issues, and examines a few influential cases closely on the third and fourth parts. After the theoretical research and case study, the final part presents on how to amend the current institution of copyright law, which is the ultimate objective of this thesis. While examing these five issues, the thesis integrates the originality theory and the practice of film and TV production. The method is unique among Chinese academic area.Regarding the definition of Audiovisual Works, the thesisargues that, the Chinese Copyright Law defining ‘cinematographic works' as ‘be created in analogous shooting cinematographic works', narrows the scope of protection. At the same time most of the other countries have used the term ‘audiovisual works' instead of ‘cinematographic works' for the purpose of widen the scope of protection. Furthermore, most countries adopted the form of expression instead of ‘shooting method' as the constitutive requirement for the concept of audiovisual works. In this way, those audiovisual programs with high originality and with the same form of expression as film could be well protected by copyright law, regardless of whether their shoot method is film alike or not. Meanwhile, the thesis argues that the amendment of China's Copyright Law of the Third Time Revision has a flaw in using the term ‘audiovisual works' to substitute both ‘cinematographic works' and ‘video recordings'. Critically the originality criteria of the ‘audiovisual works' needs to be clearly interpreted while abandoning the concepts ‘cinematographic works' and ‘video recordings' all at once. Otherwise, the judges would be confused by the scope of ‘audiovisual works'. The risk is that, without a clear interpretation, the scope of protection of ‘audiovisual works' could be either too wide or too narrow.In terms of the originality criteria of audiovisual works, firstly, the thesis argues against agnosticism. No matter how complicated and intertwined the subject is, there are means to evaluate. After studying the copyright law of various countries, the thesis argues that, the originality could be evaluated in three dimensions: independent production, intellectual creation, and the minimum innovation. Among them, the minimum innovation is the most essential element. Accordingly how to define the minimum innovation of the audiovisual works is the core issue of the thesis. In addition, in court, the judge shall also define the originality of works by three referential elements, which are the author's intention of creation, thepersonality expression, and the investment of labor force and capital. Secondly, considering different expressions and features of creation across the spectrum of copyright works, the originality should be evaluated in different categories. For that purpose, it needs to integrate the copyright theory of originality and the refined patterns of artificial and scientific production to set up the originality criteria of various works. Thirdly, based on ‘The Analysis Technique on Innovative Factor of Originality', a new methodology of Wang Kun, the thesis concludes the criteria of the originality of audiovisual works as the two essential factors: ‘the language of camera” and “the art of audiovisual connection”. Moreover, the thesis sets up and elaborates a new evaluation system of the originality of audiovisual works, consisted of three layers: the superficial layer, the medium layer, and the deep layer. Among them, the medium layer plays a pivotal role in determining the originality of audiovisual works.Regarding the copyrightability of live broadcasting programs, the thesis argues that, firstly, the complexity of the terms of live broadcast causes misunderstandingon the object of copyright protection among some legal experts. The thesis argues that, the object of copyright protection is the audiovisual programs of live broadcasting and is not the activity or event of live broadcasting. To be more specific, the object of protection is the audiovisual expression of live broadcasting programs. Furthermore, the substance of the protection is the protection of the creative work and the intellectual achievement of live broadcasting program production. Ultimately, the final purpose is to protect the substance of the expression by means of the protection of the form of expression. Secondly, the thesis examines several cases to illustrate the originality of livesports programs. The thesis finds out that, by means of the high quality and in some cases even theatricalized production, live sports programs are not only the product of personalized and creative work by the production team, but also carries entertainment and artistic values which conveysthe spirit and emotional appeal of sports. The originality of live sports programs could be evaluated in terms of ‘the language of camera', such as the layout of the multi-camera positions, the art of shooting scale, etc., or ‘the art of audiovisual connection', such as the frequency and rhythm of cutting, the use of ‘montage', the variation of time sequence and spatial layout, the narrative expression, etc.. To elaborate on the argument, two typical clips of live sports program, the ‘Messi's free-kick' in 2014 World Cup and the ‘Zidane's Red card' in 2006 World Cup are illustrated in details. In the context of the copyrightability of live sports program, the thesis analyzes the disputes around ‘broadcast rights' and points out that the nature of ‘broadcast rights' is the ‘rights to the public' under copyright law. Thirdly, the thesis also examines the originality of live variety shows, typically CCTV's high profile ‘Chinese New Year Gala'. The thesis argues that, besides techniques and features of the originality similar to live sports programs, the originality of live variety shows should be further evaluated in its unique stage design and the directing of the performance. Particularly, the thesis illustrates the originality of the two cases from ‘Chinese New Year Gala', which are ‘N't Short of Cash' in 2009 and ‘Blue and White Porcelain' in 2015. The thesis argues that, with the two cases showing high level originality in both dimensions of ‘the language of camera' and ‘the art of audiovisual connection', CCTV's ‘Chinese New Year Gala' ought to be judged as ‘cinematographic works' under copyright law.Regarding the ownership of live broadcasting programs, firstly, the thesis compares the author's right law and copyright law in different countries, and comes to the conclusion that, despite different law systems, their regulations on the ownership of audiovisual works increasingly become convergent. Both of them assign the ownership of audiovisual works to the producers – the investors- by law, to enhance high efficient usage of the audiovisual works as well as the development of the industry. Secondly, no matter embedded mainly from the author's right law, the Chinese Copyright Law formulates the ownership of ‘cinematographic works' similar to the copyright law system, such as the Copyright Act of the US or the UK. Some scholars(for example, Mr. Qu Sanqiang) consider that, the regulation of the ownership of cinematographic works under China's Copyright Law is in line with the copyright law in the world. However, other scholars(for example, Mr. Wang Qian) concern about the problems raised in the regulation, for example, ‘theequivocation of the legal relationship between the original works and the cinematographic works adapted from the original works', ‘there is still no rules on revenue sharing for the rights owner of the music of the film based upon screenings of the film', etc.. Besides, there are still disputes with regard to the ownership of ‘cinematographic works', such as how to regulate the legal relationship between the works in the past and the cinematographic works, and how to deal with the rights of the independent works contained in a film. Thirdly, notwithstanding arguments on the ownership of audiovisual works under the copyright law, the copyrightability of live broadcasting program shall not be rejected as a result. The thesis argues that, when the originality of a live broadcasting program is higher than the medium level originality of audiovisual works, it ought to be judged as the‘cinematographic works' under the current copyright law. Meanwhile there is no substantial difference between the ownership of live broadcasting program works and that of ‘cinematographic works'. Therefore the ownership regulation of live broadcasting program works should be applied by legal analogy procedure.Finally, regarding the improvement of the copyright law, firstly, the thesis stresses the importance and feasibility of copyright protection on live broadcasting program. Secondly, the thesis argues that, within the framework of the Copyright Law, the method of interpretation of law is applicable to improve the current law. The thesis puts forward the proposals about the interpretation of the regulations of the Copyright Law for the improvement of the copyright protection of live broadcasting programs, including the interpretation of the related regulations and a proposed bill as an answer to the copyright issues of live broadcasting program in justice. Upon the opportunity of the most significant revision of Chinese Copyright Law since history, the thesis also puts forth proposals to perfect the related regulations under the Revised Edition of the Copyright Law.The purpose of the study is to promote the perfection of the copyright law to better protect the copyright of live broadcasting programs, thus encouraging program production and facilitating development of the industry. This is highly relevant in the context of fierce international competition. The significance of the thesis lies in two fronts. The first is the comprehensive research on the definition and originality of audiovisual works, as well as the copyrightability and ownership of live broadcasting programs. Regarding the confusion and chaos in the field of justice, the thesis put forth detailed proposals for legislators to consider for perfection of the existing Chinese Copyright Law and its Revised Edition. The second is the unique methodology of integrating originality theory with the knowledge and real practice of film and TV production. By doing this, the thesis set up a multi-layer mechanism to evaluate the originality of live broadcasting programs and hence put them under protection of the copyright law. The author wishes to contribute this method to the study of the originality of various types of copyright works and starts setting up criteria to evaluate the originality of copyright works, giving a new perspective to the perfection of copyright law. |
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