| Looking around the whole world,whether the world's influential Olympic Games,the World Cup or some influential domestic sports events,such as the United States "Super Bowl",the Premier League,the Italian League,the Chinese Super League,the sale of broadcasting rights is in full swing,and the price of which tends to surge above one wave.Meanwhile,with the temptation of huge economic interests,a large number of infringements of sports broadcasting rights continue to appear.The number of which is so astonishing that it undermines the normal operation of the sports broadcasting industry chain.In the face of such a large number of infringements,the courts in China are also actively responding.However,because the right to broadcast sports events is not a legal right,there is no clear legal rules as a basis,which leading to the phenomenon of "different judgments in the same case" in judicial practice.As we all know,theory originates from practice.The commercial practice of sports broadcasting transaction right and the judicial practice of sports broadcast right inevitably arouse the attention of the theoretical circles.In recent years,the academic discussion on the legal protection of sports broadcasting right has become a hot topic,but the theoretical controversy is also obvious.Based on this,it is undoubtedly of distinct practical and theoretical significance to study and discuss the basic legal issues in the process of transforming the right to broadcast sports events from due rights to legal rights.This paper mainly adopts the methods of documentary,historical,comparative,interdisciplinary,normative and case-study.What's more,according to the theory of right generation,right value,right attribute and right confirmation,this paper completes the legal and theoretical proof of the legalization of sports broadcasting rights based on the analysis of the theoretical and empirical data.Besides the two parts of the introduction and the conclusion,the deficiency and the prospect,the main body of this article consists of four parts:The first part is the theory of right generation:the generating mechanism of broadcasting rights in sports events.As a factual right objectively existing in sports broadcast industry at home and abroad,sports broadcasting right should be investigated from subjective and objective aspects to confirm whether it is a due right to be transformed into legal rights.The objective aspect of broadcasting right in sports events is mainly reflected in two aspects:one is to clarify the social material and cultural conditions of broadcasting right in sports events by investigating its background;the other is to prove that broadcasting right in sports events has been in the historical process of sports commercialization by investigating the formation and development of broadcasting right in sports events and it is gradually formed by repeated practice and then accepted by society.The subjective aspect of the right to broadcast sports events is mainly to investigate the legitimacy of the existence of the right to broadcast sports events.This chapter aims to answer the feasibility of legalization of broadcasting rights in sports events through the above arguments.The second part is the theory of right value:the functional analysis and value orientation of broadcasting rights in sports events.As a due right to be legalized,it is necessary to discuss it from the angle of legal function and legal value,sort out the beneficial functions and effectiveness of the legalized sports broadcasting right itself to the society.And it is also necessary to clarify the body through the elaboration of these functions in practice and find out the legal value orientation of the main need that the broadcasting right in sports events meets.From the perspective of legal function,if the right to broadcast sports events is legalized,then it will have the following three basic functions:power confirmation function,incentive function and cultural function.Sports broadcasting rights have multiple value orientations,and it can be positioned at least through three basic legal values:efficiency,interest and order.Through the above arguments,this chapter aims to answer the necessity of legalizing the broadcasting rights in sports events.The third part is the theory of right attribute:the copyright law attribute of broadcasting right in sports events.Among the constitute works in the difficult and beautiful item groups,the dancing and acrobatic sports events belong to the dancing and acrobatic works in the Copyright Law of China respectively.Athletes perform their works in difficult and beautiful events.While in other sports events which are difficult to identify as works,athletes perform non-works.It is in this sense that the legal attribute of the right of live broadcast in sports events is the right of performers in sports events.The organizers of sports events use this right because they contribute a lot throughout holding the events.While,the interests of athletes can be coordinated through contracts with the organizers in sports events.For the producers of sports events,the group sports events in some fighting against ball events of the same game are their creative objects.For program producers in sports events,the "special" antagonism of the same-court antagonistic ball event group has brought enormous space,to create and play,which should be attributed to the types of film and television works in the current Copyright Law of our country.However,under the current Copyright Law of our country,the provisions on film and television works and video products can no lon ger meet the needs of copyright protection of related categories of works,and it even increases the difficulty of legislation and law enforcement.From the perspective of international conventions and copyright legislation in various countries,it is the trend that "audio-visual works"has taken the place of "film works and works created by similar methods of film production".Audio-visual works are more inclusive and consistent with current and future legislative trends.The program of the same ball event and other sports events can be classified as audio-visual works,so the legal attribute of the right of live broadcast of sports events can be defined as the copyright of audio-visual works.The fourth part is affirmation right:legal confirmation of broadcasting rights in sports events.By reviewing the legal confirmation system of broadcasting rights in sports events in various countries,it can be found that the legal confirmation of broadcasting rights mainly manifests in two forms:one is to confirm the legal protection of broadcasting rights in sports events through precedents;the other is to stipulate broadcasting rights in sports events in statutory laws such as Copyright Law or Sports Law.The relevant laws and regulations are aim to achieve the legal recognition of the right to broadcast sports events.In China,the legal confirmation path of the right to broadcast sports events should be in staged and steps.Specifically speaking,it can be roughly divided into three stages:short-term,medium-term and long-term.Correspondingly,it is the administrative path,judicial path and legislative path of the legal confirmation of the right to broadcast sports events.The ultimate goal of the legalization of the right to broadcast sports events is to form the legal protection of the right to broadcast sports events gradually,to take the Copyright Law as the core,the provisions of the Sports Law on the right to broadcast sports events and the Regulations on the Protection of the right to broadcast sports events as wings,and what's more,to take the Anti-Unfair Competition as a supplement which is suitable for China's national conditions. |
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