| With the advent of the era of converged media,the state has successively introduced a series of favorable policies to promote the development of the sports event industry from the central government to the local government to jointly promote the prosperity of the sports event live broadcast market in China.Under the Internet environment,with the popularization of various advanced technologies and their application in the field of sports live broadcasting,sports fans enjoy the cultural and entertainment experience brought by "Internet+sports live broadcasting",and the vast network platforms enjoy the huge economic benefits brought by the sports live broadcasting market.At the same time,the online piracy of sports events and inadequate legal protection have caused serious damage to the healthy and orderly development of the sports industry.Online piracy of live sports events frequently occurs and becomes more and more severe,which causes economic losses to the right holders.The copyright interests of live sports pictures are huge.Driven by the interests,some network companies illegally broadcast live sports pictures in the form of stolen broadcast links,live shows,P2P software,etc.to make money for illegal interests.At the same time,the immediacy and technical concealment of live sports pictures cause great difficulties to the rights protection of the relevant rights holdersIn sharp contrast,there are many deficiencies and even serious loopholes in the regulation and protection of the live broadcast pictures of sports events in China’s legislation and judicial practice:On the one hand,there is a clear legal gap in the identification of the nature of the live broadcast picture of sports events under the current legal system of copyright in China,and there is a great controversy in the field of legal theory on this issue.Mainly around the controversy focus of the originality of live broadcasting pictures of sports events,it can be divided into "works theory","Video products theory" and "compilation works theory".On the other hand,qualitative uncertainty directly leads to many obstacles to the application of law.There are a few scholars think that through the "sports law",a special law for regulating the sports industry,to regulate the live broadcasting pictures of sports events.Some scholars think that article 2 of the "anti unfair competition law" should be the basis of the right of claim.Most scholars believe that the claim of the right holder to the live broadcast picture of sports events belongs to the category of private rights,and it is the best way to take the "copyright law" as the legal protection path.However,the copyright law also has some shortcomings in adjusting the infringement of online stolen broadcasting of live sports events.Including "the right of information network communication" can not regulate "non interactive" network theft infringement;"broadcasting right" does not include "direct cable broadcasting";the subject and scope of "broadcasting organization right" do not cover network communication.Therefore,there are some problems in the application of these property rights to regulate the infringement of the live broadcast of sports events.In addition,in the judicial trial,because there is no accurate legal provisions can be applied,and there is no more authoritative guidance case for reference.When the illegal phenomenon of infringing the rights and interests of the obligee such as live broadcast of sports events is emerging in endlessly,the courts all over the country give totally different judgment results for the same type of cases,which violates the basic judicial rule of "same case and same judgment".For example,the courts of the first and second instance of the "Phoenix Network Broadcasting Rights Disputes Case"gave completely different trial results.At present,this case is under retrial,leading to some cases have to be "suspended".In the face of such a situation in the sports live broadcast market,the relevant right holders of the sports live broadcast industry urgently require "the copyright law" to specifically stipulate and comprehensively protect the live broadcast images of sports events,so as to safeguard their legitimate interests and purify the development environment of the sports industry.Through a detailed study of the domestic academic theory and judicial practice.And through the comparative analysis method,the paper analyzes and draws lessons from the protection methods of the live broadcasting pictures of sports events in the European Union,Britain,the United States,Germany and Japan,and demonstrates on the basis of the actual situation in China.On the one hand,the copyright of the live broadcast of sports events is consistent with the essence of China’s copyright law,which is in line with the principle of balance of interests,protecting the interests of the rights holders,and not affecting the public’s access to information and subsequent creators creation.On the other hand,the live broadcast of sports events can be recorded,transmitted and fixed on the carrier almost at the same time,which is possible to be fixed on a certain medium,so it fully meets the requirements of the fixity of the works In addition,no matter the copyright law,the regulations on the implementation of the copyright law,or relevant laws and regulations,judicial interpretation do not stipulate the key issue of determining the nature of the live broadcasting pictures of sports events--the originality standard,which leaves a space for interpretation.First of all,the recording process of sports event pictures is similar to that of movies.The recorder needs to arrange and edit the pictures collected by dozens of cameras with originality,and use montage’s film creation method,and add technical animation effect picture,commentary,interview,subtitle and other contents.In the end,the sports programs presented are story,artistic and even dramatic.Secondly,the originality of the standard of distinction between film works and video products stipulated by the law of our country can be understood that legislators do not have higher requirements for film works than ordinary works.It only requires that the intellectual achievements conform to the originality of ordinary works to obtain copyright protection,and other works that cannot meet the requirements are video products.According to this method of interpretation,there is no obstacle to the copyright of live broadcasting pictures of sports events.It is difficult to identify the originality standard,and it is also difficult to set specific judgment standards by law.China can learn from the practice of the United States and other countries,cancel the differential protection between film works and video products,and stipulate a unified "audio-visual works",so as to solve the problem of vague standards of originality identification.As for the choice of the way to protect the live broadcasting pictures of sports events,we can draw lessons from the European Union Law and Article 8 of "the Copyright Treaty of the World Intellectual Property Organization".Integrate "broadcasting right" and "information network communication right" as "the right to communicate to the public",expand the scope of adjustment,cover non interactive communication and cable communication,and reserve space for the emergence of new forms of communication in the future.Before the revision of copyright law is completed,the Supreme Court can issue guidance cases to explain the existing judicial problems.Including the nature of live broadcasting pictures of sports events is in line with the requirements of film works,and the copyright law "Pocket clause" is applicable to protect them,as well as the unified compensation standard for network infringement.To unify the judicial standards of court decisions and improve the legal protection of live broadcasting pictures of sports events.Finally,before the completion of the legislative and judicial work,the judge should try the case by expanding the legal loopholes of interpretation to better protect the interests of the obligee. |
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