Analysis On The Originality Of Sports Events Live Broadcastings And Type Of Work They Constitute

Represented by the case of Sina v.Ifeng,there have been a number of cases of copyright disputes over the live broadcast of sporting events under the Copyright Law of China.Do live sporting event images constitute copyrightable works ? If so,what type of work does it belong to? Various views have arisen among judges and jurists.From the legislative point of view,the Implementing Regulations of the Copyright Law do not specify the standard of originality required to constitute a work,which has led to the long-standing distinction between "works" and "products" in China as to whether the standard of originality to be adopted is "high level or low level"."or "existence or none existence".In judicial practice,the courts have applied different standards of originality and protection to a number of cases involving different events.In the context of the implementation of the revised Copyright Law,the issues relating to whether copyright or neighbouring rights can control the behavior of live streaming online have been resolved,and this article therefore summarizes two existing disputed copyright issues in relation to shooting of live sports event:1.what standard of originality should be used to define a "work" and a "product" ?2.If the originality of the broadcast is recognized as a work,what type of "audiovisual work" should be applied to protect the live broadcast of the sport event,and whether a underwriting clause of copyrightable works should be applied to protect the live broadcast in question.This article focuses on the solution to these two issues.Through a comparative approach,this article first examines the definition of the standard of originality in various countries around the world and concludes that the majority of the world has shown a trend towards a progressive objectification of the standard of originality.This article analyses the origins and development of originality in the common law system and find out that the common law system adopted a lower standard of originality for economic purposes when the copyright system was first established,and therefore did not exclude the protection of live sports events.Turning to civil law systems,this article selects the legislation and judicial practice of Germany and Japan were selected as representatives of civil law countries.In the case of Germany,although the relevant legislation was enacted out of a romantic notion of the derivation of the author’s personality,the provisions of the law do not exclude live sports events from constituting works if they meet the constitutive elements;at the same time,the location of the provisions of the law also shows that German legislation is aware of the difference between "continuous images" such as live sports events footages.In the case of Japan,the law also does not exclude live broadcasts of sporting events from constituting works if they meet the appropriate conditions,and two typical cases heard by Japanese courts have pointed out that the originality of live sporting images as sufficient to constitute a work.This article analyses the situation and argues that,in response to technological developments and economic needs,there is a trend towards an objective standard of originality in the judiciary-i.e.a distinction between works and productions based on the "existence or none existence" of originality.This has helped to maintain judicial modesty and to create more stable judicial boundaries.In recognizing that live sports footage is original and can constitute a work,it is also important to determine the type of work it is.The determination of the type of work determines the rules for the ultimate attribution of rights to the work.Within the framework of the current Copyright Law,the law gives various options."Audiovisual works" and "intellectual achievements that meet the characteristics of a work" can be the basis for their protection.However,by analyzing the characteristics of the works of live sporting events,this article argues that the investment,production and exploitation are more closely linked to the investor,and that under the special attribution rules for "other audiovisual" works provided for in the revised Copyright Law,in order to avoid confusion in the structure of rights,the scope of "cinematographic works" should be expanded to include "cinematographic works".In order to avoid confusion in the structure of rights,it should be protected as a cinematographic work by expanding the scope of "cinematographic works".This article also argues that the courts should be more cautious as to whether to apply the "intellectual output" protection of the subclause.Live sports footage is not new,nor does it involve the use of other rights to incentivize creativity,so there is no need for using a ’catch-all’ clause to prevent judicial confusion.