The online video platform pps.tv, operated by Shanghai Zhongyuan Network (PPS), was the former licensee for the live webcast of partial 2007-2008 NBA games in mainland China. As PPS continued broadcasting NBA games after the expiry of license, without a further permit, NBA Properties (NBAP), as the owner of intellectual property rights of NBA games, sued PPS for copyright infringement before Beijing No. 1 Intermediate Court.
This is a landmark case in China, recognising the copyrightability of live sports programmes and showing China’s determination to protect investment, innovation and creativity.
For decades, China courts have been denying the copyrightability of live sports programmes, and this view has been staunchly supported by some influential judges, popular scholars and senior officials in central government agencies. Denial of copyrightability has caused great difficulties in the sports broadcasting industry. Unauthorised broadcasting caused big problems for intellectual property (IP) owners as well as legitimate licensees such as Tencent and Suning, putting investments in the hundreds of millions of dollars at risk.
It has been a consensus in judicial practice that there are two conditions for “cinematographic work” under the Copyright Law – “originality” and “fixed on tangible medium”. However, controversies remain in the issues of the level of originality, and whether the fixation shall be stabilised. Judges denying the copyrightability of live sports programmes have held the opinion that “cinematographic work” requires a relatively high level of originality, and the whole video frames shall be stabilized on tangible medium.
The first-instance judgment of this case adopted this opinion, ruling that NBA live sports programmes were not copyrightable as “cinematographic work”, for lacking of originality, and failed to meet the “fixation” requirements.
NBAP retained the GEN legal team in the appeal. For difficult and challenging cases like this one, lawyers need more creative and impactful ideas. On the evidence side, GEN’s team invited a director to prepare a comparison between NBA programmes and famous Hollywood movies, to vividly present the creativity and complexity of NBA programmes.
GEN’s legal team also helped NBA and its partners to produce a documentary recording the entire process of creating a live NBA programme. This kind of evidence is rarely used in Chinese courts.
On the legal research side, GEN’s team conducted comprehensive legal research on law and precedents in China, Germany, the UK and US, as well as gleaning key opinions from Chinese IP law scholars, sports law scholars and influential judges.
Based on the comparison study, GEN lawyers generated a 70-page lawyer’s opinion, which was reviewed and adopted by the tribunal. On the lobbying side, GEN lawyers organised and participated in many seminars and called for a common view that live broadcasting should be protected under copyright law.
The 42-page final judgment absorbed the GEN team’s evidence and analysis, and finally recognised NBA live programmes as “cinematographic work”. The judgment: explained the originality of NBA live programmes; set up the standard of distinguishing cinematographic work and video recordings as “whether there is originality, instead of the level of originality”; and clarified that the “fixation” requirement was satisfied as the video frames were simultaneously fixed on a tangible medium, and “stabilized fixation” was not a must.
The judgment also matched the amendment of the Copyright Law by stating that the types of work under the Copyright Law shall not be limited to the examples listed in the law. This remarkable judgment has shown Chinese judges’ open-minded logic, and their willingness to closely consider the development of industry. The judgment is a strong message to show Chinese courts’ determination to protect IP owners, domestic and international.
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Steve Zhao is a partner at GEN Law Firm. He can be contacted on +86 10 6521 5902 or by email at firstname.lastname@example.org
Lily Dong is a senior associate at GEN Law Firm. She can be contacted on +86 10 6521 5913 or by email at email@example.com