Professional Interpretation

Ⅰ. Statement of problem

With rapid growth of economy, the sports industry is booming and the enthusiasm of the public for sports events is also rising day by day. Meanwhile, the broadcast rights of all kinds of sports events have become the hot spot in the competitions among major video websites. However, the legal nature of the broadcasting rights of sports events purchased by major TV stations and websites is vague. And the lack of legislation leads to confusion in the judicial practice about the disputes over the broadcasting rights of sports events. The legal protection of sports broadcasting rights has become a hot topic in the field of intellectual property in recent years. But, there is little discussion about whether sports events themselves should be included in the category of copyright objects.

If the objects of legal protection are limited to sports programs only, then even if the authors can obtain copyright and exclude third parties from broadcasting the programs, there is no legal basis to prohibit other people from recording or producing other programs of the same sports events. Sports events are the cornerstone of sports broadcasting rights. Bypassing sports events to study sports broadcasting rights is not conducive to the legal construction of sports broadcasting rights. Only by defining the legal status of sports events can we effectively promote the steady development of sports industry and guarantee the legal order of social economy and cultural life.

Ⅱ. Domestic and foreign viewpoints discussion

1.China's legal provisions

Article 3 of Copyright Law of the People's Republic of China provides:“Works referred to in this Law shall include literature, art and natural science, social science, engineering and technical works created in the following forms: (1) Written works; (2) Oral works; (3) Musical, dramatic, opera, dance, acrobatic artistic works; (4) Art, architectural works; (5) Photographic works; (6) Film works and works created using methods similar to film making; (7) Graphic works and model works such as engineering design plan, product design plan, map, schematic diagram, etc; (8) Computer software; and (9) Any other works stipulated by laws and administrative regulations.” Sports events are not explicitly listed as works in Chinese law. So, what does a work mean? Article 2 of Implementation Regulations for the Copyright Law of the People’s Republic of China provides:“The term ‘works’ as stated in the Copyright Law shall include original works of literature, arts and sciences with intellectual results which can be reproduced in a tangible form.”

2.Foreign legal provisions

In the legislation of many countries, there is no regulation of sports events as works, and even some laws directly deny sports events as works.

According to Article 10 of the latest Copyright Law 2010 of Japan , works include novels, scripts, essays, speeches and other works of writing, music, dance, pantomime, paintings, prints, sculptures, and other works of art and architecture, maps or designs, charts, models and other graphic works, films, photographs, computer programs of an academic nature. Copyright law of Australian lists performances that are not protected, including "performances of sports." Article 2 of the German Copyright Act, as amended in 2011, states that works only refer to the intellectual creation of individuals, including linguistic works, musical works, mime works, works of fine arts and sketches of such works, photographic works and works created in a manner similar to photographic works, and graphical descriptions of a scientific or technical nature. The Cleanup, Description and Amendment Act of Copyright 2010 of the U.S. states that works protected by this Act refer to original works that are fixed in tangible forms now known or developed in the future and can be perceived, copied, or broadcast directly or with the aid of machinery and equipment.

It can be found that the legislation of Japan, the United States and Germany does not even stipulate that acrobatics belong to the works. If we want to find the basis of copyright law for sports events, we may have to find a breakthrough in the interpretation of "dance".

3.Academic viewpoints

Most scholars in the field of intellectual property law take a negative view on whether sports events can be the works described in the copyright law. But recently, some scholars have begun to support some sports events can be regarded as works of art and protected by copyright law. In sports competitions such as figure skating, artistic gymnastics and figure swimming, although the competitive techniques are universal, the choreography and music are obviously original. Athletes convey their literary or artistic ideas to the audience through their performances. Therefore, in order to be the carriers of these ideas, sports competitions should be regarded as the objects of copyright.

4.Attitude of domestic and foreign judicial precedents

Whether sports events belong to works, Chinese and foreign judicial precedents are mostly negative. The Shanghai No. 1 Intermediate People's Court held that "Sports events are objectively occurring, without prior design of the version, and the results are uncertain. They are unique and non-replicable, so they do not belong to the category of copyright objects. Sports events are not protected by Copyright Law of the People's Republic of China." The Second Circuit Court of the United States also held that "Sports events are different from movies, comedies and television programs. They have no script and are not duplicative, and that the information about such events is limited to public domain. So sports events are not protected by copyright law." The Federal Court of Canada also held that "Sports events cannot be considered as copyright law works."

Ⅲ.The possibility of sports events as the objects of copyright

1.Classification of sports events

Whether sports events can become works in copyright law is mainly focused on the originality of sports events. However, there are great differences in the originality of different types of sports events. According to the nature, sports events can be roughly divided into two categories: performance competitions and non-performance competitions.

(1)Performance competitions

The characteristic of performance competitions is that the competition process is similar to the performance in the field of art. The contents of competitions are highly appreciative, and they often arrange a series of actions, thus becoming a coherent whole routine. Such events are indeed original and replicable, including artistic gymnastics, synchronized swimming, figure skating and so on. The aforementioned sports events are very similar to the works of dance and acrobatics listed in the Copyright Law of the People's Republic of China. The only difference is that the stage of the above events is the process of sports events.

But just because sports events can only be presented in the courses of competitions and there are some competitive factors, they are simply be excluded from the scope of works which are protected by copyright law. This is not reasonable. There is no doubt that the nature of the above-mentioned sports events is original and replicable. Athletes have their own independent ideas and artistic expression in the process of competitions. Therefore, entries in the competitions are in accordance with the characteristics of copyright law, and should be included in the scope of protection. In this case, the organizers of sports events may obtain authorization from the copyright owners by contractual agreements or official works. Then the organizers can obtain legal rights to sell broadcasting rights of sports events.

(2)Non-performance competitions

With the exception of performance competitions, the other sports events are non-performance competitions. In contrast to performance competitions, non-performance competitions are performed on the spot without prior arrangement. Non-performance competitions mainly include two types: timing competition and scoring competition.

Timing competitions determine the results in terms of the length of time it takes to complete competitions. Running and swimming are common timing competitions. In this kind of competitions, although the individuals' competition process lacks creative content, from the overall view, each competition is unique. Therefore, from the point of view of the whole competition, timing competitions also have the possibility of being the objects of copyright. In this case, the event organizers play similar roles of choreographers. By coordinated arrangements, the timing competitions as a whole presents a certain degree of appreciation and originality. So the organizers become the copyright owners of timing competitions.

Scoring competitions determine the outcome by the number of points scored by both sides. Football, basketball are typical scoring games, the two sides fight through fierce confrontation and competition for victory. From a single athlete's point of view, individual creation is minimal. Therefore, scoring competitions can be seen as improvisation by all athletes. In this case, all athletes are jointly entitled to their copyright. Organizers are in a similar manners to obtain the authorization.

V. Conclusion

Based on the analyses of the copyright of performance competitions and non-performance competitions, this article discusses the copyright owners of sports competition system. It is hoped that the protection of sports events and related rights will be paid more attention to while China's sports industry is developing at a high speed.