XI

If a gala show presented on the Internet can reflect the producer’s unique choice and arrangement of performance programs, because of its high degree of originality, it can also be considered as a subject protected by the Copyright Law of China as “a work created in a way similar to cinematography”.Real-time rebroadcasting by others without permission violates the “other rights which shall be enjoyed by the copyright owners”under the Copyright Law.

Case: Company A was authorized by CCTV to obtain the exclusive right (including but not limited to internet, mobile platforms, IPTV, car TV and other new media communication platforms) to transmit, broadcast (including but not limited to real-time broadcast or delayed broadcast) and provide all TV channels of CCTV to the public.Company A found that Company B provided its users with the real-time broadcast service of a gala show program produced and filmed by CCTV in the mobile app software it developed and operated without permission, and argued that such behavior violated its legitimate rights and interests.((2018) Jing 73 Min Zhong No.1535, other similar cases such as (2017) Jing 73 Min Zhong No.840, (2015) Hai Min (Zhi) Chu Zi No.27389)

Regarding whether the gala program constituted a work protected by the Copyright Law of China, the court held that: in this case, the CCTV gala involved is different from a live stage performance.The gala’s program period is an image formed by CCTV during the gala on-site after editing.The shooting process of the gala is usually directed by the chief director, cameraman, and editor-in-chief.According to the script prepared in advance, the live performance is shot at different angles.At the same time, the director needs to make on-site selection and arrangement of the shooting scene, and insert subtitles, pre-recorded short films and external scenes to the program.(https://www.daowen.com)

The gala involved in the case presented through the Internet was not a simple mechanical recording of live performances; it ref lected the producer’s unique selection and arrangement of performances, incorporated creative labor, and reached a high degree of originality.Therefore, the gala involved in the case constitutes a work under the protection of the Copyright Law.By shooting and filming, its major creative process is to mix and fix, various pictures of the artistic performances of a certain medium, such as songs and dances, sketches, cross talks, and operas, which should be regarded as “a work created in a way similar to cinematography”.

Real-time network rebroadcasting refers to the collection and conversion of live broadcast signals of television or radio stations into digital information and providing the digital signal to network users for viewing in real time through a network server.Regarding what kind of rights the copyright owner infringed when rebroadcasting the program, the court held that: the “Right of Information Network Dissemination” stipulated in the Copyright Law is the right to provide works to the public by wired or wireless means, so that the public can obtain the work at the time and place of their personal choice.Since the real-time network rebroadcasting uses a non-interactive transmission method that the user cannot obtain the work at the time or place selected by the individual, but can only obtain the work within a specific time specified by the network service provider.Differing from the behavior controlled by the right of information network dissemination, the real-time network rebroadcasting cannot be protected by the “Right of Information Network Dissemination”.

In view of the fact that the Copyright Law does not have a named right corresponding to this act, the court finally decided that the unauthorized network real-time rebroadcast of the gala involved infringed on the “other rights” enjoyed by the copyright owner and Company B should pay the right holder economic losses.