Beijing IP Court Abstract of Judegment Case Reference

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Beijing IP Court Abstract of Judegment

Case Reference Number: (2015) Jing Zhi Min Zhong Zi No. 1818

Judicial Panel:

Mr. Chen Jinchuan, Ms Rui Songyan, and Ms Zhou Liting1

Court Clerk:

Song Yunyan

Involved Parties:

The Appellant (Defendant in the first instance trial): Beijing Tian Ying Jiu Zhou Network Technology Co., Ltd. (Tian Ying Jiu Zhou)

The Appellee (Plaintiff in the first instance trial): Beijing Sina Interconnection Information Service Co., Ltd. (Sina)

The third party in the first instance trial: LeTV Information Technology (Bejing) Co., Ltd. (Letv)

Case Acceptance Date: October 29, 2015

Date of Issuance of the Judgment: March 30, 2018

Judgment Outcome:

1 Translator’s Note: Judge Chen Jinchuan is the vice chief judge of Beijing IP Court. Judge Ms Rui Songyan is a senior judge and has issued many high profile/controversial opinions. She has been adamant in insisting that live sports broadcasting should be protected as recorded works or through broadcaster’s rights. Judge Ms. Zhou Liting has been in the court for over 10 years too. Her recent court decision rejecting a third party’s trademark rights over Wechat (Weixin) based on public interest has generated significant controversies. 1

3 1. Revoke Civil Judgment (2014) Chao Min (Zhi) Chu Zi No. 40334 made by Beijing Chaoyang District People’s Court; 2. Reject all claims made by Beijing Sina Interconnection Information Service Co., Ltd.

Cited Laws: Article 56.2 of the Civil Procedural Law of the PRC Article 95 of Supreme People’s Court’s Judicial Interpretation on the Application of Civil Procedural Law of the PRC Article 3 & 10.1.11 of the Copyright Law of the PRC Article 4 & 5 of the Implementing Rules of the Copyright Law of the PRC

Judgment Rules: 1. “Other works” stipulated in Article 3 of the Copyright Law shall be decided based on “provisions of laws and administrative regulations”. The court has no power to create other types of works other than those stipulated in Article 3 of the Copyright Law. 2. Cinematographic works are generated by continuous images that can express the whole thinking of the author using plots or materials. They may either generate resonance at the levels of human thinking (such as feature films or documentaries), or visual enjoyment (such as scenic films), or both to the audience. 3. Cinematographic works should at least satisfy two elements: fixation and originality. The Copyright Law does not pay attention to whether the works include common elements such as scriptwriting, actors or incidental music, etc.

4. The angles and heights2 for determining the originality of different types of works are different. They cannot be compared. 5. The difference between cinematographic works and video recording products is the difference in the level of originality, instead of the existence of originality. 6. Multiple objective restraining factors that exist in sports games live broadcast determined that continuous images carried by public-use broadcast signals do not satisfy the height of originality that cinematographic works require in normal situations. However, if live broadcasts through specific public-use broadcast signals are not restrained by relevant objective factors, or there are other demonstrations of originality, then these continuous images may constitute cinematographic works.

Key Points of Holdings:

2 Translator’s Note: Heights of creativity mean to the agree or to the extent that the work is creative. 2

1. Whether there were violations of legal procedures by the first instance court.

The outcome of this case may affect the interest of LeTV. The first instance court did not violate legal procedures in adding ex officio LeTV as the third party in the litigation.

The evidence that the Appellant applied to investigate is either irrelevant to the fact to be proved in this case, or has been provided by the third party LeTV. The first instance court did not violate legal procedures by rejecting the Appellant’s application to the investigation of evidence.

In the first instance hearing, the Appellee clearly stated that the claim was against the infringing acts of the Appellant during the 2012-2014 season. The first instance court did not adjudicate outside the scope of the Appellee’s claim by requiring the Appellant to cease rebroadcasting the games in the 2012-2014 season, and therefore it did not violate legal procedures.

2. Whether the continuous images carried by the involved public-use broadcast signals constitute a cinematographic work.

Although “other works” are stipulated in Article 3 (9) of the Copyright Law, the determination of “other works” shall be based on the provisions of “laws and administrative regulations”. The court has no power to create other types of works other than ones stipulated by the laws.

Since the Appellant restrained the contents that it claimed to constitute works to the continuous images carried by the involved public-use broadcast signals in the second instance procedure, and it has clarified in the first instance procedure that the type of work is “cinematographic works or works produced in methods similar with cinematographic works” (cinematographic works), the Court will analyze this claim from the angle of cinematographic works and break down the analysis to the following three levels: first, the constituting elements of cinematographic works. Second, in normal situations, whether the continuous images carried by the public-use broadcast signals of the Chinese Super League (CSL) live broadcast constitute cinematographic works. Third, whether the continuous images carried by the public- use broadcast signals of the two CSL games live broadcast constitute cinematographic works.

A. The constituting elements of cinematographic works

5 Cinematographic works are generated by continuous images that can express the whole thinking of the author using plots or materials. They may bring resonance of thinking (such as feature films or documentaries), or visual enjoyment (such as scenic films), or both to the audience.

Cinematographic works should at least satisfy two elements: fixation and originality. The Copyright Law does not pay attention to whether the works include common elements such as scriptwriting, actors or incidental music.

(1) Cinematographic works should satisfy the fixation requirement

Article 4(11) of the Implementing Rules of the Copyright Law of the PRC (Implementing Rules) stipulates that: “cinematographic works or works produced in methods similar with cinematographic works” should “be fixed on certain mediums”. This stipulation means that cinematographic works should have already been stably fixed on tangible mediums, in another word, satisfy the fixation requirement.

(2) Cinematographic works should satisfy the originality requirement

The determination of the originality of works involves two aspects: height and angle. The angle and height for determining the originality of different types of works are different. In this case, only the originality requirement of cinematographic works will be analyzed. a. Height of Originality

According to Article 4 and 5 of the Implementing Rules of the Copyright Law, continuous images constitute either cinematographic works, or video recording products. Therefore, the analysis of the originality of cinematographic works cannot be done without considering video recording products. Considering jointly factors such as the logical system of the Copyright Law, the historical development of copyrights and neighboring rights regime, and current judicial practices, the court holds that the distinction between cinematographic works and video recording products is the height of originality degree, instead of the existence of originality. b. The angle for determining originality

6 Different angles for determining originality may exist among different types of works and more detailed classification within the same type of works. Sports games are objective events and have the nature of documentary. Sports games will be regarded as documentary cinematographic works if they constitute work in the first place. Therefore, in this case, only the angle for determining the originality of documentary cinematographic works will be analyzed.

The objective features of documentary cinematographic works determine that their originality might at least shown in the following three aspects: the selection of materials, the filming of materials, and selection and arrangement of the filmed images. Every cinematographic work of this type should at least indicate the author’s personalized selection in one or several of the above aspect(s). c. The angles and heights for determining the originality of different types of works are different. They cannot be compared.

The differences are relevant to features of the type of work itself, the logical structure of the Copyright Law, and the logical relations between the Copyright Law and other Intellectual Property Laws. The requirement for the height of originality of cinematographic works is caused by the logical structure of the Copyright Law (it stipulates that cinematographic works are the object of copyrights, and video recording products are the object of neighboring rights, although they are both continuous images). Accordingly, for types of works without corresponding object of neighboring rights, such as photographic works and works of art, the requirement for the height of originality is certainly different with cinematographic works’. Therefore, the same degree of personalized selections may enable a certain picture or painting to constitute a photographic work or a work of art but it may not be enough for continuous images to constitute cinematographic works. This is the arrangement of the regime of the Copyright Law and does not fall within the scope of judges’ discretion.

B. In normal situations, whether the continuous images carried by the public-use broadcast signals of CSL games live broadcast constitute cinematographic works.

Public-use signal is the common terminology within the industry of sports games live broadcast. It is produced by professional live broadcast teams according to unified ideas and producing standards of the event’s organizing committee. The producing standards for public-use broadcast signals of different games are different.

Public-use broadcast signals usually include images, sounds, subtexts, slow motion playbacks, and game highlights of the live games. It only involves contents during a certain period. Even during this period, the contents within public-use broadcast signals are not completely the same with the contents that the audiences watch on television. Comments and narratives within contents that audiences watch are usually irrelevant to public-use broadcast signals. Additionally, the rebroadcasting right holders may not use the whole contents within public-use broadcast signals, for example, they insert advertisements during half times or accidental interruptions of games.

Since the continuous images carried by public-use broadcast signals of each games of CSL have the feature of typology, the court will first make typological analysis from the aforementioned two angles of “fixation” and “originality” basing on their similarity.

(1) Whether the fixation requirement is satisfied

In normal situations, whether the continuous images carried by game public-use broadcast signals are fixed depends on the phase of the games’ live broadcast. During live broadcast, the broadcast is simultaneous with the filming. At this time the whole game images have not yet been stably fixed on tangible carriers. Thus, the continuous images carried by public-use broadcast signals of games live broadcast at this time cannot satisfy the fixation requirement of cinematographic works. After the end of game live broadcast, the whole continuous images carried by public-use broadcast signals have been stably fixed on tangible carriers. The continuous images carried by public-use broadcast signals at this time satisfy the fixation requirement.

(2) Whether the originality requirement is satisfied

Originality emphasizes on personal selections. The number of personal selections is influenced by subjective factors of the author and restrained by objective factors. In normal situations, the more objective restrictive factors are, the less the room for expressed personalized selection and degree of originality will be.

The live broadcast of CSL games through public-use broadcast signals is restrained by the following objective factors: the objective situation of the game itself, the instantaneity of live

8 broadcast, the requirement to the capability of the live broadcast team, the audiences’ needs, and the signals’ live broadcasting standards, etc. These objective restrictive factors basically leave no room for personalized selections in the selection of materials from continuous images that the game signals carry. There is very limited room for personalized selections regarding the filming of materials and the selection and arrangement of the filmed images, etc.

The influence that the objective restrictive factors have on the room for personalized selection within different types cinematographic works are shown in the following progressive feature: in normal situations, documentary cinematographic works leave less room for personalized selection compared to the non-documentary type; within the documentary type, the live broadcasting type leave less room for personalized selection compared with the non-live broadcasting type; within the live broadcasting type, works that have standardized requirements for filming leave less room for personalized selection compared with ones without such requirements. Furthermore, works that need to satisfy the requirements of audiences apparently leaves less room for personalized selections compared with ones without such needs. In normal situations, the continuous images carried by public-use broadcast signals of CSL games are classified as the type with the most objective restrictive factors.

Although public-use broadcast signals include game highlights, which has comparatively large room for personalized selections. However, game highlights within public-use broadcast signals of CSL games last only for four minutes. Cinematographic works emphasize on the originality of the whole work. Four-minute game highlights are not enough for the continuous images of the whole game live broadcast to satisfy the height of originality that cinematographic works require. Therefore, analyzing from the angle of typology, it is difficult for the continuous images that the game signals carry, which are completely restrained by the aforementioned factors, to satisfy the height of originality that cinematographic works require.

However, since the above conclusion is drawn considering the objective restrictive factors that this type of game live broadcast usually has. If in specific cases, the involved sports game live broadcast is not restricted by the above factors, or there are other indications of originality, continuous images may certainly constitute cinematographic works. Thus, whether the continuous images carried by public-use broadcast signals of sports games broadcast satisfy the originality requirement for cinematographic works should be determined on a case-by-case basis

9 C. Whether the continuous images of live stream of the two games at issue carried by public-use broadcast signals constitute a cinematographic work?

(1) Whether the continuous images meet the requirement of fixation?

In this case, the accused actis the act of live streaming.It is basically synchronous with live broadcasting. The images of the whole games at issue have not been fixed stably on a tangible carrier in the process of streaming, so the continuous images of live stream carried by public- use broadcast signals do not meet the requirement of fixation to constitute a cinematographic work.

(2) Whether the continuous images meet the requirement of originality?

During the second instance, the Court required the Appellee to specify the demonstration of originality of the continuous images of two sports games at issue. The analysis below will be based on the examples and detailed representations in the Appellee’s statement of opinions It is conducted from four aspects: story-telling creation, use of slow motion, close-up shots and game highlights. a. Story-telling creation

The Appellee put forward seven examples related to story-telling creation. And the Appellee argued that originality can be mainly demonstrated by the following two aspects: the live stream team’s predictions of live events and the capture of shots of related players based on the predictions.

Regarding the seven examples raised by the Appellee, the Court holds that the predictions by the live stream team is a common practice for live broadcast teams which are qualified to live broadcasting a CSL game, and the filming and selected shots based on the predictions are also conducted through common practice. As a result, the aforesaid angle cannot demonstrate a comparatively high level of originality of the involved continuous images.

The story-telling feature stressed by the Appellee actually originates from the event itself rather than the live stream team’s creation. In order to illustrate the originality from the perspective of story-telling feature, the Appellee has to prove that the team has shown the audience a story different from real-life events via its creative work. However, in this case, such situation does not exist. In fact, it is merely possible for continuous images carried by public-use broadcast signals of such games, which shall meet the basic requirement of truly displaying games, to bring about story-telling creation with originality. b. Slow motion

10 Regarding the slow motion part, there are three examples raised by the Appellee: slow motion of chest-down, slow motion of the players’ fouls, slow motion of scoring in case of a dispute over the scoring. The Appellee believed that the originality can be demonstrated by the following two aspects: the director’s answering the questions and confusions of the audiences by the use of slow motion; the use of slow motion creates a different feeling for audience compared with watching a live game.

The Court holds that the objective functions that the shots of a certain kind actually bring shall not be taken into consideration when determining originality, so the function of answering the questions and confusions of the audiences is not directly related to originality.Even if such function are to be taken into consideration, such function is not a personalized selection because such function has been explicitly specified in the signal-producing manual of CSL.

As for the Appellee’s argument that the use of slow motion creates a different feeling for audience compared with watching a live game, it is irrelevant to originality. Originality refers to originality of expressions rather than ideas or facts. Sports games are objective facts while continuous images fall within the scope of expression. Because there is no comparability between facts and expressions, whether or not there is difference between watching a live game and watching a game via live streaming is not relevant to originality. What is relevant to originality is whether or not there is difference between the continuous images of live streaming of the same game made by different live stream teams which constitutes a personalized selection among different expressions.

Though slow motion is not related to originality from the perspective alleged by the Appellee, the use of slow motion may indeed show originality of the live stream team, which can be reflected on the filming of materials and the selection of slow motion. Regarding the three examples aforesaid, CSL has already specified in the signal-producing manual the circumstances under which slow motion can be used, including offside, gamesmanship in physical contact, determination of out of bounds, determination of showing a red card or yellow card, etc. At least two out of three examples raised by the Appellee fall within the scope of circumstances specified in the signal-making manual. As for the slow motion of chest-down, though we cannot decide for sure whether it can be classified into the circumstances specified in the manual, the timing and the filming of slow motion are basically common practices for teams qualified for live broadcasting games of this kind. To conclude, the above mentioned three examples cannot demonstrate a higher level of originality. c. Close-up shots

11 Regarding close-up shots, the Appellee mentioned the following shots: close-up of footballs, close-up of flags, close-up of referees, close-up of players, close-up of kick-offs.

As for close-up shots, the Appellee does not conduct detailed analysis of the originality that close-up shots may present. The Court discusses originality of the close-up shots from the following two perspectives: the choice of objects and the filming of materials. In the aspect of the choosing of objects for close-up shots, the above-mentioned examples are symbolic shots chosen during the ongoing of games, for instance, choosing close-up of referees at the moment of kick-off, and choosing close-up of a player when he is scoring a goal. Such choosing is just a common practice. Besides, lots of strict rules on the use of close-up shots and the timing of cuts are specified in the signal-making manual, so the above-mentioned examples cannot prove the originality of the live stream team. As for the filming of materials, because the continuous images in the aforesaid examples are filmed with ordinary skills and the Appellee failed to point out the difference, the filming of materials cannot show a comparatively high level of originality. d. Game highlights

As for game highlights, though the Appellee only put forward four images, a total of four- minute-long highlights is actually provided by public-use broadcast signals of CSL, which may present a higher level of originality. However, in this case, the Appellee argued that continuous images carried by public-use broadcast signals of the whole game constitute a cinematographic work rather than the aforesaid highlights. A cinematographic work shall be continuous images filmed by an author through use of plots and materials, which is sufficient to express the author’s ideas. Thus, the originality of a cinematographic work shall be assessed by taking the whole cinematographic work into consideration rather than only part of it. As a result, even if taking the whole four-minute-long highlights into consideration instead of the four images alleged by the Appellee, the possible originality of the highlights still cannot prove that the continuous images of live streaming of the whole game has enough originality to constitute a cinematographic work.

To conclude, the Court cannot find a comparatively high level of originality only from the examples mentioned in the statement of opinions submitted by the Appellee. Given that the Appellee explicitly has stated that the examples are typical images with a fair amount of dramatic and conflicting features, the rest should have less originality compared with the aforesaid examples according to common sense. Considering that the Court has already indicated that the continuous images carried by public-use broadcast signals usually do not have a fair amount of originality to constitute a cinematographic work due to a number of

12 objective restrictions, and the Appellee failed to prove or explain that the continuous images at issue are not affected by the above mentioned objective restrictions. There are neither other situations in which a higher level of originality may be reflected, the continuous images carried by the public-use broadcast signals of the involved two games do not have enough originality as a cinematographic work.

In conclusion, the continuous images carried by the public-use broadcast signals of the involved games neither meet a cinematographic work’s requirement of fixation nor originality, so the continuous images do not constitute a cinematographic work. The appellant’s grounds of appeal are supported by the Court. The court of first instance erred in the related determination and the mistake is now corrected by the Court.

The Court emphasizes that, though the Court negates that the continuous images carried by the public-use broadcast signals of the two games constitute a work, the intelligent labor devoted by the live stream team cannot be negated. It needs more superb skills and capacity for the team to express its personality under the circumstance with so many objective restrictions. But the originality of a work emphasizes the importance of personalized selection which can be perceived, and the difficulty of the intelligent labor devoted to realizing the personalized expression should not be taken into consideration when determining the originality of a work.It is the same with excellent copies of masterpieces, which need superb skills but still cannot constitute a work.

3. Whether the Appellant’s grounds of appeal, that the accused act does not infringe the copyright even if the continuous images at issue carried by the public-use broadcast signals constitute a cinematographic work, can be established

If the continuous images at issue carried by the public-use broadcast signals do not constitute a cinematographic work, the accused act certainly does not infringe the copyright. Whereas the the accused act is one of the common accused acts in present cases and there are disputes over the nature of the accused act in judicial practices, the Court decides to still carry out analysis on the Appellant’s grounds of appeal. Of course, the following analysis is based on the premise that the continuous images at issue carried by the public-use broadcast signals constitute a work.

The right to broadcast stipulated in Article 10 (11) covers 3 kinds of acts: wireless broadcast, wired or wireless rebroadcast, publicly broadcast. In this case the signal of the live stream are originated from CCTV and BTV, so the above acts of TV station constitute wireless broadcast (the first act covered by broadcast right). As a result, the accused live streaming act

13 constitutes an act of “disseminating the broadcast of a work to the public by wire or by rebroadcasting” (the second act covered by broadcast right) and shall be regulated by broadcast right. The court of first instance erred in determining that the accused live streaming act shall fall within the scope of “other rights to be enjoyed by copyright owners”, and the mistake is now corrected by the Court.

“letv.com” in the accused broadcast URL “ifeng.sports.letv.com” refers to LeTV’s second-level domain, and “ifeng” refers to Phoenix Net operated by the Appellant. Given that the Appellant and LeTV have no evidence proving the contrary, the Court finds that the Appellant and LeTV cooperated in furnishing the contents in the URL and both party shall bear joint liability for the accused acts, and the Appellant’s allegation that it only conducted the act of providing URL cannot be supported by the Court.

Playing the accused video requires the copyright owner’s license. According to the license obtained by LeTV, it has the right to live streaming the games at issue on its website www.letv.com, but it is not licensed to cooperate with any third party to use the program by means of co-building a cooperation platform. The accused URL leads to the cooperation platform built together by LeTV and the Appellant, so the accused act goes beyond the scope of the copyright owner’s license. If the continuous images at issue carried by the public-use broadcast signals constitute a cinematographic work, the accused act infringes the copyright. The Appellant and LeTV cooperate to provide contents of the live stream, the Appellant shall bear joint liability with LeTV. The Appellant’s grounds of appeal cannot be supported by the Court.

4. Disposal of the Appellee’s claim of unfair-competition in the first instance

In the first instance, the Appellee’s claims include copyright infringement and unfair-competition. After determining that the accused act infringes the copyright, the court of first instance held that the harm suffered by the Appellee does not require the adjustment of Anti-Unfair Competition Law. and therefore did not adjudicate on the unfair competition acts. In accordance with Article 168 of Civil Procedural Law of the People’s Republic of China and Article 323 of the Supreme People’s Court Interpretations on Application of the “Civil Procedural Law of the People’s Republic of China, a request not appealed by a litigant shall not be tried by the court of second instance, except where the judgment of first instance violates the prohibitive provisions of laws or harms national interest, public interest or the legitimate rights and interests of others. In view that the Appellee did not appeal against the finding, the Court cannot try the claim of unfair-competition since the accused act does not harm national interest, public interest nor the legitimate rights and interests of others.

14 Besides, the determination of unfair-competition is based on the bad faith of the actor. Even if two acts share the same manifestation, the difference in other factors may also affect the determination of the bad faith. As a result, the Court cannot give explicit opinions on the legitimacy of the accused act, which are to be applicable in all cases, based only on the manifestation of the acts.

5. Methods in Copyrights Law to adjust live broadcast of sports games via public-use broadcast signals

The rights of broadcasting organizations are stipulated in Article 45 of the Copyright Law. Public-use broadcast signals of sports games are the object of the right of broadcasting organizations. The original owners of the right broadcasting organizations are broadcasting stations and TV stations, but the transferees or licensees may be other civil subjects. Therefore, whether live stream via public-use broadcast signals can be protected by the right of broadcasting organizations lies in whether live stream can be covered by “rebroadcast” in the right of broadcasting organizations.

At present, both legislature and courts believe that “rebroadcast” in the right of broadcasting organizations does not include live streaming. Thus, it is difficult to prohibit others from live streaming through the right of broadcasting organizations under present frame of copyright law.

One fact that cannot be neglected is, the current Article 45 of Copyright Law was formulated in 2001 when live stream was fairly rare considering the internet environment at the time. As the development of network technology, live stream (wired rebroadcast) is bringing far greater impacts on the interests of the owners of the right of broadcasting organizations than wireless rebroadcast does. The development of objective situation requests alterations of the scope of the right of broadcasting organizations. If the legislature includes live stream in the scope of the right of broadcasting organizations in the amendment of Copyright Law, it will furnish effective remedies for protection of public-use broadcast signals of sports games.

To conclude, considering the existing evidence failed to prove that the continuous images carried by public-use broadcast signals of the two games constitute a cinematographic work, i.e., the Appellee has no copyright over the continuous images, the accused acts do not constitute infringement of the Appellee’s copyright. The Court supports part of the Appellee’s grounds of appeal. The court of first instance erred in determining that the accused acts constitute infringement of the Appellee’s copyright, and the mistake is now corrected by the Court.

Previous judgments referenced:

15 （2013）Min Shen ZiNo.1358

（2002）Gao Min Zhong Zi No. 270

Note: This abstract is not part of the judgment and has no legal validity.

16 Beijing Chaoyang District People’s Court

Civil Decision

(2014)Chaoyang Civil (IP) First Instance No. 40334

Plaintiff: Beijing Sina Internet Information Services Co., Ltd. Defendant: Beijing Tianying Jiuzhou Network Technology Co., Ltd. Third Party: Letv Internet Information & Technology (Beijing) Ltd.

Upon acceptance of the Complaint filed by the Plaintiff Beijing Sina Internet Information Services Co., Ltd. (hereafter “Sina”) against the Defendant Beijing Tianying Jiuzhou Network Technology Co., Ltd. (hereafter “Tianying Jiuzhou”) for copyright infringement and unfair competition, Tianying Jiuzhou filed an objection to the jurisdiction of this Court (hereafter “the Court”). The Court made a decision dismissing Tianying Jiuzhou’s objection to the jurisdiction of the Court. Tianying Jiuzhou refused to accept the decision and appealed to Beijing Third Intermediate People’s Court. Beijing Third Intermediate People’s Court dismissed the appeal and maintained the original decision as the final decision on this matter. During the trail of this case, the Court informed Letv Internet Information & Technology (Beijing) Ltd. (hereafter “Letv”) to participate in the trail as third party in accordance with article 56(2) of the Civil Procedure Law. A collegial bench was formed according to the law, and the bench publicly heard this case. Rong Chao and Zhang Zhe, authorized representatives of the Plaintiff Sina, Liu Xinyan, authorized representative of the Defendant Tianying Jiuzhou, and Liu Kai and Cui Xiaolong, authorized representatives of the Third Party Letv, participated in the proceeding. Now the proceeding is concluded.

The Plaintiff Sina claimed that: on August 1, 2013, Sina found that on the front page of the Chinese Super League (“CSL”) Channel on iFeng.com (www.ifeng.com)1, Tianying Jiuzhou marked and offered live broadcast of the two games on a prominent position of the webpage: ① Lu Neng VS Fu Li (August 1) ② Preview — 19:35 Live Streaming Shen Xin VS Shun Tian (August 1). Upon clicking the above mentioned title, they accessed a dedicated webpage for this CSL game with “iFeng Sports News” and “Please tune in to iFeng Sports for live streaming of this game” displayed. On “click to access live streaming studio”, there appeared a logo on the tag of the Internet browser, a title “Live Streaming Cooperation: iFeng Interactive Live Studio” and many commercials on this page. Sina claimed that without authorization, Tianying Jiuzhou set a CSL channel on its website and illegitimately broadcasted CSL live videos, which severely infringed Sina’s exclusive

1 iFeng.com (or iFeng) is a website owned and operated by Tianying Jiuzhou. 1 / 11

17 rights in a willful and malicious manner. Therefore, Tianying Jiuzhou’s act of broadcasting the TV signals of live CSL games to the public through information network synchronization had infringed Sina’s copyright in the sporting event program in this case which was created in a way similar to cinematography. In the meantime, Sina held that the sporting events broadcast authorization system of sports event organizers was a legitimate competition order worthy of legal protection. Tianying Jiuzhou’s act disrupted the competition order of this business structure and damaged the business value therein, thus constituted unfair competition. Tianying Jiuzhou clearly had, for the purpose of avoiding regular authorization, illegally, mala fide and unfairly deprived Sina of the interests from exclusive CSL broadcasting, taken away Sina’s economic interests, diverted Sina users’ attention and website traffic, made false and misleading advertisement regarding the source of the video, and broadcasted CSL games at its portal website under the name of cooperation which in fact violated business ethics. Therefore, under copyright law, anti-unfair competition law and relevant laws and regulations, Sina prayed the Court to decide that Tianying Jiuzhou shall cease infringing Sina’s exclusive right of broadcasting the CSL games, immediately cease disrupting the broadcasting right of sporting events and the legitimate and fair competition order and business structure of the authorization system, immediately cease, for obvious purpose of avoiding regular authorization, broadcasting live CSL games on the website of Tianying Jiuzhou under the name of the so-called “Sports Live Streaming Studio”, immediately cease false and misleading advertisement regarding the source of the video, pay an amount of RMB 10 million in damages, and make an announcement on the home page of iFeng.com and China Television Paper in order to eliminate the adverse effects of the infringement and unfair competition activities.

The Defendant claimed that: (1) the claims made by Sina were unclear; (2) the Complaint was groundless, as soccer games were not the subject matter of copyright law, and the right to the sporting events did not naturally result in the right to the sporting events programs; (3) Sina lacked the capacity to sue, as it was not authorized by the author and the authorization obtained by Sina had epidemic flaw; (4) the Defendant sued by Sina was incorrect; (5) the amount of damages lacked support.

The Third Party Letv stated that, Letv had the right to broadcast the CSL games in this case, Letv cooperated with Tianying Jiuzhou regarding the domain name (www.ifeng.sports.com), but did not enter into any cooperation regarding the CSL games, the broadcasted games were not form Letv’s website. Therefore, Letv did not take part in joint infringement activity.

The Court found the following facts to be true:

FIFA Statues (July 2012) stipulated under the “Members’ Independence” clause that “members have the obligation to manage their affairs independently and ensure that

2 / 11

18 their own affairs are not influenced by any third parties.” And under the chapter “Rights in Competitions and Events”, it is stipulated that “FIFA, its Members and the Confederations are the original owners of all of the rights emanating from competitions and other events coming under their respective jurisdiction, without any restrictions as to content, time, place and law. These rights include, among others, every kind of financial rights, audiovisual and radio recording, reproduction and broadcasting rights, multimedia rights, marketing and promotional rights and incorporeal rights such as emblems and rights arising under copyright law.” The Statues was notarized by Beijing Fangzheng Notary Office in the notarial certificates (2014) Fangzheng Nei Jing Zheng Zi No. 12458 and 12461.

The Chinese Football Association (CFA) Statues issued on January 19, 2005 provided that, CFA was the only member representing China in FIFA and Asian Football Confederation (AFC); and in the chapter of “Principles on Asset Management and Utilization”, it was clearly stipulated that “the major source of funding of CFA” included “income from sales of broadcasting rights”, “sports business related income”, “income from license, assignment of incorporeal asset and other derivative income”, and “other legitimate income”; in the chapter of “Sporting Events and Competition Rules”, under “Rights in Sporting Events” it was clearly stipulated that “CFA is the management institution of China football games, the original owner of all rights emanating from competitions and other events under CFA’s jurisdiction. Such rights include financial rights, audiovisual and radio recording, reproduction and broadcasting rights, multimedia rights, marketing and promotional rights and incorporeal rights such as emblems and rights arising under copyright law.” “CFA may utilize its rights in the sporting events in light of the need and in the following manners: utilize the rights exclusively, or jointly with a third party, or entirely through a third party.” Under the “Competition Management” clause, it was stipulated that “official competitions of all levels in China” “are under direct management of CFA”. The CFA Statues was valid till 2013. The Statues was notarized by Beijing Fangzheng Notary Office in the notarial certificates (2014) Fangzheng Nei Jing Zheng Zi No. 12460.

On March 8, 2006, CFA issued an authorization letter, in which it was stated that: “according to FIFA Statues and CFA Statues, CFA is the original owner of all rights emanating from CSL. Such rights include financial rights, audiovisual and radio recording, reproduction and broadcasting rights, multimedia rights, marketing and promotional rights and incorporeal rights such as emblems and rights arising under copyright law. In order to promote CSL, CFA authorizes Chinese Super League Co., Ltd. (“CSL Co., Ltd.”) to develop and manage CSL television, broadcast, Internet and various multimedia rights, CSL naming rights, advertising rights on the field, special item supplying right, incorporeal rights such as CSL image design, information resources, brand resources etc., and other rights or resources emanating from CSL (including but not limited to resources emanating from assets of the competing clubs). CSL Co., Ltd. may engage in market development and promotion

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19 of the above mentioned resources on a global scale, it has right to contact, negotiate and sign relevant agreements etc., and may delegate the agency within the scope of authorization after CFA keeps a record of such delegation. This authorization is the sole authorization from CFA with regard to development and management of CSL resources, and is valid for ten years (from January 1, 2006 to December 31, 2015)”.

On March 7, 2012, CSL Co., Ltd. and Sina entered into a contract. According to the contract, Sina had exclusive right to broadcast the CSL games on portal websites, including but not limited to live broadcast, recorded broadcast, broadcast on demand and postponed broadcast; and the above mentioned portal websites included but not limited to Tencent (www.qq.com; www.tencent.com), Sohu (www.sohu.com), Netease (www.netease.com; www.163.com), iFeng (www.ifeng.com), TOM (www.tom.com), People’s Daily (www.people.com), Xinhua Net (www.xinhuanet.com), CSL Co., Ltd. shall not cooperate with these portal websites in any form; the contract was valid from March 1, 2012 to March 1, 2014; and to avoid any confusion, the portal websites stipulated in this contract that were competitors of Sina included but not limited to Tencent, Sohu, Netease, iFeng, TOM, People’s Daily, and Xinhua Net etc.; CSL Co., Ltd. shall insure that the above mentioned competitors of Sina do not, in any form, broadcast live or recorded CSL games by pirating television signals, offer broadcast on demand, or offer links to such broadcast, publicly make false advertisement on their rights to broadcast live or on demand CSL games. On December 24, 2013, CSL Co., Ltd. issued an authorization letter to Sina. In this letter, it was stated that CSL Co., Ltd. was authorized by CFA to develop and manage CSL media assets; CSL Co., Ltd. authorized Sina, during the term of the contract, the exclusive right to broadcast, transmit and play the CSL games and related videos on portal websites, including but not limited to live broadcast, recorded broadcast, broadcast on demand and postponed broadcast. The above mentioned portal websites, i.e. website that CSL Co., Ltd. cannot cooperate with, included but not limited to Tencent (www.qq.com; www.tencent.com), Sohu (www.sohu.com), Netease (www.netease.com; www.163.com), iFeng (www.ifeng.com), TOM (www.tom.com), People’s Daily (www.people.com), Xinhua Net (www.xinhuanet.com) etc. The authorization was valid until March 1, 2014, the authorization would automatically terminate upon expiry of such date. As the sole agent authorized by CFA for its commercial assets, CSL Co., Ltd. hereby certified that Sina had the right to take all legal measures to stop any third party from illegal use of the above mentioned videos, including litigation. This authorization was valid for two years (March 1, 2012 to March 1, 2014), and was already filed with CFA. For the CSL games Lu Neng VS Fu Li, Shen Xin VS Shun Tian on August 1, 2013, Sina, as authorized by the above mentioned contract, had the exclusive right to broadcast, transmit, and play the two CSL games and related videos on its portal website, including but not limited to live broadcast, recorded broadcast, broadcast on demand and postponed broadcast.

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20 Tianying Jiuzhou as the owner of the website iFeng.com, is responsible for operation of this website. On the webpage of iFeng.com, when click on the column “CSL”, one could access iFeng sports page, then click on “preview”, one could access “iFeng Sports > Chinese Football > CSL > Main text”, there was a line appearing on the webpage which read “Click here to access Live streaming Studio” along with advertisement contents. Click on “Click here to access Live Streaming Studio”, one could see the “Sports Live Streaming Studio” at the address “ifeng.sports.letv.com”. The tag of the webpage read “Live Streaming Cooperation: iFeng Interactive Live Studio”. On the preview page of the sports videos, there were announcements about the two games, which read “Please tune in to iFeng Sports for live streaming of this game”. Live streaming of the two games “Shandong Lu Neng VS Guangdong Fu Li” and “Shenxin VS Shuntian” on August 1, 2013 were accessible on the “Sports Live Streaming Studio”. On the webpage, there appeared the address www.ifeng.sports.letv.com with logos of BTV and CCTV 5; at the same time, two return links were displayed on the top of the webpage, i.e. “iFeng Sports” and “Letv Sports”. The videos of the two games all included pictures of replay, zoom, football pitch, stand, the whole pitch and part of the pitch, and commentary of the entire games. The above mentioned process was conducted on a cleaned computer of the Shanghai Minxing Notary Office on August 1, 2013, and notarized in the notarial certificate (2013) Hu Min Zheng Jing Zi No. 1903.

Letv is the operator of the video website (www.letv.com) which broadcasted the CSL games on August 1, 2015. In this regard, Letv argued that the pictures of the CSL games broadcasted on its website were different from those broadcasted by iFeng.com, but Letv failed to provide any evidence. Letv’s rights in the CSL games came from:

On April 19, 2013, Letv (Party A) signed a Licensing Agreement with PPLive Corporation Limited (Party B) and Letv Information Technology (HK) Limited (Party C) on 2013-2014 Season CSL Games content. According to the agreement, Party B had the exclusive information network broadcasting rights (which can be delegated) to broadcast 2013-2014 Season CSL games within mainland China (excluding Hong Kong, Macao and Taiwan), including live broadcast, postponed broadcast, broadcast on demand and producing game highlights; Party A could broadcast the above mentioned games only on its own website (only at www.letv.com), or on personal computers (including PC webpages, PC user end, excluding handhold mobile device, PAD, mobile phone or TV etc.); Part A shall not, without authorization from Party B, cooperate with or authorize any third party to use the authorized games, either through providing links or establishing cooperation platform etc.

On March 15, 2012, Ti Ao Dong Li (Beijing) Sports Broadcast Limited (hereafter “Ti Ao Dong Li”) issued an authorization letter to PPLive Corporation Limited (hereafter “PPLive”), authorizing PPLive exclusive information network broadcasting rights and

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21 distribution right, including live broadcast, broadcast on demand, postponed broadcast and producing game highlights.

CSL Co., Ltd. (Party A) signed an agreement with Ti Ao Dong Li (Party B). Both parties agreed that, from February 1, 2012 to December 31, 2014, Party A, as authorized by CFA, enjoyed financial rights such as CSL TV broadcast copyright, was responsible for operating and managing CSL companies with commercial assets; Party B hoped to obtain CSL TV broadcasting right, TV products right, Internet broadcasting right, cellphone application development right, TV broadcasting right outside Mainland China, and Internet broadcasting right outside Mainland China. Regarding Internet broadcasting right, the agreement stipulated that, Party B had the right to authorize Internet broadcasting exclusively to a third party website or Internet institution, but shall not authorize such rights to any portal websites; Party A retained the right to authorize any portal websites to broadcast CSL games online; if any signal transmission fee was incurred to the authorized portal website operators, the authorized party shall discuss with Party B. On March 15, 2012, CSL Co., Ltd. issued an authorization letter in which it was stated that CSL Co., Ltd. cooperated with Ti Ao Dong Li on CSL games radio and TV broadcasting at local TV stations, non-portal websites Internet broadcasting copyright, cellphone application software, overseas TV broadcasting and overseas Internet broadcasting development, and this agreement was valid till December 31, 2014.

Regarding the broadcasting of the CSL games at www.ifeng.sports.letv.com, Letv and Tianying Jiuzhou acknowledged that they created this domain name for purpose of cooperation. During the cooperation period, Letv pushed videos on webpages at this domain name, but the cooperation was terminated afterwards. With regard to the source of the CSL games broadcasted, Tianying Jiuzhou claimed that they were redirected from Letv.com, which Letv denied but failed to provide any evidence. Both parties agreed that the URL for broadcasting the CSL games was not functional anymore.

Sina claimed that, servers were needed for broadcasting the games, resulting in loss on IDC broadband cost, rack expense, hardware depreciation expense, but as all the data on the server were mixed, they were not able to tell which exactly were related to the CSL games; and they also suffered loss of the advertisement fees. But Sina did not provide relevant evidence for such claims.

On July 31, 2014, CSL Co., Ltd. released a Statement. In the Statement, it was pointed out that as the sole authorized agent for CFA’s financial assets, CSL Co., Ltd. certified that Sina was the exclusive owner of the CSL games broadcasting rights on portal websites (from March 1, 2012 to March 1, 2014), and CSL Co., Ltd. had never by itself or through its subagent authorize or license iFeng.com (www.ifeng.com) or its related websites to broadcast the CSL games, including live broadcast, recorded broadcast, broadcast on demand and postponed broadcast, had never authorized any

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22 party to cooperate with any third party to broadcast CSL games in the form of cooperative broadcasting or broadcasting Cooperative Live Steaming Studio, Live Steaming Platform at any domain name owned or not owned by such party. The unfair competition activities of iFeng.com and its cooperative companies had severely damaged the established order of sports broadcasting and copyright license market, unfairly stole the economic benefits of the licensed companies, severely damaged the market competition order and harmed the development of a healthy order of the sports market.

The above mentioned facts were supported by relevant statues, notarial certificates, authorization letters, statements, record of the hearing and record of investigation etc.

In the opinion of the Court, CFA is the rightful holder of all rights in various football games according to FIFA Statues and CFA Statues; its rights include all financial rights, audiovisual and radio recording, reproduction and broadcasting rights, multimedia rights, marketing and promotional rights and incorporeal rights such as emblems and rights arising under copyright law; in the meantime, it has the right to execute its right through cooperation with third parties and exclusive license to third parties. Under such circumstances, according to the authorization letter issued by CFA on March 8, 2006, it can be confirmed that CSL Co., Ltd is the authorized agent of CFA to develop and manage CSL television, broadcast, Internet and various multimedia copyrights, may engage in market development and promotion of the above mentioned assets on a global scale, has rights to contact, negotiate and sign relevant agreements etc., and may delegate the agency within the scope of authorization after CFA keeps a record of such delegation, and this authorization is the sole authorization from CFA regarding CSL asset development and management.

On the basis of the above mentioned statues and authorization, it can be confirmed that, the authorization letter issued by CSL Co., Ltd. to Sina on December 24, 2013 is valid and effective. Thus, Sina has, within the contract period, the exclusive right to broadcast, transmit, and play CSL games and all related videos on its portal websites, including but not limited to live broadcast, recorded broadcast, broadcast on demand and postponed broadcast; and Sina has rights to take all legal measures necessary, including litigation, to stop any third party from infringing the above mentioned rights and obtaining damages.

From the above mentioned statues and authorization, it is clear that broadcasting of the CSL games is within the scope of the relevant rights; and also Sina has broadcasting rights of the CSL games. Though logos of BTV and CCTV appeared on the webpage where the CSL games were broadcasted, Sina’s broadcasting rights of the CSL games obtained through the above mentioned verification and authorization procedure cannot be denied; at the same time, according to the agreement between CSL Co., Ltd. and Ti Ao Dong Li, CSL Co., Ltd. has separately authorized portal websites broadcasting right, and TV broadcasting right, TV products rights etc.

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23 Therefore, the Court does not accept Tianying Jiuzhou’s claim that Sina is not authorized or the authorization obtained by Sina has epidemic flaw.

From the address www.ifeng.sports.letv.com at which the CSL games were broadcasted, and the access status displayed on the webpage on which the CSL games were broadcasted, it is clear that the CSL games were broadcasted at a secondary domain name of Letv.com. Generally, from the technical perspective, owner of a domain name can control the content on its secondary domain name, i.e. Letv has control over the broadcasted CSL games. Considering Tianying Jiuzhou used to cooperate with Letv, Letv used to push related videos to iFeng.com, and the title “Live Streaming Cooperation: iFeng Interactive Live Studio” was displayed on the webpage, and also considering there were two return links on the webpage broadcasting the CSL games “Letv Sports” and “iFeng Sports”, it cannot be concluded that such webpage returns to a single main webpage (address). Considering the website address at which the CSL games were broadcasted is not functional, the source server cannot be identified through analyzing the domain name at which the CSL games were broadcasted, and further considering Letv cannot provide any evidence to prove that the CSL games broadcasted by Letv were different from those broadcasted on iFeng.com, the Court does not accept Letv’s claim that it is unaware of iFeng’s broadcasting of the CSL games, and the Court holds that the information source of the CSL games broadcasted on iFeng.com is decided and provided by Letv.

From the chain of Letv’s acquirement of the right to broadcast the CSL games, it is clear that: (1) the authorized scope of Ti Ao Dong Li with regard to the CSL games is limited to radio and TV broadcasting at local TV stations, non-portal websites Internet broadcasting copyright, cellphone application software, overseas TV broadcasting and overseas Internet broadcasting development, which is to say iFeng.com is outside of the above mentioned scope; (2) Letv shall broadcast the authorized games only on its own website, and shall not cooperate with or authorize any third party to use the authorized games through providing links or establishing cooperation platforms. The current evidence does not show that Letv is not aware of iFeng’s broadcasting of the CSL games.

Therefore, it is clear that the activity of Tianying Jiuzhou providing links to the games is not merely Internet service activity, but the activity is broadcasting the CSL games, by way of providing links and cooperation with Letv, to Internet users without authorization, which is broadcasting the CSL games. According to the Torts Liability Law, where the joint and several liability shall be borne by the tortfeasors according to law, the infringed shall be entitled to claims partial or all of the tortfeasors to bear the liability. From perspective of the source of the authorization, “portal website” is not a legal concept, and the right to establish a portal website belongs to the CSL games proprietor CSL Co., Ltd., i.e. CSL Co., Ltd. agreed on the scope of portal websites in its contract. From the authorization letter of CSL Co.,

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24 Ltd. to Sina, iFeng.com and Sina.com belong to the same type of websites, i.e. portal websites; iFeng does not have right to broadcast the CSL games. Thus the broadcasting activity of iFeng, has infringed on the broadcasting right of Sina, and Sina has the right to claims Tianying Jiuzhou to bear the infringement liability and cease the infringement activity.

Sina proposed in this case that, pictures of the CSL games shall be protected under Copyright Law. According to copyright law, only intellectual achievements that are original and can be reproduced in any tangible medium are works protected under the Chinese copyright law. Originality is the key for the Court to decide whether pictures of the CSL games constitute work. Originality means independent creation without imitating or plagiarizing others’ works.

From an overall perspective of sporting events broadcasting and production, sporting events’ broadcasting and production are, by setting a few, tens of or dozens of fixed or unfixed recording equipment, shoot, record, and produce final pictures seen by users and audience, but fixed camera equipment does not mean fixed pictures. The pictures seen by the audience are not exactly the same or exactly simultaneous with the sporting event on site. This shows that the production procedure of sporting events broadcasts, involves not only recording of the sporting event, but also replays, close-up shots of the game or players, pictures of the football pitch and the stand, players and the audience, the whole football pitch and part of the football pitch, and also commentary. The formation of the above mentioned pictures, is the result of the director’s selection and arrangement of multiple shots taken by multiple recording equipment. This whole procedure, through different means such as different placement of recording equipment, different selection of pictures, arrangements and cuts, will produce different final pictures, or say, different sporting events directors will produce different sporting events pictures. Thus, although the law does not specify the standard of originality, it should be agreed that, through selection and arrangement of the recording cameras for sporting events, new pictures are created, which is undoubtedly a creative endeavor. And the originality is reflected in the fact that through different selection and production, different pictures will be created. That is to say, pictures generated through recording of sporting events, meet the requirement of originality under Chinese copyright law, and shall be regarded as work. With regard to the pictures of the CSL games in this case, they meet the originality requirement mentioned above, i.e., through shooting and producing, pictures are created, they generate visual responses and effects to audiences in audiovisual forms, thus constituting work.

To sum up, Letv and Tianying Jiuzhou have jointly broadcasted the CSL games, and have infringed on Sina’s copyright in pictures of the CLS games. With regard to the broadcasting activity of the CSL games, though it was conducted on the information network, as it was not accessible in an interactive way at any given place and time online, such activity is not regulated by the Regulation on Protection of the Right to

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25 Network Dissemination of Information, but regulated by the Copyright Law and the rights being infringed upon fell in the category of “other rights which shall be enjoyed by the copyright owners”. Therefore, the Court upholds Sina’s claim that Tianying Jiuzhou has infringed on its copyright and Sina’s claims that Tianying Jiuzhou shall cease infringement, pay damages and eliminate effects.

In this case, Sina also filed an unfair competition suit against Tianying Jiuzhou. In this regard, the Court holds that the sporting events broadcast authorization system of sports event organizers shall be protected under law, and sports event organizers are the proprietors of such rights. Sina claimed that Tianying Jiuzhou unfairly deprived it of its interests in broadcasting the games, diverted Sina users’ attention and website traffic, and made false and misleading advertisement regarding the source of the video services. These facts are consequences of the above mentioned infringement activities, thus the same facts, shall not be regulated by two different laws. Sina, an authorized party to broadcast the sporting events, has obtained remedies under Copyright Law for its infringed rights. In other words, the broadcasting activity has been regulated under Copyright Law, thus it is not necessary to be regulated again under Anti-unfair Competition Law. Therefore, the Court does not accept Sina’s claims regarding the unfair competition claim.

Sina claims an amount of RMB 10 million in damages. The Court holds that, the economic loss of Sina from depreciation expenses of servers, broadband, racks and hardware in broadcasting the games, including advertisement costs, are all reasonable. But such loss is calculated on the basis of the 2013 Season, which is quite different form the two CSL games in this case. The Court will calculate the damages on the basis of the two CSL games in this case.

According to the law, filing a complaint shall meet certain requirements, which include specific defendant(s), concrete claims, facts and reasons. From the above analysis, it is clear that Sina has relevant rights, and there is evidence to prove that Tianying Jiuzhou exercised Sina’s rights in broadcasting the games. Sina provided a specific defendant Tianying Jiuzhou at a specific address, and presented relevant facts to prove the legal relationship between the parties; Sina further submitted claims against Tianying Jiuzhou. Therefore, Sina’s complaint has met requirements under the law. The Court rejects Tianying Jiuzhou’s claims that Sina lacks the capacity to sue, the claims are unclear or the Defendant is incorrect.

According to article 13 of PRC Torts Liability Law, article 10(17), article 47(11) and article 49 of PRC Copyright Law, article 2 of Regulation on the Implementation of PRC Copyright Law, and article 4 of Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Network, the Court decides:

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26 1. the Defendant Tianying Jiuzhou shall cease broadcasting the CSL games that took place between March 1, 2012 and March 1, 2014;

2. The Defendant Tianying Jiuzhou shall make an announcement on the front page of its website iFeng.com (www.ifeng.com) for 7 consecutive days within 30 days after this decision takes effect, so as to eliminate adverse effects caused to the Plaintiff Sina (the content of the announcement shall be reviewed by the Court within 7 days after this decision takes effect, and if it is not implemented within the timeline, the Court will publish the major content of this decision on relevant media, and the Defendant Tianying Jiuzhou shall bear any such costs);

3. The Defendant shall pay an amount of RMB 500,000 in damages to the Plaintiff Sina within 10 days after this decision takes effect;

4. Reject any other claims of Sina.

If the Defendant fails to carry out the duty to pay relevant fees within the specified timeline in this decision, the Defendant shall, in accordance with article 253 of the PRC Civil Procedure Law, pay double interest for the debt for the period of deferred performance.

For the court acceptance fee of RMB 81,800, the Plaintiff shall bear RMB44,990 (already paid), and the Defendant shall bear RMB 36,810 (payable within 7 days after this decision takes effect).

The Parties, if unsatisfied with this decision, may file a petition for appeal to the Court within 15 days after receipt of this decision, along with sufficient copies of the petition for appeal, and appeal to Beijing Intellectual Property Court.

Presiding Judge: Lin Ziyin Judge: Li Zizhu Acting Judge: Peng Xinqiao

June 30, 2015

Court Clerk: Tan Yawen

TRANSLATION BY ANJIE LAW FIRM

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27 Sina.com, Plaintiff v. ifeng.com, Defendant

Chaoyang District People’s Court, Beijing

______

Brief of The Global Intellectual Property Center of the U.S. Chamber of Commerce ______

The Authors

The U.S. Chamber of Commerce is a business organization representing the interests of more than 3 million businesses of all sizes, sectors, and regions. The Global Intellectual Property Center (GIPC) of the U.S. Chamber was established in 2007. Today, the GIPC is leading a worldwide effort to champion intellectual property rights as vital to creating jobs, saving lives, advancing global economic growth, and generating breakthrough solutions to global challenges.

No counsel for a party authored this brief in whole or in part; and no person or entity, other than the authors, their members, and their counsel, made a monetary contribution intended to fund the preparation or submission of this brief.

Sports Broadcasting Valuable Contribution to Society

Sports broadcasting has made valuable contributions to society. It is a significant commercial endeavor that requires sizable investments, generates great economic value and supports the dreams of athletes around the world. In sports, according to the World Intellectual Property Organization (“WIPO”), broadcast and media rights are “now the biggest source of revenue for most sports organizations, generating the funds needed to finance major sporting events, refurbish sports stadia, and contribute to the development of sport at grassroots level.”1 Sales from broadcast rights and marketing rights represented the vast majority of revenue for the 2014

World Cup totaling U.S.$3.05 billion dollars2 and broadcast revenue accounted for

60% of the revenue for the Tour de France.3 Broadcasters paid U.S$1.7 billion for

1 “Broadcasting and Media Rights in Sport,” WIPO (available at: http://www.wipo.int/ip- sport/en/broadcasting.html). 2 “World Cup Brazil Will Generate $4 Billion for FIFA, 66% More Than 2010 Tournament,” Forbes (available at http://www.forbes.com/sites/mikeozanian/2014/06/05/the-billion-dollar-business- of-the-world-cup/). 3 Id.

the exclusive rights to broadcast the Beijing Olympic Games and “Beijing Olympic Broadcasting…deployed 6,000 staff, 1,000 cameras, 575 digital video tape recorders,

350 broadcast trailers and 62 outside broadcast vans.”4

Summary

As discussed below, around the world, broadcasts of sporting and other live events are recognized and protected as copyrightable works. As such, they are commonly afforded the protections provided for in the Berne Convention and the WIPO Copyright Treaty, including: “the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.”5

This brief urges this court to recognize that sporting event broadcasts are sufficiently original to establish copyright protection, and correspondingly to recognize the copyrightability of those broadcasts under Chinese law.

Argument

I. Broadcasts of Sporting Events are Copyrightable Under Chinese Law

a. China’s Copyright Act

Article 3(6) of China’s Copyright Act provides copyright protection for “cinematographic works and works created by a process analogous to cinematography.” In addition, order to support copyright protection, such works must exhibit some minimum level of originality. There are conflicting views in

4 Id. 5 WIPO Copyright Treaty, Art. 8 (1996) (Chinese language version available at: http://www.wipo.int/treaties/zh/text.jsp?file_id=295161).

China at this time as to whether broadcasts of sporting events6 are copyrightable.7 The result has been to narrow the legal protection available in China for broadcasts of sporting events, which in turn has denied the sports leagues and broadcasters legitimate income for the right to retransmit the work they have produced. However, there is nothing in Chinese law to prevent the recognition of the proper copyrightability of such broadcasts. This Court need only apply existing law to the facts – namely the inclusion of numerous original and creative aspects of sporting event broadcasts – to conclude that such broadcasts are copyrightable in China.

b. Originality of Sports Broadcasts

It is readily apparent that live sports broadcasts involve sufficiently original expression to support copyright protection as a result of the multitudinous creative and aesthetic choices that go into their production. Among the many such creative choices are the placement and operation of multiple television cameras, editorial choices that inform the selection of camera equipment, camera angles, zooms, commentary, interviews, the choice and inclusion of story lines that add to the context and entertainment value of the broadcasts, replays, clips from other broadcasts, on-screen graphics, and special segments before the game, during the breaks and halftime, and after the game. All of these elements are production enhancements that require original aesthetic, creative, and artistic choices that transcend the actual game itself, and are therefore sources of original copyrightable expression. The Authors respectfully submit that this Court should apply China’s

6 There is wide consensus in China that the sporting event itself is not copyrightable as is the case in the United States as well. However this case is about the broadcasts of the sporting event and whether the broadcast is copyrightable. 7 “How Should China Respond to Online Piracy of Sports Telecasts? A Comparative Study of Chinese Copyright Legislation to the US and European Legislation,” Song, Seagull Haiyan, U. of Denver Sports and Ent. L.J. (Volume IX, 2010) at 10. A complete version of the article in Chinese was included in Chapter 3 of《中国版权新问题》（New Challenges of Chinese Copyright Law）published by the Commercial Press 《商务印书馆》 in 2011. An abridged version of this article was published in China, “中国如何应对体育赛事转播的网络盗版问题”("How should China Respond to Online Piracy of Sports Telecasts"), Chinese Patent & Trademark Law, Volume 3, 2010 and in《论中国如何应对体育赛事转播的网络盗版问题》, Peking University Internet Law Journal in 2011 in Volume 2.

Copyright Act to these facts and reach the conclusion that broadcasts of sporting events are copyrighted works in China, as they are elsewhere in the world.

c. Sports Broadcasts are Properly Categorized as Protectable Cinematographic Works or Works Created in a Way Similar to Cinematography under the Copyright Act

China’s Copyright Act already is structured to provide copyright protection to sporting event broadcasts. The Act provides full copyright protection to “cinematographic works or works created in a way similar to cinematography.” Live sports broadcasts qualify as cinematographic works or works created in a way similar to cinematography. Analyzing the similar question of whether music videos are “cinematographic works or works created in a way similar to cinematography,” Chinese courts have held that they are because music video production involves creative contributions from producers, the director, camera operators, editors, performers, fashion designers, and other creative individuals involved in the production.8 This reasoning applies equally to sports broadcasting, which involves substantial creative contributions from producers, directors, camera operators, graphic designers, lighting technicians, commentators (who are analogous to performers in other cinematographic works) and many other creative professionals who contribute to produce a polished, professional final product.

The development of Chinese copyright law supports this interpretation of sports broadcasts as cinematographic works or works created in a way similar to cinematography. The Copyright Act of 1990 afforded protection to “cinematographic, television and videographic works,” which includes television broadcasts of sports. The current Copyright Act (2002, 2010) intentionally broadened that subject matter even further to cover all “works created in a way

8 See Guangzhou Jingangyuan Karaoke Club Ltd v. Warner Music Hong Kong Limited Guangdong High Court 2005-Yuegaofa minsan zhongzi No. 357.

similar to cinematography,” which includes any works created through a production process that involves creative direction akin to that used in producing cinematographic works, such as directorial oversight, creative camerawork and angles, graphics, and editing. At least one publicly released draft of new amendments to the Copyright Act provides that copyright protection extends to the even broader category of all “audiovisual works.” Thus, the trend of legal developments in copyright law clearly demonstrates the law’s steadily increasing receptivity to the full copyright protection of sports broadcasts.

d. Olympic-Related Law in China Shows Protection of Sporting Event Broadcasts is Consistent with the Chinese Legal System and Sound Policy

There is nothing in China’s legal system that prevents recognition of the copyrightability of broadcasts of sporting events. Quite the contrary, similar protection already has been applied successfully in the particular circumstance of the 2008 Beijing Olympic Games.

The Beijing Regulations on the Intellectual Property Protection of Olympics-Related Intellectual Property Rights provided broad protection, including against unauthorized retransmission of Olympic sports broadcasts online.9 These rights were used to support exclusive licenses for the right to broadcast the Olympic

Games and select authorization for retransmission of those telecasts online.10 Further, a special enforcement campaign was undertaken against unauthorized transmissions of Olympic event broadcasts, with a reported success rate of over

90%.11

9 Song at 18. 10 Id. at 19. 11 Id. at 19-20 (citations omitted).

China already has determined that providing strong protection for sporting event broadcasts is appropriate and good public policy. This Court need only apply the facts of how sports broadcasts are produced, generally, to the existing framework of the Copyright Act to reach the conclusion that broadcasts of sporting events are copyrightable.

II. Broadcasts of Sporting Events are Copyrightable in Other Major Jurisdictions

As in China, other major jurisdictions require a minimum level of creativity in order for copyright protection to apply to a work. These jurisdictions have determined that broadcasts of sporting events are sufficiently creative to qualify as copyrightable. International practice in this area is also provided for consideration of the court consistent with Article 142 of the General Principles of the Civil Law, which states, “International practice may be applied on matters for which neither the law of the People's Republic of China nor any international treaty concluded or acceded to by the People's Republic of China has any provisions.”

a. United States

The United States requires a minimum threshold of creativity to support copyright protection. 12 In the case of Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,13 the Supreme Court of the United States held that the terms “authors” and “writings” in the Constitutional grant of power subsume a requirement that in order for copyright protection to arise, the work must exhibit “a modicum of creativity.”14 This is settled law in the United States.

12 The threshold of creativity has been interpreted in the United States to arise from the U.S. Constitution. The U.S. Constitution authorizes Congress to “secure for limited Times to Authors…the exclusive Right to their respective Writings.” U.S. Const. Art. I, sec. 8, cl. 8. 13 499 U.S. 340 (1991). 14 Id. at 346(citing The Trade-Mark Cases, 100 U.S. 82 (1879)).

The application of this requirement to the broadcast of sporting events has not been difficult. The U.S. Congress, courts, and the U.S. Copyright Office all have recognized the creative aspects of sports broadcasts and, thus, their copyrightability.

In 1976, the United States enacted a general revision of its Copyright Act. Accompanying that law was an extensive and thorough set of studies and reports, which explained the rationale and intended effect of the new law. The copyrightability of sporting event broadcasts was specifically addressed:

When a football game is being covered by four television cameras, with a director guiding the activities of the four cameramen and choosing which of their electronic images are sent out to the public and in what order, there is little doubt that what the cameramen and the director are doing constitutes “authorship.”15

If anything, that statement from 1976 is even more applicable today. With the advent of digital technologies for computer graphics, enhanced close-ups, and super slow replays, just to name a few. All of these aspects of sports broadcasts are creative expressions that are not a part of the game itself, but rather additional production elements that enhance the viewing experience dramatically.

Courts in the United States consistently have reached the same conclusion. In Balt.

Orioles, Inc. v. Major League Baseball Players Ass’n,16 a Federal appellate court affirmed the trial court’s holding that telecasts of Major League Baseball games are copyrightable. On the issue of the creativity involved in the broadcast, the court held: [C]ourts long have recognized that photographing a person or filming an event involves creative labor…The many decisions that must be made during the broadcast of a baseball game concerning camera angels, types of shots, the use of instant replays and split screens, and

15 H. Rep. 94-1476 at 52 (Sept. 3, 1976). 16 805 F.2d 663, 668 (7th Cir. 1986).

shot selection similarly supply the creativity required for the copyrightability of the telecasts.17

Another Federal court held that while “an NBA game does not fall within the subject matter of copyright…” it was “uncontested that these broadcasts, unlike the NBA games themselves, are subject to copyright protection” in NBA v. Sports Team

Analysis & Tracking Sys.18 In NFL v. Primetime 24 Joint Venture,19 a Federal appellate court affirmed the trial court ruling that unauthorized retransmission of broadcasts of NFL (American football) games was an infringement of copyright.

In yet another case, the Second Circuit Court of Appeals held that “[NBA] broadcasts are protected under copyright law… [due to] the expression or description of the game that constitutes the broadcast.”20

The District Court in the Southern District of New York followed the Baltimore

Orioles precedent of the 7th Circuit in Big Fights v. Ficara, a case involving copyright protection related to a boxing match, holding “the filming of an athletic event is a work separate from the event itself and that the film is subject to copyright.”21

In the above-cited cases, the U.S. Copyright Office had registered the copyright claim in copies of the relevant sporting event broadcasts, demonstrating the routine practice of that agency to recognize the copyrightability of sports broadcasts. Indeed, Copyright Office studies have included a discussion about copyright licensing practices relating to broadcasts and retransmissions of sporting events in the context of the licensing practices for television programming, generally.22

17 Id. 18 939 F. Supp. 1071, 1093 (S.D.N.Y. 1996). 19 211 F.3d 10 (2d Cir. 2000). 20 NBA v. Motorola, 105 F.3d 841, 847 (2d Cir. 1997)(holding that taking uncopyrightable elements, such as facts, did not infringe the copyright in the broadcast). 21 40 U.S.P.Q.2d (BNA) 1377, 1381 (S.D.N.Y. 1996) 22 “Satellite Television Extension and Localism Act §302 Report,” A Report of the Register of Copyrights at 27-28 (2011)(available at http://copyright.gov/reports/section302-report.pdf).

The leading copyright treatise in the United States joins this consensus. That treatise instructs that, “there is no doubt that a telecast, for instance, of an athletic event, qua motion picture, can qualify for copyright protection.”23

American legislative, administrative, and judicial bodies are in agreement, as are academic commentators – broadcasts of sporting events can be and are sufficiently creative to support copyright protection.

b. European Union

In February 2014, the University of Amsterdam issued a study that had been commissioned by the European Commission, titled, “Study on Sports Organisers’

Rights in the European Union.”24 This study found that, like China and the United States, copyright protection in the European Union is conditioned on a showing of at least some level of originality.25 The study further found that “audiovisual recordings of football games, as usually broadcast on TV, will normally amount to a work of authorship protected by copyright law, usually as a film or cinematographic work.”26 The study continued, “[o]nce the audiovisual work had been created, its unauthorized reproduction, distribution, or communication to the public will constitute a copyright infringement.”27 The study found this to be the case in national law across Europe.28

Conclusion

23 1 M. Nimmer & D. Nimmer, Nimmer on Copyright §2.09[F]. 24 EAC/18/12 (available at: http://ec.europa.eu/sport/news/2014/docs/study-sor2014-final- report-gc-compatible_en.pdf). 25 Id. at 51. 26 Id. 27 Id. at 52-53. 28 Id. at 51(noting the sole exception appeared to be a court decision in Sweden, which the study described as “an exceptional and isolated case.”).

The foundation of copyright law in China, the United States, and Europe all share the common principle that copyright must arise from – and serve to incentivize and protect – some level of originality in the works at issue. In the United States and Europe, this principle has led to the uncontroversial, longstanding conclusion that broadcasts of sporting events are copyrightable. Sporting event broadcasts also have the requisite originality to receive full copyright protection under existing Chinese law. We urge this Court to act on the opportunity to make a valuable contribution to the development of professional sports in China and resolve this issue through the recognizing the copyrightability of sports broadcasts for the reasons set forth above.

38 Yuexiu District People’s Court, Guangzhou of Guangdong Province People’s Republic of China

Civil Judgment

(2016) Yue-0104-Min-Chu-Zi No. 42726

Plaintiff: CCTV Sports Entertainments Co., Ltd Domicile address: Floor 16, Building 1, Compound 15, Guanghua Road, Chaoyang District, Beijing Legal representative: Zheng Menghui (General Manager) Litigation representative entrusted: Zhu Xiaoyu, lawyer from Dowway & Partners Law Firm (Beijing) Litigation representative entrusted: Li Ping, lawyer from Dowway & Partners Law Firm (Beijing) vs Defendant: Guangzhou Broadcasting Network Domicile address: 231 Huan Shi Zhong Road, Yuexiu District, Guangzhou City of Guangdong Province Legal representative: Cui Songdong (Managing Director) Litigation representative entrusted: Zhao Hongbin, lawyer from Kingpound Law Firm (Guangzhou) Litigation representative entrusted: Hu Liandi, lawyer from Kingpound Law Firm (Guangzhou)

The Court filed the case on December 20, 2016 regarding the dispute of copyright infringement between Plaintiff CCTV Sports Entertainments Co. Ltd. and Defendant Guangzhou Broadcasting Network, and applied the ordinary procedure by law to hear the case in public. Plaintiff’s litigation representative Zhu Xiaoyu and Defendant’s litigation representatives Zhao Hongbin and Hu Liandi appeared in court and took part in the proceedings. The Court has now completed the hearing of the case. 1

39 In this case, Plaintiff submitted the following claims to the Court: 1. Order Defendant to pay Plaintiff economic loss at the amount of RMB 6,000,000; 2. Order Defendant to pay Plaintiff’s reasonable costs at the amount of RMB 230,000 arising from stopping the former’s act of infringement. Facts and causes include: The Olympic Games organized by the IOC are the largest-scale and most influential comprehensive international sporting events in the world today. All the Olympic TV programs including the artistic performances of the Olympic Games’ opening and closing ceremonies as well as various broadcasts of all sports competitions have attracted the widespread attention of sports enthusiast and TV audience all over the world, ensuing high audience ratings and economic value. Upon receiving the authorization from the IOC and CCTV, Plaintiff as the latter’s wholly-owned affiliated institution is the holder of the exclusive TV broadcasting rights within the territory of the People’s Republic of China for broadcasting the programs of the 31st Rio Summer Olympic Games (hereinafter referred to as the “31st Rio Olympic Games”) through its radio and TV channels. It has the right to license other organizations to broadcast the above-mentioned TV programs through its radio and TV channels, as well as the right to take action for rights protection on its own initiative against the unlicensed TV broadcasting of the above-mentioned programs and to receive damages from the infringer thereof. Unlicensed by Plaintiff and without authorization, Defendant broadcasted a large amount of the TV programs of the 31st Rio Olympic Games on its “Sports Channel” during and after the 31st Rio Olympic Games, including the opening and closing ceremonies programs as well as all kinds of sporting events, exceeding 300 hours for the cumulative broadcasting time. Defendant’s act has severely infringed Plaintiff’s exclusive copyrights (including the broadcasting rights for the above-mentioned TV programs and the right as the broadcasting organizer through the CCTV’s radio and TV signals), causing Plaintiff enormous economic loss. Defendant argued and disagreed with Plaintiff’s claims. First, the opening and closing ceremonies programs of the 31st Rio Olympic Games asserted in Plaintiff’s claim were cinematographic works shot in a method similar to film production, while the sports events, Olympics promotional videos and auxiliary programs mentioned by Plaintiff are not the works protected by the Chinese copyrights. As competitive sports activities, sports events display such sporting concepts as the strength, skills, and “higher, faster and stronger”. Technical and competitive strategies related to the sports events only belong to the realm of thoughts. Images of sports events on live broadcast or rebroadcast are not a creation in nature, but the events documentation and display; and they are the objective and true records of the competition process. Therefore, it is very difficult to assert the thoughts conveyed or the aesthetics created as the works. The Olympics promotional videos and auxiliary programs mainly reflected simple selection and editing of fragments from competitions, host cities and Olympic stadiums from 2

40 the previous Olympic Games, failing to display much labour on the part of producers in terms of lay-out or creativity, and hence do not constitute the works. Second, Defendant did not use Plaintiff’s promotional videos and auxiliary programs (except for Plaintiff’s Olympic advertisement) in relation to this case, but rather broadcasted other programs that it selected and refined by itself, and thus Defendant’s broadcasting act did not constitute an infringement upon Plaintiff’s promotional videos and auxiliary programs. Third, Defendant’s infringement upon Plaintiff’s copyrights showed lower subjective malice. Before the opening ceremony of the 31st Rio Olympic Games, Defendant contacted Plaintiff and discussed the matter of purchasing the broadcasting right for the 31st Rio Olympic Games, but failed to reach an agreement in this regard. Defendant’s broadcasting of sports events of the 31st Rio Olympic Games was based on the special cultural need of its audience in a Cantonese-speaking region; it did not enlist new advertisements specific to the broadcast of sports events during the broadcasting period, and consequently has not ensued illegal incomes. Moreover, Defendant’s time of broadcasting the said programs lagged behind that of Plaintiff’s, and [Defendant’s] programs were in fact a rebroadcast in relation to Plaintiff’s broadcasting time. Furthermore, the broadcasting right of sports events is not a statutory one but rather on the contractual basis. In the circumstances where Plaintiff did not sign a license contract with Defendant, there is no legal basis for Plaintiff to claim its economic loss which is estimated in the light of the license fee standard agreed with a third party unrelated to this case. In summary, Plaintiff fails to present its supporting evidence for its actual loss and reasonable costs paid for stopping Defendant’s act of infringement, while Defendant is only a media entity with a regional, prefecture-level- city coverage, and there is no factual and legal basis for Plaintiff’s claim at the amount of RMB 6,000,000 as the infringement damages. As a result, Defendant requests the Court to determine at its discretion the amount of compensation within the statutory range of RMB 500,000.

[Page 4-11 will be coming and inserted here soon]

During the trial, Defendant stated that it negotiated with Plaintiff before and during the Rio Olympic Games regarding the authorization of the TV Programs in question, but failed to reach an agreement on the licensing fee. Moreover, Plaintiff submitted the following evidence to the Court in order to substantiate its reasonable costs occurred thereof: (1) Invoice of lawyer’s fee (at the amount of RMB 100,000), (2) Two receipts of E-ticket (Schedule) for Air Transport (RMB 3,180 in total), (3) Six pieces of fixed-amount invoices of Shanghai Municipal Administration of State Taxation (RMB 80 in total), (4) One piece of ordinary VAT invoice of Fujian Province (Service Item: Fares for Passenger Transportation Service, at the amount of 3

41 RMB 600), and (5) One piece of ordinary VAT invoice of Guangdong Province (Service Item: Lodging fee, at the amount of RMB 528). The Court holds that, based on the facts of the case as well as Plaintiff’s claims and Defendant’s defense, the focus of disputes lies in the following aspects: (I) Have the TV programs of the 31st Rio Olympic Games in question constituted the works protected by the Copyright Law of the People’s Republic of China (hereinafter referred to as “the Copyright Law”)? (II) Which rights are Plaintiff entitled to in this case? (III) Has Defendant’s act constituted the copyright infringement? (IV) If Defendant’s act has infringed Plaintiff’s copyright, how to determine the amount of damages? (I) Have the TV programs of the 31st Rio Olympic Games in question constituted the works protected by the Copyright Law of the People’s Republic of China?

In this case, Plaintiff claimed that the TV programs of the 31st Rio Olympic Games could be divided into the following components according to the difference of contents: The opening and closing ceremonies, sports events, Olympic promotional videos and related auxiliary programs. In accordance with Article 2 of the Regulations on the Implementation of the Copyright Law of the People’s Republic of China (hereinafter referred to as “the Implementation Regulations”), the term “works” in the Copyright Law refers to “the original intellectual creations in the literary, artistic and scientific domains, in so far as they are capable of being reproduced in a certain tangible form.” The opening and closing ceremonies programs involved in the case are composed of such sessions as the on-the-spot artistic performances, speeches delivered by the officials of the International Olympic Committee and firework display at the opening and closing ceremonies of the Olympic Games. Apart from the on-the- spot video shooting and recording of the ceremonies, the programs also consisted of preset pictures, having formed a group of continuous and dynamic images full of beautiful and smooth sense supported by the on-the-spot shooting pictures, which reflected the theme of the Olympic spirits with certain originality. Therefore, such programs should belong to the works protected by the Copyright Law in China. In view that the programs of the opening and closing ceremonies are a series of relevant pictures coupled with the sound produced through certain medium and can be broadcasted with the assistance of proper device for continuous projection, they should be identified as the works created in a method similar to film production. What the programs sports events display is the sports strength and skills rather than the goal of literature and art or scientific beauty; therefore, they cannot constitute the works for the purpose of the Copyright Law. Such auxiliary programs as the “Brightdairy MOMCHILOVTSI Medal Tally” and “LENOVO Sports Games Forecast” are only for medal ranking or game forecast, and they are 4

42 not original and do not constitute a work protected by the Copyright Law. As for such programs as the “FAW Toyota Olympic in Rio”, “Winners’ Speeches”, “Olympic Games Participants’ Speeches” and “Midea Meets with Top Athletes”, they involved the director’s program design, scenic arrangement and guidance to the host or interviewer from the facial expression to action and language; the photographer’s controls on the shooting angle, choice of shooting distance, and light and shade of the shooting according to the requirements of the director; and the producer’s use of tools to edit and lay out video clips in post-production. All these have reflected the creator’s unique perspective as well as personalized selection and judgment of the programs, which have complied with the originality requirement of the Copyright Law, and thus fall within the protective scope of the works created in a way similar to film production as provided by the Law. The programs such as the “Dongfeng Nissan Teana Light of Victory”, “Classic Collections of Olympic Games”, “the 31st Rio Olympic Gold Medals Event Clips Collection”, “Mengniu Dairy to Rio”, “AUDI SPORT Only for Top Athletes’ Competition”, “Erie China’s Pride” and “Coca-Cola Now for Gold Medals” were the wonderful picture collections of the Olympic Games, having reflected the compilers’ unique ideas and concepts in selection and arrangement with originality, and belong to the collection works protected by the Copyright Law. Therefore, the Court will not support Plaintiff’s claim that the programs mentioned above belong to the works created in a way similar to film production, as it has no relevant factual and legal basis. Given that Plaintiff failed to submit the evidence to prove its asserted right for such TV programs as the “Rio Passion”, “GF Bank Swiping the New Dream”, “Competition and the Olympic Games in Rio”, “China Telecom Tianyi 4G + Tianyi On-the-Spot” and “Introduction to the 31st Olympic Stadiums”, the Court is unable to determine if the above-mentioned TV programs constituted the works protected by the Copyright Law, and accordingly, it will not support Plaintiff’s claim on these (five) programs. (II) Which rights are Plaintiff entitled to in this case? In accordance with the articles about Olympic Games organization in the Olympic Charter or related protocols on Olympic events, the IOC enjoys all the rights and interests on the audio and video works in relation to the previous Olympic Games. In the light of the Letter of IOC on the Confirmation of Media Rights of China Central Television (CCTV), CCTV enjoys the exclusive rights to broadcast the sports events of the Rio Olympic Games in Chinese Mandarin and Cantonese within the territories of the People’s Republic of China. Such rights include the right to all the programs on Rio Olympic events through cable, satellite, terrestrial and broadband transmissions, as well as live, delayed and repeated program broadcasting through the basic, comprehensive, auxiliary and unilateral TV signals, audio signals and event 5

43 collections of the Rio Olympic Games, and the right to authorize a third party in China to exercise the above-mentioned rights hereof. As a third party authorized by the IOC, Plaintiff enjoys the right to sue the act of infringement and unfair competition except those cyber infringement and unfair online competition. Moreover, CCTV enjoys the right of broadcasting organization to its TV programs on the 31st Rio Olympic Games. Furthermore, in the light of the Letter of Authorization issued by the CCTV, it has authorized Plaintiff to exclusively broadcast all the TV programs of the 31st Rio Olympic Games in any form through its broadcast channels (including but not limited to the real-time, delayed and scheduled broadcast), and to prohibit others in its (CCTV) name from exercise of the above-mentioned rights. In addition, CCTV authorized Plaintiff the right to investigate legal liability on its own initiative for the infringement of the above-mentioned rights and to receive the payment of damages from the infringer thereof. In summary, the Court holds that Plaintiff enjoys the right to broadcast TV programs of the 31st Rio Olympic Games, the works in question in this case, as well as the right of broadcasting organization to TV programs of the 31st Rio Olympic Games broadcasted by the CCTV. Therefore, Plaintiff has the right to initiate an action against Defendant in this case. (III) Has Defendant’s act constituted the copyright infringement? In accordance with Paragraph 11 of Article 10 of the Copyright Law, the right of broadcast refers to the right to publicly broadcast or communicate a work to the public by wireless means, to communicate a broadcast work by wire or relay means to the public, and to communicate a broadcast work by a loudspeaker or by any other analogous tool used to transmit symbols, sounds or pictures to the public. Moreover, Paragraph 1 of Article 48 states that, the act of reproducing, distributing, performing, showing, broadcasting, compiling or communicating a work created by another person to the public through an information network without prior approval constitutes the infringement. In this case, according to the “Report on Detailed Program and Advertising Broadcasting List” issued by the CVSC-TNS RESEARCH Market Research Co., Ltd. (hereinafter referred to as the “CTR”), Guangzhou TV Sports Channel broadcasted the TV programs of the 31st Rio Olympic Games in question between August 6 and September 9, 2016, through which Plaintiff could claim its rights. During the trial, Defendant confirmed that the Guangzhou TV Sports Channel as its channel broadcasted the above-mentioned programs provided by the CCTV.

Without Plaintiff’s permission, Defendant transmitted TV programs of the 31st Rio Olympic Games broadcasted by the CCTV through its Sports Channel, which infringed Plaintiff’s rights to its works, that is, the right to broadcast TV programs of the 31st Rio Olympic Games, except those programs of sports events, “Rio Passion”, “GF Bank Swiping the New Dream”, “Competition and the Olympic Games in Rio”, “China Telecom Tianyi 4G + Tianyi On-the- 6

44 Spot” and “Introduction to the 31st Olympic Stadiums”, “Brightdairy MOMCHILOVTSI Medal Tally” and “LENOVO Sports Games Forecast”. Consequently, Defendant shall bear the civil liability for Plaintiff’s economic loss in accordance with the law. In accordance with Item 1, Paragraph 1 of Article 45 of the Copyright Law, a radio station or television station shall have the right to prohibit the act of rebroadcasting its radio or TV programs without permission. In this case, Defendant rebroadcasted the TV programs of the 31st Rio Olympic Games through its Sports Channel without permission, and has therefore infringed Plaintiff’s right of broadcasting organization. Accordingly, Defendant shall bear the civil liability for compensation in accordance with the law.

Defendant defended that its programs broadcasted on the “Promotional Videos for the 31st

Rio Olympic Games”, “Scenery of the 31st Olympic Games Cities”, “Introduction to the 31st Olympic Games Stadiums”, “Rio Passion” and “Competition and the Olympic Games in Rio” were self-produced. It submitted the supporting evidence in a CD-ROM, but that CD did not contain the content of such programs as the “Scenery of the 31st Olympic Games Cities”, “Rio Passion” and “Competition and the Olympic Games in Rio”. Moreover, there was no indication of Defendant’s name in the videos “Publicity Film for the Olympic Games” and “Introduction to the Olympic Games” contained in the CD-ROM, which means Defendant’s evidence is not sufficient to prove that the TV programs broadcasted were self-produced. Therefore, the Court will not admit Defendant’s defense. (IV) If Defendant’s act infringed Plaintiff’s copyright, how to determine the amount of damages? In view of the fact that both parties failed to prove the actual loss suffered by Plaintiff or benefits obtained by Defendant arising from the act of infringement, the Court has taken the following factors into overall consideration: The TV programs of the Rio Olympic Games in question included the opening and closing ceremonies as well as a large number of related auxiliary programs, which have had greater popularity and influence on the public. In the context of failing to reach any agreement on the license of broadcasting or rebroadcasting TV programs after communication, Defendant broadcasted a large number of TV programs in question in this case without Plaintiff’s authorization, and therefore had severe subjective malice. The Court has referred to the license fee of RMB 6,000,000 that Plaintiff charged from the Great Sports Media Co., Ltd. and Beijing TV Station for non-exclusive radio and TV broadcasting rights of broadcasting the event highlights programs of 2016 Rio Olympic Games, considered the differences between the Guangzhou TV Sports Channel operated by Defendant and the channels operated by the above-mentioned licensed counterparts in coverage, audience ratings and coverage, and finally determines at its discretion that Defendant shall compensate 7

45 Plaintiff’s economic loss at the amount of RMB 3,000,000. With regard to the reasonable costs claimed by Plaintiff, the Court awards at its discretion, after considering the actual situation of the case and lawyers’ workload, that Defendant shall pay the costs at the amount of RMB 30,000 based on the facts that Plaintiff employed lawyers and paid relevant costs for this case. In summary, the Court makes the following judgment in accordance with Item 11 of Paragraph 1 of Article 10, Article 45, Item 1 of Article 48 and Article 49 of the Copyright Law of the People’s Republic of China, and Articles 25, 26 and 28 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Disputes: 1. Defendant shall compensate Plaintiff economic loss at the amount of RMB 3,000,000 within ten (10) days from the date that the judgment becomes legally effective; 2. Defendant shall compensate Plaintiff reasonable costs at the amount of RMB 30,000 arising from stopping the act of infringement within ten (10) days from the date that the judgment becomes legally effective; 3. Dismiss Plaintiff’s other claims. Where Defendant fails to perform the obligation of monetary payment, it shall pay Plaintiff double interest on the debt during the period of deferred performance in accordance with Article 253 of the Civil Procedure Law of the People’s Republic of China. The case acceptance fee is RMB 55,410, and Plaintiff and Defendant shall bear the costs of RMB 14,230 and RMB 41,180 respectively. Where the parties dissatisfy with the judgment, they may submit an appeal in writing to the Court, within 15 days from the date of service of the judgment, and provide copies of the appeal in the light of the number of the other parties involved to the Guangzhou Intellectual Property Court. Where the parties appeal, they shall pay in advance the acceptance fee for appellate case to the Guangzhou Intellectual Property Court, within seven (7) days from the date of receiving the notice of paying the litigation fee by the people’s court, which is calculated on the basis of the amount of appeal arising from dissatisfying the judgment of first instance. Where the parties fail to make the payment within the prescribed period, the case will be handled as automatic withdrawal.

Presiding Judge Li Wenjun

46 People’s Assessor Lin Jing

People’s Assessor Wu Caihui

October 20, 2017

(Court’s official seal affixed on the date) This copy is identical with the original one. Court clerk Liu Jialin

47 Hangzhou Xihu District People’s Court

Civil Judgment

(2009) Hang Xi Zhi Chu Zi No.113

Plaintiff: CCTV.com, with its domicile at Buildings 1 and 2, 10 West 3rd Ring Road, Haidian District, Beijing Legal representative: Wang Wenbin, General Manager Attorney: Huang Huan and Han Junfang (special attorney), (Shanghai) Tenwen Law Firm Defendant: Hangzhou Sanji Media Co., Ltd, with its domicile at Room 1205, Tower A, Huaxing Shidai Plaza, 478 Wensan Road, Xihu District, Hangzhou City, Zhejiang Province Legal representative: Wang Ren, Chairman Attorney: Xie Chunlin and Yang Ji (Special Attorney), Zhejiang L&H Law Firm The plaintiff CCTV.com (“CCTV.com”) lodged a complaint to this court on June 4, 2009 against the defendant Hangzhou Sanji Media Co., Ltd (“Sanji Media”) for an allegation of copyright infringement. After examination, this court accepted the complaint and established a collegiate panel on the day of acceptance and openly heard the case on August 17, 2009. Present at the hearing were the plaintiff’s attorneys Huang Huan and Han Junfang and the defendant’s legal representative Wang Ren and its attorney Yang Ji. The case has now been trialed and closed. The plaintiff complained as follows: on March 2, 2009, the plaintiff discovered that the defendant was providing the public with online VOD service for the 2009 CCTV Spring Festival Gala Evening on its website www.boosj.com. In fact, however, the plaintiff has already been granted by CCTV an exclusive right of information communication via internetwith regard to the gala. Therefore, the defendant’s communicating the program without authorization of CCTV constituted a severe infringement of the plaintiff’s legal rights and interest and caused a major economic loss to the plaintiff. Therefore, according to the Copyright Law of the People’s

48 Republic of China and other laws concerned, the plaintiff requested this court to order the defendant: 1. to immediately stop infringing the plaintiff’s copyright and stop providing the online VOD service for the program involved; 2. to openly apologize to the plaintiff by making a statement on the front page of its website and China TV Newspaper; 3. to pay to the plaintiff 1 million yuan as damages to its economic loss and 50,000 yuan as compensation for its expenses incurred in investigating and lodging a complaint for the infringement, which add up to a total of RMB 1.05 million yuan; and 4. to bear all the litigation expenses of this case. In response, the defendant argued as follows: 1. Existing evidence can not prove CCTV’s copyright over the 2009 Spring Festival Gala Evening; therefore, CCTV.com’s claim that it exercised the copyright concerned upon authorization does not hold water, because it did not have the qualifications of subject as the plaintiff. 2. As the notarization procedures are illegal, the notarial certificate can not evidence Sanji Media’s infringement of the copyright concerned. Because the plaintiff does not enjoy any copyright over the 2009 Spring Festival Gala Evening, the subject matters subjected to notarization are of no interest to the plaintiff and the notarial certificate issued by Shanghai Jing’an District Notary Public Office is illegal and should be declared ineffective. 3. As the copyright holder failed to fulfill the obligation of information, Sanji Media should not bear the compensation liabilities. According to the safe harbor principle established in Articles 14 and 23 of the Regulation on Protection of the Right of Information Communication via Internet, the right holder shall deliver a written notice to the internet service providers to demand deletion of the infringed works or disconnection, but Sanji Media has not yet received any written notice of this kind. Moreover, there are no more video of the 2009 Spring Festival Gala Evening on the website run by the company now. 4. The amount of compensation requested by the plaintiff lacks factual and legal bases and should be rejected. In fact, a majority of the videos on the website run by the defendant are uploaded by netizens rather than provided through the P2P technology. However, in order to prove the facts alleged, the plaintiff submitted to this court the following evidence:

49 Group 1 (Right-related evidence): 1. Genuine DVD of the 2009 CCTV Spring Festival Gala Evening To prove that the 2009 Spring Festival Gala Evening was produced and broadcast by CCTV 2. Copyright Notice issued by CCTV on July 22, 2008 To prove that CCTV.com, upon authorization of CCTV, has obtained such exclusive copyright as the right of information communication via internetregarding the 2009 Spring Festival Gala Evening Group 2 (Infringement-related evidence): 3. Evidence preservation notarial certificate (2009) Hu Jing Zheng Jing Zi No.885 issued by Shanghai Jing’an District Notary Public Office To prove the fact that Sanji Media illegally communicated the 2009 Spring Festival Group 3 (Compensation-related evidence): 4. Technical Cooperation Agreement on Live Video Broadcasting via Internet To prove that CCTV.com authorized the third party-Beijing Unioncast-to broadcast the Spring Festival Gala Evening live via internet with a licensing fee in the amount of RMB 1 million yuan. 5. Evidence that the receiver of the licensing fee is CCTV.com To prove that Beijing Unioncast has actually paid RMB 1 million yuan licensing fee to CCTV.com Group 4 added after hearing (Right-related evidence): 6. Letter of Authorization issued by CCTV on April 20, 2009 To prove that CCTV.com, upon authorization of CCTV, has obtained such exclusive copyright as the right of information communication via internetfor the gala concerned. In an attempt to prove the facts it claims, the defendant Sanji Media also submitted to this court the following evidence: 1. A brief description of the website www.boosj.com To prove that the website run by the defendant is a service platform providing its

50 users with uploading spaces and technologies, does not upload content directly, and attaches great importance to the protection of intellectual property rights and has already established a copyright dispute settlement mechanism. 2. Cooperation agreement and price schedule To prove the current price of video copyright trading The evidence submitted by the plaintiff and defendant has undergone cross-examination procedures in the hearing, and the opinions of both the parties concerned and this court’s opinions on the evidence are stated as follows: I. Evidence submitted by the plaintiff The defendant has no objection to the genuineness and legitimacy of Evidence 1, the DVD submitted by the plaintiff, but has objection to the content it proves, claiming that if CCTV enjoyed copyright to the works involved, it shall produce the agreements it signed with such right holders as the original copyright holders and performers. In respect to Evidence 2, the copyright notice, and Evidence 6, the letter of authorization, the defendant has no objection to their genuineness and legitimacy, either, but has objection to their relevancy and the content they prove. In this case, the defendant argues, because CCTV.com failed to submit effective evidence proving that it was an authorized copyright holder, it is not an interested party to this case and the notary public office should not accept its application for notarization; moreover, the content of the notarial certificate is illegal in that the certificate was not stamped with a paging seal, hence the illegitimacy of the expressive form of the evidence. In addition, the defendant has no objection to the genuineness and legitimacy of Evidence 4 and 5 and the payment voucher of the licensing fee, but has objection to their relevancy, alleging that the evidence above can only prove the fact that CCTV had signed an agreement with a third party in 2008, but can not serve as the basis of compensation in this case in that the amount of licensing fee in that agreement is not comparable to this case. As the defendant has no objection to the genuineness of the plaintiff’s Evidence 1, 2, 4, 5 and 6, this court ascertains that the evidence said has evidential effect, but whether they have the probative force claimed by the plaintiff requires further

51 analyses based on their content. In respect to Evidence 3, the notarial certificate, as the Spring Festival Gala Evening is unquestinably organized and broadcast by CCTV and the plaintiff holds the letter of authorization issued by the former, the plaintiff thus has the qualifications to apply for preservation of evidence from the perspective of the prima facie evidence, so this court recognizes the evidence said. II. Evidence submitted by the defendant The plaintiff has no objection to the genuineness and legitimacy of Evidence 1 submitted by the defendant, i.e. the description of the website www.boosj.com, but has objection to its relevancy to this case. Likewise, it has no objection to the genuineness and legitimacy of the defendant’s Evidence 2, i.e. the cooperation agreement and price schedule, but has objection to its relevancy, alleging that the agreement is unrelated to this case and the influence of the films attached to the agreement can not compare with that of the CCTV Spring Festival Gala Evening at all. This court finds that the defendant’s Evidence 1, i.e. the website description, is a self-statement of Sanji Media, and without verification of other evidence, this court can not ascertain the probative force of the evidence. With regard to the defendant’s Evidence 2, i.e. the cooperation agreement and price schedule, since it is unrelated to the Spring Festival Gala Evening, this court does not acknowledge its relevancy to this case. According to the effective evidence above and the statement of the parties concerned in the trial, this court finds the following facts: After organizing, filming and broadcasting the 2009 Spring Festival Gala Evening live on the New Year’s Eve, CCTV edited the gala’s recording and converted it into DVDs, with CCTV signed as the producer. On July 22, 2008, CCTV issued a copyright notice for the DVDs, with the main content described as follows: CCTV has already granted CCTV.com an exclusive right to exercise the copyright or copyright-related rights it enjoys over the works it films, produces or broadcasts and to exercise the right to disseminate, broadcast or provide all the TV channels authorized by CCTV as well as the programs they have

52 (including but not limited to the 2008 Beijing Olympic Games, 2008 Spring Festival Gala and the galas before 2008…) via the information network. As an exclusive licensee of the above rights, CCTV.com can, against any infringements of the foregoing rights (including those prior to the issuance of this copyright notice), claim or exercise the foregoing rights in its own name, license others to exercise all or part of the foregoing rights or prohibit others from doing so, or resort to various legal actions in its own name or by entrusting lawyers or other third parties, including but not limited to investigation and evidence collection, administrative complaint, claiming for compensation, negotiation or compromise, filing lawsuits, applying for compulsory enforcement, and obtaining compensation, etc. On April 20, 2009, CCTV again issued a letter of authorization, whose main content was similar to that of the 2008 copyright notice, claiming that CCTV has already granted CCTV.com with the exclusive right to exercise the copyright over the Spring Festival Gala Evening and Lantern Festival Gala programs it filmed and produced all over the world. On February 5, 2008, the plaintiff CCTV.com (Party A) signed a technical cooperation agreement on live video broadcasting via internet with Beijing Unioncast (Party B), agreeing as follows: during the term of cooperation, i.e. from February 5, 2008 to February 7, 2008, Party A will disseminate the programs of CCTV on the internet by using Party B’s P2P live video broadcasting platform; and Party B shall pay to Party A RMB 1 million yuan in a lump sum before February 5, 2008. After the agreement was executed, Beijing Unioncast paid RMB 1 million yuan to CCTV.com, for which CCTV.com issued an invoice to Beijing Unioncast on February 13, 2008. On March 2, 2009, the plaintiff’s attorney Han Junfang applied to Shanghai Jing’an District Notary Public Office for preservation of evidence. Supervised by notary public Cui Yaxia and others, Han Junfang first logged onto the internet using the notary public office’s computer; then, she searched the owner of the website www.boosj.com in the ICP/IP address/domain information registration and management system of the Ministry of Industry and Information Technology, finding that the website’s owner is Sanji Media. Thereafter, Han Junfang entered the website by typing www.boosj.com into the address bar and found such content as the 2009

53 CCTV Spring Festival Gala Evening in the website. Clicking various programs in the page, she found that such playlet as Money is No Problem could all be broadcast online. This court holds that the Spring Festival Gala Evening is indeed an evening party funded and produced by CCTV. The program has such elements of literary and artistic works as theme, cultural connotation, narrative style, layout and structure. Moreover, the selection and organization of the programs and design of the dance, lighting, backdrop and dresses as well as the control of pace, combination of scenes, and application of stunt were all completed by virtue of CCTV’s organization. Therefore, the Spring Festival Gala Evening funded, organized and produced by CCTV should be recognized as a whole as a TV work in the sense of the Copyright Law. Although the programs of the gala were created and played by a large number of authors and performers, none of the authors or performers is likely to and can not claim exclusive copyright over the entire gala. Therefore, only CCTV reasonably has the copyright over the Spring Festival Gala Evening in its entirety, while the defendant argues that the gala’s authors and players should enjoy copyright over the gala as a whole. However, this court maintains that the defendant’s opinion that the gala’s copyright should belong to individual authors and players of the separate programs and CCTV does not enjoy the copyright does not fit in with the legislative spirit and purpose of the Copyright Law, which “encourages creation and dissemination of works that are conducive to the construction of the material and spiritual aspects of the socialist civilization and promotes development and prosperity of the socialist cultural and scientific undertakings”; therefore, this court does not accept the defendant’s counter-argument. On the other hand, this court finds that the plaintiff, CCTV.com, does enjoy the exclusive right of information communication via internet with regard to the 2009 CCTV Spring Festival Gala Evening upon authorization of CCTV, the copyright holder of the gala. This right of the plaintiff is protected by the law. The defendant’s providing online broadcast service relating to the 2009 CCTV Spring Festival Gala Evening on the website run by itself without approval of

54 CCTV.com, the right holder, infringed the plaintiff’s right of information communication via internet; hence the plaintiff’s accusation of copyright infringement is true. With respect to the defendant’s counter-argument that “it is an internet service provider and the programs involved in the case are uploaded by its users”, this court does not support it in that it is groundless and contradictory to the fact found out by this court. With regard to the several claims made by the plaintiff, this court determines as follows: the plaintiff’s claim that the defendant stops infringing its copyright complies with legal provisions and this court supports it. In respect to the claim for an apology, this court holds that apology, as a way of assuming civil liabilities, is a remedy used when the personal right is infringed. Because the plaintiff fails to produce evidence proving that the copyright holder’s personal right is infringed, the claim is thus groundless and this court does not support it. Based on the RMB 1 million yuan licensing fee provided in the technical cooperation agreement on live internet video broadcasting it signed with Beijing Unioncast, the plaintiff demands compensation in the amount of RMB 1 million yuan from Sanji Media. For this claim, this court holds the following opinions: firstly, the live broadcasting agreement applies to the 2008 Spring Festival Gala Evening only and can not prove the live broadcasting fee of the 2009 gala; secondly, the RMB 1 million yuan payment made by Beijing Unioncast to the plaintiff is for real-time broadcasting of the Spring Festival Gala Evening on the internet, hence the term of the agreement is only 2 days. However, it is known to all that the click rate and advertising effect and benefit of the gala’s live broadcasting via internet perform far better than those of the post-gala online VOD services. Therefore, the plaintiff’s claim based on the amount of that licensing fee lacks factual and legal bases. As for the amount of damages, this court will decide in accordance with the law by taking into consideration such elements as the fame and cost of the Spring Festival Gala Evening, the duration of the uploaded gala on the defendant’s website, the influence of the website concerned, and the defendant’s cost in registering the website, etc. In respect to the plaintiff’s claim for RMB 50,000 yuan compensation for its relevant expenses, this court does not support it in that the expenditure of the amount

55 lacks support of evidence. To sum up the above, according to Article 10.1.(12) and Article 10.2, Article 15.1, Article 47.1 and Article 48.2 of the Copyright Law of the People’s Republic of China, and Article 7 and Article 25.1 and 25.2 of the Judicial Interpretation on Several Issues Relating to the Applicable Laws for the Trial of Copyright-related Civil Disputes, this court rules as follows: 1. The defendant shall stop providing online broadcasting service relating to the 2009 2. The defendant shall pay damages in the amount of RMB 25,000 yuan to CCTV.com for the economic loss sustained by the plaintiff within 10 days from the effective date of this judgment. 3. Other claims of the plaintiff are all rejected. If the defendant fails to fulfill the obligation of paying the damages within the term stipulated in this judgment, it shall pay a double amount of the interest accrued by the damages for the term delayed according to Article 229 of the Civil Procedural Law of the People’s Republic of China. Of the RMB 14,250 yuan expense for the trial of this case, RMB 10,000 yuan shall be borne by the defendant, while the rest RMB 4,250 yuan shall be borne by the plaintiff, and the defendant shall pay its share of RMB 10,000 yuan to this court within 10 days from the effective date of this judgment. If either party has any objection to the ruling above, it has the right to submit a petition for appeal to this court within 15 days from the date on which the judgment is served and then file an appeal at Hangzhou Intermediate People’s Court by submitting to the court copies of the petition in the number of the responsible people on the opposing side and in the meantime, pay the expense for case acceptance to Hangzhou Intermediate People’s Court in advance. In the case that an appeal is filed for property-related judgment, the case acceptance expense shall be advanced according to the amount to which the appellant has objection. (Bank Name: Industrial and Commercial Bank of China Hubin Branch; Account Number: 1202024409008802968; Account Name: Zhejiang Hangzhou Intermediate People’s Court). If the case

56 acceptance expense is not paid within 7 days after the appeal period expires, the appeal will be deemed to have been withdrawn voluntarily by the appellant.

Chief Judge: Zhang Lijun People’s Jury: Wang Wei People’s Jury: Chai Zhenxing Hangzhou Xihu District People’s Court (seal) October 10, 2009

This copy is verified to be the same as the original. Clerk: Wei Wei

Guangzhou Intermediate People’s Court Civil Judgment

(2008) Sui Zhong Fa Min San Chu Zi No. 352

Plaintiff: CCTV.com, with its domicile at Buildings 1 and 2, 10 West 3rd Ring Road, Haidian District, Beijing

Legal representative: Wang Wenbin, General Manager Attorney: Rong Chao, (Shanghai) Tenwen Law Firm Attorney: Li Yong, male Han people, born on October 30, 1971, Chief Legal Officer of the plaintiff Defendant: Shijilong Information Network Co., Ltd, with its domicile at Floors 1 and 2, East Tower, Huatian International Plaza, 211 Longkou Middle Road, Tianhe District, Guangzhou, Guangdong Legal representative: Liang Feng, chairman Attorney: Xiao Xin, male Han people, born on December 1, 1978, employee of the defendant Attorney: Lin Boqing, male Han people, born on May 6, 1977, employee of the defendant

The plaintiff CCTV.com (“CCTV.com”) brought the defendant Shijilong Information Network Co., Ltd (“21CN.com”) into this court on the ground of copyright infringement. After accepting the case, this court established a collegiate panel according to the law and openly heard the case. Present at the hearing were the plaintiff’s attorneys Rong Chao and Li Yong and the defendant’s attorneys Xiao Xin and Lin Boqing. The case has now been trialed and closed. In its complaint, the plaintiff alleged that on May 8, 2008, it discovered that the defendant rebroadcast via its information network the Olympic torch relay on Mount Qomolanma which was being live broadcast by the Olympic Channel of CCTV. Investigation found it true that the plaintiff, CCTV.com, has already been granted exclusive right to disseminate and broadcast the Olympic torch relay on Mount Qomolanma. However, the defendant made the live program available to the public

58 via its information network without permission of the plaintiff. As the Olympic program concerned was produced and broadcast by the plaintiff and CCTV at the expense of enormous labor, property and financial input, the defendant’s act severely infringed on the legitimate rights and interests of the plaintiff and caused great economic loss to the plaintiff, the circumstance being serious. Moreover, as the defendant did not announce the plaintiff as the copyright holder in rebroadcasting the program of which the plaintiff enjoys copyright, it should make an apology to the plaintiff. Therefore, the plaintiff requested this court to order the defendant: 1. to immediately stop infringing the relevant copyright enjoyed by the plaintiff and stop providing the service of rebroadcasting the program concerned via its information network; 2. to openly apologize to the plaintiff by making a statement on the front page of its website and China TV Newspaper; 3. to pay RMB 4 million yuan in compensation for the economic loss suffered by the plaintiff and RMB 100,000 yuan in compensation for the reasonable expenses incurred by the plaintiff for the purpose of investigating the defendant’s infringement act and filing a lawsuit against it, which totaled RMB 4.1 million yuan; and 4. to bear all the litigation expenses of this case. In an effort to support its claims, the plaintiff submitted the following evidence to this court: Group 1 Evidence 1: copyright notice, which is to prove that the plaintiff enjoys the right of information communication via internet and radio in respect to the Olympic Flame Shining on Mount Qomolanma program Evidence 2: work book and planning for live TV coverage of the Olympic torch relay event on Mount Qomolanma, which are to evidence the theme, production method and materials, technology and labor input, and investment cost of the live program Evidence 3: recording of the live program titled the Olympic Flame Shining on Mount Qomolanma dated May 8, 2008, which is to prove that the program is an original work created by way of making films Group 2 Evidence 4: notarial certificate, which is to prove that the defendant infringed on the plaintiff’s copyright knowingly, intentionally and directly Evidence 8 and 9: two copies of attorney’s letter dated May 30 and June 12, 2008 respectively, which are to prove that the plaintiff gave a timely notice to the

59 defendant, but the defendant refused to remove the program concerned from its website Evidence 3: Evidence 5: cooperation agreement, which is to prove the plaintiff’s loss of economic interest caused by the defendant’s infringement. The plaintiff holds that websites make profit by attracting advertisers with videos provided for free while the plaintiff makes profit by selling the videos to the website. In signing a cooperation agreement with Beijing Hylink Advertising Co., Ltd, the plaintiff awarded the contract of advertiser attraction to the latter at a price of RMB 24 million yuan, which did not include advertisement inserted into the live TV broadcasting of the Olympic torch relay on Mount Qomolanma and only included the income from advertising via the websites of Hylink Advertising and the following 4 websites, i.e. Sina, Sohu, Tencent and Netease. Because the program concerned is very important and influential, it has a very high level of value for advertising. In fact, the plaintiff charged the foregoing websites RMB 6 million yuan each for broadcasting the program concerned. Considering potential impact and as a result of compromise, the plaintiff claims for only RMB 4 million yuan compensation from the defendant in this case. Evidence 6-invoice for the lawyer’s fee and Evidence 7-invoice for the notarization fee, which are to prove the reasonable expenses paid by the plaintiff in handling this case. The defendant’s cross-examination opinions are stated as follows: the defendant has no objection to the genuineness of Evidence 1, but has objection to its legitimacy and relevancy to this case, holding that the plaintiff is not an original copyright holder and has no evidence proving that CCTV enjoys copyright over the program concerned. It has no objection to the genuineness and legitimacy of Evidence 2, but has objection to its relevancy, because the evidence can not prove originality of the program concerned, which contains only introductory information not protected by the Copyright Law. Likewise, the defendant has no objection to the genuineness and legitimacy of Evidence 3, but has objection to its relevancy, on the grounds that the program over which the plaintiff claims copyright is just a record of objective event and does not have such features as originality and reproducibility of works provided in the Copyright Law and that the content of TV programs or films is a record of their copyright holders’ creation process, but the subject matter of the program concerned

60 is a non-commercial activity in which all people in the world participate and the plaintiff has no subjective initiative in this activity and just reports the event. With respect to Evidence 4, the defendant has no disagreement, and acknowledges that it did rebroadcast the program concerned real-time and later broadcast it again. With respect to Evidence 5, the defendant agrees with its genuineness and legitimacy, but disagrees with its relevancy, alleging that the agreement between the plaintiff and Hylink Advertising is no more than a contracting agreement between the two parties and is unrelated to the program concerned. The defendant demands that the plaintiff provide the annex to paragraph 2, article 1 of the contract, for the annex lists a vast array of advertising resources. Moreover, the cooperation agreement between the plaintiff and Beijing Sina Internet Information Service Co., Ltd has no provision in respect of contract price, which indicates that the program concerned is only of low value or can be seen as non-commercial. It also indicates that the plaintiff and Sina are in equal positions and that the cooperation between them, or between all media actually, is all free. For Evidence 6, the defendant has no objection to its genuineness, but has objection to its relevancy, claiming that the plaintiff should produce relevant contract which can prove that the invoiced money is paid for expenses incurred in this case. The defendant acknowledges Evidence 7, and has no objection to the genuineness of Evidence 8 and 9, but it removes the program concerned from its website after receiving the letter of attorney from the plaintiff. The defendant argues as follows: 1. The plaintiff’s evidence proving its copyright over the work concerned is defective. The plaintiff is not the original copyright holder of the program concerned and the precondition for the plaintiff to enjoy legal right over the program is that CCTV enjoys legitimate copyright over the program concerned, but the plaintiff can produce only a certificate which can not prove CCTV’s copyright over the program. In the program concerned, although the emblem of CCTV does appear, it is not justifiable to conclude that CCTV is the program’s copyright holder in that the placing of a TV station’s emblem in a program is not a statutory declaration of authorship but a mere effort to identify and distinguish the TV station from others. 2. From the perspective of the attribute of the program concerned, it does not have such basic attribute of works as originality provided in the Copyright Law. The program on the Olympic flame reaching the peak of Mount Qomolanma is not reproducible and does not contain intellectual product of the broadcasting organization. Moreover, the activity of the Olympic flame reaching the

61 peak of Mount Qomolanma is not reproducible in itself. In light of the fact that the program concerned is not original and reproducible, it is our opinion that the program concerned should not be under protection of the Copyright law. 3. The plaintiff, as a media organization, covers the Olympic torch relay only for the purpose of answering the government’s call to advocate patriotism, rather than for the purpose of making profit. 4. Even if the court finds the defendant guilty of copyright infringement, the plaintiff’s claim for damages has no factual and legal grounds. According to relevant provisions of the Copyright Law, the notarial certificate produced by the plaintiff as evidence can prove only the point of time rather than period of time of the infringement. In fact, the loss caused to the plaintiff by the “infringement” is minimal. From the perspective of the “illegal” income to the defendant, as a legal internet media, the defendant’s act is of non-commercial nature; it obtains no economic interest in fact. Under the circumstance where the plaintiff can not ascertain its economic loss and gain, the court should make a ruling offering compensation less than RMB 500,000 yuan. In this case, the defendant’s fault is light, so the plaintiff’s claim for RMB 4 million yuan against economic loss is sheer groundless. Moreover, CCTV is not a pure commercial establishment; rather, it is a media organization tasked with the publicity of public welfare undertakings. In light of the attribute of the infringed program in this case, the plaintiff’s claim for enormous compensation is unreasonable. 5. Finally, the communication of the program concerned on the defendant’s website is quite short. The Olympic torch relay on Mount Qomolanma lasts only several hours, so the defendant can by no means gain an enormous economic interest worth RMB 4 million yuan or over within so short a period of time. From the perspective of technology, due to the constraint of network environment, the effect of video broadcasting on the internet is not yet satisfactory. Moreover, the defendant’s server can provide video broadcasting service for only 200 people concurrently. According to the defendant’s calculation, the number of netizens who can see the program concerned on the defendant’s website will not exceed 10,000. Therefore, the ‘illegal’ communication of the program concerned is actually very narrow in scope and can not have caused so huge an economic loss to the plaintiff. In order to support its claims, the defendant submitted two pieces of evidence to this court: Evidence 1: Yue Fu Xin Tong [2008] No.14 notice issued by the Information Office of the People’s Government of Guangdong Province, which is to prove that the

62 defendant covers the Olympic torch relay upon requirement of the government department in charge of information affairs Evidence 2: permit for provision of internet news and information services, which is to prove that the defendant is a legal news media With regard to the defendant’s evidence, the plaintiff expressed the following cross-examination opinions: it has no objection to the genuineness and legitimacy of Evidence 1, but has objection to its relevancy, with the argument that the government department in charge of information affairs requires the defendant to make news report only, rather than communicate the Olympics-related works in a direct and large-scale manner. Meanwhile, the government’s document can not exempt the defendant from bearing responsibility for the infringement either because it can not confront the law. In respect of Evidence 2, the plaintiff agrees with its genuineness and legitimacy, but disagrees with its relevancy. In the process of hearing, this court showed to both parties to this case the Host

City Contract for the Games of the 29th Olympiad signed between the International Olympic Committee on one side and Beijing City and the Chinese Olympic Committee on the other side on July 13, 2001 as well as the Notice on Prohibiting Illegal Broadcasting of Olympic Games and Related Activities via Internet jointly issued by the National Copyright Administration, Ministry of Industry and Information Technology and State Administration of Radio, Film and Television on June 20, 2008. In this regard, the plaintiff holds the opinion that the video of the Olympic torch relay is only a small fraction of the program concerned and the copyright of this part should not affect the ownership of the copyright of the entire program. The broadcasting right mentioned in the Notice above refers to the right of competitive sport events’ hosts or major events’ hosts in determining whether or not to give a certain TV organization the right to cover the event via television. However, the defendant maintains that according to the evidence above, CCTV and CCTV.com are not copyright holder of the work involved in this case and only have the right of broadcasting, so they can not claim rights in the name of the copyright holder, and

Article 41 of the Host City Contract for the Games of the 29th Olympiad contains the works for which the plaintiff claims copyright.

After examination, this court finds the following fact: on July 13, 2001, the International Olympic Committee (Party A) and Beijing City and the Chinese

63 Olympic Committee (both Party B) signed the Host City Contract for the Games of the 29th Olympiad in Russia. The Contract contains the following content: WHEREAS, according to the Olympic Charter, the IOC is the supreme authority of and leads the Olympic Movement, and the Olympic Games are the exclusive property of the IOC which owns all rights and data relating thereto, in particular, and without limitation, all rights relating to their organization, exploitation, broadcasting, recording, representation, reproduction, access and dissemination in any form and by any means or mechanism whatsoever, whether now existing or developed in the future…WHEREAS the IOC has taken note of and has specifically relied upon the covenant given by the government of the country in which the City and the NOC are situated to respect the Olympic Charter and this Contract…NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING, THE PARTIES HERETO HEREBY AGREE AS FOLLOWS: …41 Proprietary Right of Artistic or Intellectual Works: a. All proprietary rights, including copyright, in all graphic, visual, artistic and intellectual works or creations developed by or on behalf of or for the use of the City's Candidature Committee, the City, the NOC or the OCOG with respect to the Games shall vest in and remain in the full ownership of the IOC, including, without limitation, the following matters: i) emblems and mascots (including the OCOG’S emblem referred to in Paragraph (c) of Section 40 above), including all graphic and three-dimensional representations thereof; ii) pictogrammes; iii) poster designs; iv) Olympic torch designs and any moulds relating thereto; v) badges and any moulds relating thereto; vi) Olympic winners and commemorative medals designs and any moulds relating thereto; vii) diplomas; viii) Official publications; ix) musical works as referred to in the Olympic Charter; x) other graphic works; xi) medical-related data; and xii) Olympic Games-related databanks and statistics, including those of the participating sportsmen, purchasers of the ticket for the Olympic Games and people registered to participate in the Olympic-related services or consulting the services. The Olympic flame reaching Mount Qomolanma is an important show of the 2008 Olympic Games torch relay. CCTV was assigned with the work of covering the activity via TV. Others who participated in covering the activity also included leaders

64 of the General Administration of Sport, Beijing Olympic Organizing Committee, State Administration of Radio, Filum and Television, and the People’s Government of Tibet Autonomous Region as well as its Sport Bureau, etc. CCTV started live broadcasting the program Olympic Flame Shining on Mount Qomolanma from 6 a.m., May 8, 2008. It set Beijing studio, 5,000m studio, 6,500m camp, 7,028m camp, 7,790m camp, and 8,300m camp, trained mountain camera men who mounted the top of Mount Qomolanma to film the activity, and in the meantime, provided personnel for relaying microwave equipment which enabled real-time broadcasting of the activity throughout. Apart from broadcasting the process of climbing on to the top of the mountain, the success of relaying the Olympic flame and the celebrations of various places, CCTV also introduced the following contents in the program: 1. geographic conditions of Mount Qomolanma; 2. a review of the torch relay for the 2008 Beijing Olympiad; 3. an animated show of the mountain climbing process; 4. pictures of historical climbers on top of the mountain; 5. an introduction and presentation of the route to the mountain top; 6. interactions between program hosts at the 5,200m studio; 7. an interview to Sang Zhu, head of the Tibetan mountaineering team, and Ma Xinxiang, former head of the national mountaineering team of China; 8. re-broadcasting of the occasion where the mountaineering command saw the climbers off at 8,300m above the sea level; 9. broadcasting of pre-filmed personal introduction of the key mountain climbers; and 10. interviews to the torch manufacturers and the on-site chief coordinator of CCTV, etc. On July 22, 2008, CCTV issued a Copyright Notice to the plaintiff. The Notice reads as follows: This is to certify that China Central Television (hereinafter referred to as CCTV) has already granted CCTV.com an exclusive right to communicate, broadcast (including not but limited to live and delayed broadcasting) or provide via information network (including the internet, mobile platforms, IP TVs, and car TVs, etc) all its own or authorized TV channels and the TV programs contained in these channels (including but not limited to the Olympic torch relay, climbing atop Mount Qomolanma, and opening and closing ceremonies of the 2008 Beijing Olympiad, live broadcast or filmed programs concerning all games of the 2008 Beijing Olympiad and other games related, all news related to the Olympic Games or special coverage or commentary programs, and the 2008 and past Spring Festival Gala Evening) which are filmed, produced or broadcast by CCTV and over which CCTV enjoys copyright or copyright-related rights. As an exclusive licensee of

65 the above rights, CCTV.com can, against any infringements of the foregoing rights (including those prior to the issuance of this copyright notice), claim or exercise the foregoing rights in its own name, license others to exercise all or part of the foregoing rights or prohibit others from doing so, or resort to various legal actions in its own name or by entrusting lawyers or other third parties, including but not limited to investigation and evidence collection, administrative complaint, claiming for compensation, negotiation or compromise, filing lawsuits, applying for compulsory enforcement, and obtaining compensation, etc. All the rights authorized above shall take effect from April 28, 2006. On April 29, 2008, the Information Office of the People’s Government of Guangdong Province issued a document coded Yue Fu Xin Tong [2008] No.14, which made arrangement for the internet publicity and coverage of the Olympic torch relay in China and required news media to set an Olympic Torch Relay column in their Olympiad Specials and put it at a conspicuous place on the front page of their websites and to timely post the torch relay-related news and commentaries wired by such key central media as the People’s Daily, Xinhua News Agency, China National Radio, and CCTV to publicize the great torch relay event. On May 8, 2008, the defendant re-broadcast the Olympic torch relay on Mount Qomolanma program live broadcast by CCTV Olympic Channel on its website www.21cn.com, with the title of the page concerned reading “Live Broadcast Video for Beijing Olympic Torch Relay on Mount Qomolanma” and the emblem of the CCTV Olympic Channel appearing on the top left corner of the video broadcast. The content broadcast by the defendant included the program concerned in this case and the advertisement inserted therein. Moreover, the website’s users could re-play the program concerned, but the defendant did not insert advertisement in the program broadcast. On May 30, 2008, the plaintiff sent a letter of attorney to the defendant, demanding that the defendant delete the program concerned forthwith from its website. In the hearing process, the plaintiff acknowledged that the defendant had already stopped providing real-time broadcasting service via internet for the program concerned. On June 20, 2008, the National Copyright Administration, Ministry of Industry and Information Technology, and State Administration of Radio, Film and Television

66 jointly issued the Notice on Prohibiting Illegal Broadcasting of Olympic Games and Related Activities via Internet. The Notice is quoted partly as follows: For the purpose of fostering a favorable atmosphere for successful holding of the Olympic Games, ensuring smoothness of the broadcasting of such activities as the games, opening and closing ceremonies, testing games, pre/post-game cultural events, Olympic flame collection and torch relay of this Olympiad, and effectively safeguarding the Olympic-related copyright and other rights related, we hereby issue a notice as follows according to the Olympic Charter as well as the relevant agreement signed by and between the Chinese government and the International Olympic Committee: 1.

The right to broadcast the games and related activities of the 29th Olympiad in the mainland and Macao of China via new media (internet and mobile platform) has been granted to CCTV by the International Olympic Committee. Without permission of CCTV, any new media such as internet and mobile platforms are prohibited from broadcasting them…6. The “broadcasting” referred to in this Notice means activities that communicate Olympic games and related activities synchronously or non-synchronously via internet or mobile platforms. The copyright protection work relating to the Olympic games and related activities has a bearing to the international image and national interest of our country; therefore, the copyright law enforcement and information management departments at all levels shall, with a high sense of responsibility and mission, actively make contribution to purifying the environment of internet-related copyright protection and ensuring success of the Olympic Games by stepping up law enforcement efforts. Another finding of this court is as follows: on March 14, 2008, the plaintiff (Party A) and Beijing Hylink Advertising Co., Ltd (Party B) signed a partnership agreement (hereinafter referred to as Agreement 1), which provided that Party B has preferential right to serve as an advertising agency for Party B in respect to its entire video resources relating to the 2008 Olympic Games in Beijing and Party A authorizes Party B to contract the advertising business relating to the CCTV Olympic Torch Relay via New Media project as well as to promote relevant videos. According to Agreement 1, Party A authorized Party B to be its strategic partnership in marketing advertisement and promoting videos relating to the project aforesaid, and Party B will therefore pay fees to Party A. More specifically, Agreement 1 provided that the fee to be paid by Party B to Party A totaled RMB 24 million yuan. According to the foregoing arrangement, Party B will be the exclusive agency for the advertising

67 resources (see Annex 1 for details) contained in the return list of the CCTV Olympic Torch Relay via New Media project. The plaintiff did not submit the Annex to this court, however. On March 22, 2008, in an effort to communicate the Beijing Olympic Games torch relay program to the end users most widely and provide convenience for the public to watch the program via internet, the plaintiff (Party A) and Beijing Sina Internet Information Service Co., Ltd (Party B) signed a cooperation agreement (hereinafter referred to as Agreement 2), which provided Party B’s rights and obligations as follows: Party B shall ensure that it broadcasts the items for cooperation listed in Annex 1 to Agreement 2 via internet free of charge to its users. In broadcasting the live videos provided by Party A, Party B shall not remove the logos of the CCTV channels concerned as well as the logo of CCTV.com from the video screen. Besides, Party B shall not add any pictures or information (including the logo of Party B itself) to the video screen. In order to increase the influence of the cooperation, Party B will strictly meet the uniform publicity requirements of Party A and promote the programs pertinently to attract more audience. Party B undertakes that all the viewing and internet promotion of the programs concerned will be done under the domain of Sina (www.sina.com.cn and www.sina.cn). Also, Party B shall put a notice on the video broadcasting page reading that “Without authorization, nobody is allowed to copy, embed or link to this page.” On March 23, 2008, the plaintiff (Party A), Beijing Sina Internet Information Service Co., Ltd (Party B) and Beijing Hylink Advertising Co., Ltd (Party C) signed a tri-party agreement (Agreement 3), which provided that Agreement 2 between Party A and Party B in respect to joint communication via internet of the CCTV Beijing Olympic torch relay program was reached on the grounds that Party A and Party C had established an advertising agency business partnership for the CCTV Olympic torch relay via new media project and that Party B and Party C had also entered into partnership for advertising business and video promotion relating to the project said. In this case, the plaintiff clearly claims that its loss should be regarded as the basis for the calculation of the damages to be paid by the defendant. This court also finds that the plaintiff appointed lawyers for this lawsuit and paid 1,000 yuan for notarization. This court thinks that the live program titled Olympic Flame Shining on Mount Qomolanma, by interviews, historical literatures and imitational demonstration, is

68 intentionally divided into several parts that integrate organically to serve the purposes of showing the Chinese mountaineers’ undauntedness, promoting the Olympic spirit and tenet of Being Faster, Higher and Stronger, stimulating the self-confidence and sense of honor of the Chinese people, and delivering the Chinese people’s promise to the International Olympic Committee and the world as a whole. Therefore, it has the attribute of originality of works and can be seen as a work created in a way similar to that for making films. In respect to the copyright ownership of the program concerned, because the Olympic torch relay on Mount Qomolanma is an important part of the Olympic torch relay organized by Beijing Organizing Committee for the 29th Olympiad and the program involved in this case is a work centered on this theme and created in a way similar to that of movie making, the copyright of the program said shall therefore belong to the International Olympic Committee according to the Host City Contract for the 29th Olympiad signed by and between the International Olympic Committee on one side and Beijing and the Chinese Olympic Committee on the other side. According to the Olympic Charter and relevant agreements between the Chinese government and the International Olympic Committee, the broadcast right of the games and relevant activities of the 29th Olympiad via the new media (internet and mobile platforms) in the mainland and Macao of China has been granted exclusively to CCTV by the International Olympic Committee. The broadcast right granted included the right of information communication via internet in the sense of the Copyright Law. Therefore, CCTV enjoys the exclusive right of information communication via internet over the program concerned. Without permission of CCTV, any other internet or mobile media than CCTV.com are not allowed to broadcast the program. The plaintiff of this case has been granted the right of information communication via internet by CCTV, so its legal rights and interests shall be protected by the law. The defendant, however, re-broadcast the program involved in this case live broadcast by CCTV Olympic Channel without authorization of CCTV on its website. What’s more, its users could replay the program. Therefore, the defendant’s act infringed on the plaintiff’s right of information communication via internet, and thus shall bear the legal responsibilities arising therefrom. With respect to the plaintiff’s demand that the defendant stop providing real-time broadcast service for the program infringed on its information network, since the

69 plaintiff itself has acknowledged the fact that the defendant had already stopped the service for the program concerned, there is no need for this court to decide on this matter any more. With respect to the plaintiff’s claim that the defendant make a public apology to it on the frontpage of the website run by the defendant and China TV Newspaper, this court maintains that the making of apology is subject to the precondition that the copyright holder’s personal right is infringed. In this case, however, the content broadcast by the defendant was not edited or altered and has the emblem of CCTV with it. Moreover, the plaintiff has no evidence which can prove that the defendant’s act does harm to its reputation. Therefore, this court does not support this claim of the plaintiff. Apart from the above, the plaintiff also claims that the defendant pay RMB 4 million yuan and RMB 100,000 yuan in respective compensation for its economic loss and reasonable expenses incurred in investigating the infringement and bringing the defendant into this court. In this respect, this court holds the following opinions: firstly, the plaintiff has no evidence that proves its actual loss in advertising business attributable to the defendant’s act. Secondly, the evidence produced by the plaintiff can not sufficiently prove its collection of RMB 6 million yuan from Sina, Sohu, Tencent and Netease respectively. Moreover, according to Agreement 1 submitted by the plaintiff, the plaintiff also provided advertising resources to Beijing Hylink Advertising Co., Ltd as a consideration of the agreement. Thirdly, the plaintiff has no evidence proving that the defendant conducted advertising agency business in committing the infringement act. To the contrary, the defendant broadcast the advertisement of CCTV while broadcasting the program concerned, and did not plant its own advertisement in the program. Therefore, this court does not accept the plaintiff’s claim that its loss should serve as the basis of damages calculation. Furthermore, the plaintiff has no evidence which can prove the amount of profit made by the defendant in the infringement act. Therefore, this court determines the amount of damages at RMB 300,000 yuan by taking into consideration the following elements: the social value and theme of the program concerned, the nature of the plaintiff’s right, the nature of the defendant’s website, the nature and consequence of the infringement act, the time at which the National Copyright Administration and other departments jointly issued the Notice on Prohibiting Illegal Broadcasting of Olympic Games and Related Activities via Internet, as well as the reasonableness and necessity of the

70 lawyer’s fee and notarization fee paid by the plaintiff in this case. To sum up the above, according to Article 10.1.(12), Article 47.1, and Article 48 of the Copyright Law of the People’s Republic of China, this court rules as follows: 1. The defendant, Shijilong Information Network Co., Ltd, shall pay a total of RMB 300,000 yuan to the plaintiff CCTV.com in compensation for the plaintiff’s economic loss and reasonable expenses paid in handling this case wthin 10 days from the effective date of this judgment. 2. This court rejects other claims of the plaintiff CCTV.com.

If the defendant fails to fulfill the obligation of paying the damages within the term stipulated in this judgment, it shall pay a double amount of the interest accrued by the damages for the term delayed according to Article 229 of the Civil Procedural Law of the People’s Republic of China. Of the RMB 39,600 yuan expense for the trial of this case, RMB 14,600 yuan shall be borne by the plaintiff CCTV.com, while the rest RMB 25,000 yuan shall be borne by the defendant Shijilong Information Network Co., Ltd. If either party has any objection to the judgment above, it has the right to submit a petition of appeal to this court within 15 days from the date on which the judgment is served and then file an appeal at the Higher People’s Court of Guangdong Province by submitting to the court copies of the petition in the number of the responsible people on the opposing side.

Chief Judge: Chen Weimin Judge: Wang Wei Acting Judge: Liu Jie

Guangzhou Intermediate People’s Court (seal) , 2009

This copy is verified to be the same as the original. Clerk: Mao Yuling