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 4 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 3 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 4 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