By You Yunting
In recent, CNTV, the subsidiary of China national television station (the “CCTV”), which in charge of its online business, quarreled with SMG’s BesTV (SHEX:600637) on the Olympics broadcasting. By the statement of CNTV, it owns the exclusive online broadcasting right of 2012 London Olympics in China, yet BesTV, with no license form CNTV, provided 1) the streaming of Olympic games, 2) program time-shifted playback through server storage and 3) VOD to local cooperated IPTVs, and that damages CNTV’s legal rights. So far we have heard no reply from BesTV on the accusation.
CCTV and SMG are the top two media groups in mainland China, and any copyright disputes between their new media companies may shock the industry. Considering the complicated regulations in Chinese Copyright Law, and the legislature vacancy regarding online rebroadcast of TV programs, through this essay, the author would like to analyze the difficulties and advantages of CNTV’s right protection basing on the existing laws and regulations.
Let’s first take a look at a similar case, may be that can help you to get a view on the difficulties in protecting TV program’s copyright in China. Jiaxing Huashu company signed a “Channel Resources Cooperation Contract” with Heilongjiang TV, by which it got the exclusive broadcast right of the station’s programs in Jia Xing city of Province Zhejiang. But Jiaxing Telecom streamed Heilongjiang TV in the same time on IPTV in Jiaxing City. For the claim of infringement against the broadcasting right, Jiaxing Huashu filed a lawsuit against Jiaxing Telecom, and demanded infringement ceasing, an apology as well as the compensation.
After the hearing in the court, however, the judge adjudicated: the plaintiff was licensed the right on TV broadcasting, while the defendant presented the programs on IPTV through the Internet, and the broadcasting right on TV shall not extend to the cyber programs. First, for the legislature intention, the Chinese Copyright Law does not deem online streaming as kind of “broadcasting”. Second, the right holder of information communication by networks in Chinese Copyright Law only includes the copyrighter, performer and video-audio recorder, excluding the broadcast organizer. That is to say the broadcasting organization shall have no access to control the programs spread-out on the Internet. Third, the extension of protective scope of broadcasting right to Internet could damage the state strategy of network integrity. Basing on such reasons, the judge rejected Jiaxing Huashu’s claims in March of 2012.
Without question, the quarrel between SMG and CNTV is also affected by the case, for BesTV broadcasted sports on the Internet like what IPTVs have done in Jiaxing dispute. The Olympics games are not the works in copyright law, so CNTV could also be a broadcasting organizer and have no access to control the communication by networks. And accordingly, to extend the broadcasting right of CNTV to the Internet could likewise jeopardize the enforcement of networks integration. Nevertheless, CNTV may have the advantages in the lawsuit for the “features” we find in the case.
First, the broadcasting by CNTV contains the protective contents in copyright law.
What BesTV presented online is CNTV’s program rather than the transmission signal only, hence what we saw and heard then not only includes the sports competition, but also the live commentaries by the commentator, which could be protected by Copyright Law. Therefore, any unlicensed broadcasts of such contents shall infringe the performers’ right of the commentator or CNTV, subject to the parties’ agreement on works belonging. In the meantime, someone advocates that the organization of live broadcasting and shot changes could also be copyrighted for their creativeness. Anyway, BesTV streamed the works of CNTV within the broadcast of Olympic Games.
Second, the copy and VOD of IPTV by BesTV is kind of copy of works.
In addition to the broadcast of sports, BesTV also provided the services of time-shifted playback and VOD through its server. By Article 45 of Chinese Copyright Law:
“A radio station or television station shall have the right to prohibit fixing its broadcast radio or television program on a sound recording or video recording carrier and to reproduce the sound recording or video recording carrier. ”
The time-shifted playback and VOD demands the first record of CNTV’s Olympic Games, thus the accusation of copy infringement is difficult to be argued by BesTV. In my opinions, once the IPTV of Jiaxing Telecom is with time-shifted playback function, the decision of Jiaxing Court will definitely against the legal regulation.
Third, the effect from Chinese Copyright Law revision.
The cyber protection of TV programs has been one of the targets in law protection as seen in this revision. Judging 1st and 2nd amendment draft of Chinese Copyright Law published in March and July of this year, they both regulate the cyber protection on radio and TV programs. Especially the regulation in 1st Draft favors CNTV, its Item 4 of Paragraph 1 of Article 38 says:
“Radio stations and television stations have the right to prohibit disseminating their radio and television programmes to the public in an information network environment through wireless or cable means.”
In view of this, CNTV is entitled to cease the broadcasting by BesTV.
But in the 2nd Draft, the article was deleted, and revised to “Radio stations and television stations may license others rebroadcast its programmes by cable or wireless”. Although, it’s interpreted by State Copyright Office that the deletion is made mainly due to the non-interactive communication having been integrated into broadcasting right. The legislature intention is obvious that the TV station may have the internet live broadcasting right. Yet, it also comes to our attention that, a chaos in legal regulation may be resulted. By the current Chinese Copyright Law, the right of broadcast refers to publicly broadcast or communicate to the public a work by wireless means, to communicate to the public a broadcast work by wire or relay means…; but the Internet is not involved in the right. So to interpret the “wire or wireless” in the draft as equal to the concept definition in the current law will benefit BesTV in the case. And the loophole of legislature also deserves the attention of the administrative officers.
Last, the sports organizer shall also be protected by laws, and the TV broadcasting right is also one of its main incomes. Therefore, it shall be protected in all communication means, with Internet included in. Despite the complicated situation in China that CNTV is dominant in the field, once the broadcasting right is got by CNTV through fair competition, the right shall be surely protected.
Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
For further information, please contact the lawyer as listed above or through the methods in our CONTACTS.
Bridge IP Law Commentary’s posts, including the comments and opinions contained herein, shall not be construed as the legal advice on any issues related. The contents are for general information purposes only. Anyone willing to quote or refer the posts to any other publications or for any other purposes, no matter there’s benefits gained or not, shall first get the written consent from Bridge IP Law Commentary and used under the discretion of us. As to the application of the reprint permission for any of our posts, please email us to the above addresses. The publication of this post or transmission of it through mail, internet or other methods does not constitute an attorney-client relationship. The views set forth here are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works.