Beyond the signal: a view from China on the copyright protection of live sports programming
By Yan Bo, Deputy Director, Copyright and Legal Office, China Central Television (CCTV), Beijing, People’s Republic of China
Over the years, television broadcasting has been the catalyst for the development of the sports economy. Indeed, as noted by Juan Antonio Samaranch, the former President of the International Olympic Committee (IOC), sports and TV are “a match made in heaven”.
The Olympic Movement is a very good example of the significant economic contribution of broadcasters to the development of sports. As noted by Michael Payne, author of Olympic Turnaround, the revival of the Olympic Movement in the 1980s and its long-term financial sustainability were closely linked to television. Thanks to broadcasting, heart-quaking moments of Olympic action have translated into mass audience ratings and advertising revenue.
Television broadcasting has been the prominent factor in promoting sports events and generating income from top-tier sports events such as the Olympic Games, in particular. Televised broadcast of the Olympic Games in Beijing in 2008, London in 2012 and Rio de Janeiro in 2016 each exceeded 3 billion viewers, nearly half of the world’s population. Moreover, the sale of rights to broadcast the Olympic Games from 2013 to 2016, accounted for 73 percent of the IOC’s total revenue (see p.13). As noted by the IOC in its Olympic Marketing Fact File 2019, Olympic broadcast partnerships have provided the Olympic Movement with “a secure financial base” and have been its “single greatest source of revenue” for more than three decades.
Sports and television are also “a match made in China”. While the 1936 Olympic Games in Berlin marked the first live television coverage of an international sports event in history, it was more than four decades before live sports broadcasts took place in China. In 1978, China Central Television (CCTV) recorded and broadcast the last four matches of the 1978 Argentina FIFA World Cup for the first time. And in 1982, at the request of Chinese viewers, CCTV succeeded in broadcasting live the World Cup final between Italy and the Federal Republic of Germany (as it was then known) in Spain for the first time. The first live broadcast of the Olympic Games to viewers in China took place during the 1984 Olympic Games in Los Angeles (USA). Thereafter, CCTV obtained licenses to broadcast subsequent Olympic Games and World Cup tournaments live and to provide free viewing to the majority of Chinese viewers.
CCTV's sports channel, CCTV5, also covered other international sports events, including the UEFA European Championships, the Champions League, and other major European football leagues in the United Kingdom, France and Italy. It also broadcast Grand Slam tennis tournaments, the Asian Games, NBA (National Basketball Association) in the United States and so on. Of course, the World Table Tennis Championships, the Artistic Gymnastics World Championships, and the World Figure Skating Championships are also strong favorites among Chinese audiences.
Broadcasters have helped to promote the popularity of important international sports brands in China while bringing spectacular sports events to Chinese sports fans. The live broadcast of these major international sports events has significantly boosted television ratings. For example, according to the CSM ratings survey, CCTV's ratings share for sports events in China in 2018 was 52 percent higher than that in 2017 due to its success in broadcasting of the World Cup in Russia, the Winter Olympic Games in PyeongChang (Republic of Korea) and the Asian Games in Jakarta (Indonesia). This is a great result, but the cost of the license and the investment involved in producing a live broadcast are immense. Unofficial reports suggest that a fee of around USD 400 million has been paid to secure TV broadcasting rights for the 2024 Olympic Games in Paris.
Broadcast signals under threat in the digital environment
Although higher ratings for major sports events have generated increased advertising revenue, the soaring cost of sports broadcasting rights for media companies in recent years has put significant operational pressure on broadcasting organizations.
As noted by the Asia-Pacific Broadcasting Union (ABU), the world’s biggest broadcasting union in terms of membership, high levels of signal piracy are seriously threatening the survival and development of the live sports broadcasting business. The most common forms of broadcast signal piracy as outlined in The World Broadcasting Unions and the WIPO Broadcasters’ Treaty, are:
- “Unauthorized retransmission of broadcasts by re-transmitters operating in neighboring countries;
- Unauthorized retransmission and other use of broadcasts via the Internet, either simultaneously or at some time after the broadcast;
- Distribution of unlawfully recorded broadcasts, including those program-carrying live sports events;
- Broadcast or cable distribution of pre-broadcast satellite signals, which carry sports and other types of programs; and
- Unauthorized manufacture, importation and distribution of decoders and other equipment that permit unauthorized access to, and distribution of, television services.”
Data from cybersecurity company, Irdeto, show that “content theft by pirates has become a fully-fledged business and a formidable competitor to established pay TV operators”. In 2016, Irdeto reported that it had found more than 2.7 million advertisements on e-commerce websites, including Amazon, eBay and Alibaba, for illicit streaming devices. Data from leading data analytics service, SimilarWeb, show that the growth in global traffic resulted in more than 16,460,000 visits per month to the top 100 pirate IPTV supplier websites. Rampant signal piracy is a disaster for the exclusive TV rights holders of sports events. As pointed out by Christopher Shouten, Senior Product Marketing Director of NAGRA Kudelski, a global leader in digital security and convergent media solutions, “the bright lights of televised sports are also drawing in an ever growing number of pirates. And TV rights holders are seeing their returns eaten away as it becomes easier than ever to disregard the law. Case in point: Sky, the largest English Premier League rights holder, has seen profits fall 11 percent in the last nine months alone”.
Television broadcasting has been the catalyst for the development of the sports economy.
Similarly, in China, signal piracy poses a big threat to live sports broadcasting. Data from Bright Media Technologies show that during the 2018 FIFA World Cup in Russia, 1,043 signal piracy links were found across multiple platforms, including audiovisual websites, live broadcasting apps and OTT boxes. Without adequate protection of the live sports “signal,” the piracy that takes place undermines the interests of broadcasters who pay vast sums for the exclusive right to broadcast an event. This, in turn, threatens the main source of revenue for organizers of major sports events.
The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), concluded in 1961 and 1994, respectively, do little to address the realities of present-day digital broadcasting, nor do they adequately protect the broadcast signal in the digital environment. This puts the global broadcasting industry in a difficult situation when it comes to fighting online piracy. For many years, broadcasters have appealed to the international community, underlining the growing challenges of signal piracy and the urgent need to update their neighboring right. WIPO’s Standing Committee on Copyright and Related Rights (SCCR) recognized the need to address this question over two decades ago in 1998. Moreover, the rapid evolution of broadcast technologies in recent years means that the way in which broadcast signals are delivered and consumed bears little resemblance to the situation that existed in 1961, when the Rome Convention was concluded. This is the case for sports broadcasting and all other types of programming. That is why it is imperative to address all forms of signal piracy properly. For CCTV, and colleagues in the Asian region, it is vital that the ongoing negotiations at WIPO are concluded and that an international agreement on updating the rights of broadcasting organizations is finalized swiftly.
How to judge whether live sports programs qualify for copyright protection?
Another hotly debated issue in China is the question of whether or not a live sports “signal” – here signal means the audiovisual program of live sports carried on the broadcasting signal – can be considered an audiovisual work rather than an audiovisual recording, and qualify for protection as such. The issue of how to determine the originality of an audiovisual work by the expression of camera shots and montage sequences is an interesting question about which, I have written in some depth in A Study on Copyright Protection of Live Broadcasting Programs. However, there is still no clear answer and this issue has been the subject of a long dispute in China. Under Chinese Copyright Law, the definition of an audiovisual recording is similar to that found in German Copyright Law (paragraph 95). In both cases, such a work relates to a moving image, or sequence of images, which qualifies for protection as a neighboring right, rather than copyright in the narrow sense. However, the scope of the right in each law is different.
Under Chinese law, the owner of rights in an audiovisual recording does not have an exclusive right or the right to forbid the retransmission of the audiovisual recording on the Internet. In China, this debate was triggered by a famous lawsuit before the Beijing Chaoyang District People’s Court (No. 40334 Chao Min (IP) Chu (2014)), which heard arguments relating to the nature of live sports programs under copyright law. In that case, the court declared that, although there are no criteria for originality regulated by law, the act of choosing and editing audiovisual images of sports events constituted an act of creating. As such, the court held that the audiovisual images (of live sports broadcasting) attained a degree of originality, and qualified for copyright protection under Chinese Copyright Law. This high-profile case is now widely known among China’s legal community as “The First Trial Regarding Copyrightability of Sports (Live) Program (FTRCSP)”.
Meanwhile, a number of other courts have declared that the audiovisual images of live sports were not sufficiently original to qualify for protection as audiovisual works (cinematography works) and should be regarded as “audiovisual recordings”, protected by neighboring rights (see No. 752 Shi Min (IP) Chu (2015); No.174 Shen Fu Fa Zhi Min Chu (2015)). The argument is still raging and the FTRCSP currently is the subject of a retrial by the Beijing Superior People’s Court.
The protection of the broadcasters’ neighboring right is independent from the protection of the program content carried by the signal. For example, regardless of whether a live TV show is considered an audiovisual work or only a recording of moving images, the broadcaster of that TV show enjoys the exclusive right to protect the program-carrying signal. The latter is based on the broadcaster’s intellectual and financial investment, and its contribution to society, and is separate from the rights a broadcaster may enjoy in programming content. It is widely understood and an entirely accepted practice in copyright law for several categories of right-holder to be associated with a work. Take a musical recording, for example, which can have three different types of right holder: the producer of the recording or phonogram, the author(s) of the recorded musical work, and the performers of the work. Each enjoys separate and independent rights in that work. The phonogram producer is protected irrespective of whether the recorded musical work is in the public domain or the performance is protected.
Rejecting the copyrightability of live sports programs simply to bolster the significance of broadcasters’ rights does a disservice to the production teams responsible for developing sports programming, including, but not limited to, the director of the live sports program, cameraman, cutter, recording director, slow-motion director, the designer and producer of special effects, subtitles, and others. And, if live sports programs are only protected by the broadcaster’s right, then it is possible that another loophole is created in relation to the protection of the exclusive rights of new media operators.
Solutions to these emerging challenges are not beyond our reach. Since its birth, copyright law has evolved in response to technological developments. Today, the production of live sports programming is much more sophisticated than in the past. New audiovisual media are entering the live sports market and these players also need to be able to protect the live sports programs they produce. However, as yet, there are no clear-cut answers. In Europe, for example, the question of whether a live television program qualifies for copyright protection remains unresolved. The reason for this may be related to the dearth of court decisions on the matter.
It is high time to reinforce the protection of broadcast signals of live sports in the broadcasters’ neighboring right in the digital environment. And amid the ongoing transformation of the sports broadcasting landscape, the time is certainly ripe to start thinking about moving beyond protecting the broadcast signal and to consider protecting live sports coverage itself under copyright law.
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