By Wang Feihong (partner) and Liu Ying (senior associate)
China has always been known for its sporting prowess. With a well-established popularity, the sports industry enriches people’s lives and has become an important sector for China’s economic reform. In 2014, the state department released Several Opinions of the State Council of the People’s Republic of China on Accelerating the Development of the Sport Industry and Promoting Sport Consumption, contemplating the rolling out by 2025 of a comprehensive system of sporting activities, with new products, a mature market mechanism, and catering for greater consumer demand. Sport industry revenue is expected to exceed RMB 5 trillion, becoming a driving force of economic and social advancement.
Sporting tournaments, an integral part of sport activity, are a key component behind the success of the industry. Accordingly the state department is promoting various types of sports tournaments.
This article discusses whether sports tournaments are protected by copyright, which would facilitate the development of the sports industry.
1. Can sporting competitions be categorized as a “work” protected under the Copyright Law?
First, we need to be clear about what constitutes “work”, a basic concept in the Copyright Law. According to the Chinese Implementations of the Copyright Law, the term “work” refers to creations of the intellect in the field of literature, art, science and so on. that is original and can be reproduced. Therefore to be considered as such a “work”, sports competitions should first be creations of intellect, and second, be original and capable of reproduction.
Works listed under Article 3 of the current Copyright Law of PRC include written works and oral works; musical, dramatic, quyi, choreographic and acrobatic works; works of fine art and architecture; photographic works; cinematographic works and works created by a process analogous to cinematography; graphic works such as drawings of engineering designs and product designs, maps and sketches, and model works; computer software; and other works as provided for in laws and administrative regulations.
In June 2014, in the Copyright Law of the People’s Republic of China (draft) released by the State Department, works under protection were further extended to 16 categories including written works, oral works, music, drama, folk art, dance, acrobatics, fine arts, architecture, photography, film works, blueprint, design forms, maps, illustrations, computer software, and other literary, artistic and scientific works..
Some argue sports cannot be “works” under the Copyright Law, because they are not original, and cannot be reproduced. They contend that sporting competitions are to showcase performance rather than being creations of mind. Additionally they argue that the results of competitions depend on the training and experience of participants and have nothing to do with the originality required in the Copyright Law. What is more, sport competitions cannot be reproduced. All athletes aim to win, not to imitate anyone else’s moves or to express their own intellectual creation. It is impossible for them to deliver exactly the same performances as before. Some scholars believe that the spirit of “faster, taller and stronger” in sports is different from the essence of creative “works”.
Before drawing a conclusion on the originality and reproducibility of the sports category, we need to reflect on the classification of sports.
The classification of sports varies between countries. In China, sports are divided into competitive sports and sports for the general public, or competitive and non-competitive sports. Internationally, sports are can be divided into Olympic and non-Olympic sports.
Olympic sports are also various. The 2008 Beijing Olympics, for example, included altogether 28 sports, among which swimming had more sub categories than any others.
Non-Olympic sports include bowling, billiards, cricket, sport dancing, squash, martial arts, board games such as Weiqi and Chinese chess, sepak, roller-skating and so forth.
Undeniably, since some sports are mainly about demonstrating the skills of athletes, such as track and field and ball games, it is hard to regard them as original and reproducible works. On the other hand some sports like rhythmic gymnastics, synchronized swimming, figure skating, ice dancing, dance sport, and board games can be original works of athletes that can be reproduced.
Rhythmic gymnastics, synchronized swimming, figure skating, ice dancing and dance sport are similar to choreographic and acrobatic works which are specifically protected under the Copyright Law. They are all prepared with set moves, costumes, music, lighting and staging. The only difference is that the performance is competitive, based on the skill of the athletes. However, the performance of the athletes also involves creativity conveying beauty and the performers’ thoughts.
It is difficult to distinguish sports based on creativity of performance from purely competitive ones. Competitive sports cannot be ruled out as works to be protected by the Copyright Law just because they involve only a certain degree of improvisation on the spot. Putting all competition-related factors aside, some sports showcase creative thoughts and special artful mindsets and can be reproduced. Therefore, they should fall to be categorized as “works” and should be protected under the Copyright Law.
Some scholars worry, that certain moves such as the gymnastic moves the Thomas Flare and the camel spin may be monopolized if sports moves are protected by copyright. Such worries are unnecessary, since such moves are more hard skills than creations, and therefore not copyright protected as works. If they are presented with accompanying music, costumes and a series of moves, they would be considered choreographed works as defined in Copyright Law.
The copyright discussion so far canvassed is all about individual performances in sports competitions rather than about sports competitions themselves. Of course an innovative sports competition can be specifically protected by the Copyright Law as a “work”.
Works presented in rhythmic gymnastics, synchronized swimming, figure skating, ice dancing and dance sport are created by coaches and contestants generally only for to enable a performance that meets a required format. Recognition that was worthy of copyright protection would undoubtedly motivate coaches and contestants to be more innovative.
Copyright has been a rather contentious issue with board games due to controversies on whether a player has authorship over a particular set of moves. Currently the mainstream opinion is negative, since it takes two sides to be a competition, and a single contestant cannot create the moves for both sides. Furthermore, since players are simply strategizing rather than creating the moves of their own will, the moves in competitions can’t be protected by the Copyright Law even though they are creations of intellect.
This is disappointing, for board games are fabulous and demonstrate the talent and skills or each player, but these creations of mind are not protected under the Copyright Law
Can we figure out a way to protect a chess player’s intellectual production? Chess moves in a chess manual are not created by any single player and are not protected as “works”. However, players may qualify to claim authorship over chess manuals if they replay the chess moves, analyze the strategic and psychological behavior of players, and give their own account of the game, for a chess manual is then an original work. A player may select and compile manuals of past games and claim copyright in the work since it sets out the player’s original thoughts. If such works are created in the course of employment, the actual ownership may be the employer’s.
2. Whether the transfer of broadcasting rights by organizers of sport events is based on copyright and is eligible for copyright protection?
The transfer of broadcasting rights discussed here refers to the broadcasting rights granted to television and media organizations by sports events organizers. Sometimes these are termed “rebroadcasting” rights. The right to live broadcasting is different from the right of media to profit from broadcasting events. It is considered that the former right is the basis and source of the latter right.
Advances in communications technology have revolutionized sports and accelerated its industrialization. Experts believe, for an event, the number of cameras set up in a stadium is a better barometer of economic value than the number of tickets sold. The audience not present decides the size of the market and the profit that ensues. It is a win-win situation: the sports organizers can profit from selling the broadcasting rights to television and media organizations.
Currently the right to live broadcasting has hit a bump in China because there is uncertainty about its protection, as neither the Sport Law nor the Copyright Law expressly consider it.
Internationally, the right can be traced back to as early as 1958, when the IOC(International Olympic Committee) amended the Olympic Charter to include the right to authorize live broadcasting, thus setting the precedent.
The IOC reclaimed certain rights concerning live broadcasting such as decision making in 1992 and distribution of profit control in 1995. The sale of broadcasting rights has been an important source of revenue. Statistics show profits originating from live broadcasting account for 47% to 53% of the Olympic profits while the sale of tickets accounts for only 5% to 17%.
The 2008 Beijing Olympics marked the beginning of live broadcasting over the Internet by the International Olympic Committee. A number of other sports organizations started following suit. In response, laws were enacted and implemented by some countries to explicitly provide sporting events-related rights and ownership.
Comparatively, China’s rules are underdeveloped, and thus undermine the potential of live broadcasting. For instance, it is well known that the live broadcasting of NBA contributes up to 3 billion dollars of revenue while many clubs in China, such as CBA are still negotiating with local TV stations and even paying to broadcast their events. Today it is unrealistic to expect a profit from broadcasting rights.
The Chinese Football Association Super League, is a well-established event in China’s sports market. In 2013, its sale of broadcasting rights accounted for only 2% of total income, while the figure for the Premier League was 46%. It is the same for the Shanghai Masters, in any other place but Shanghai, the ATP World Tour receives most of its income from the sale of broadcasting rights.
The legal uncertainty and lack of express regulation is an obstacle in pushing live broadcasting forward. Therefore, we consider the explicit provision of law covering the basis and source of broadcasting rights is needed.
Currently the rights of live broadcasting owned by sports organizations are varied and uncertain depending on the particular sport .
In rhythmic gymnastics, synchronized swimming, figure skating, ice dancing and dance sport, routines which are original and reproducible and can be categorized as “works” should be included in amendments to the Copyright Law as “sports works” or “special sports works”, or integrated into the category of “choreographic and acrobatic works”. Organizers of such events could then enjoy copyright protection by signing an authorship transfer agreement with the creators of these sports works. By doing so, the organizers would then be entitled to the right to broadcast those sports works.
As for sports that are difficult to categorize as “works”, they could be classified as intangible assets for better protection. For instance, the Olympic Charter could be followed in its grant of intangible assets to organizers.
The sports industry would benefit from a crackdown on copyright violations and specific penalties to protect the legitimate rights of organizers of sports events.
In conclusion, we consider the protection of sports events by specific laws and regulations covering sports and the rights of sports events organizers are necessary for promoting the sport industry and realizing the goal of public health.
Editor’s note: this article was simultaneously published on Chinalawinsight.com