Live broadcasting of sporting events: a trigger to the revolutionary reform of Chinese copyright law by transforming the condition of originality
Shujie Feng Associate Professor, Tsinghua University, School of Law

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Fang Fang PhD candidate, Tsinghua University, School of Law

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Category:
Research Article
Page Range:
400–424
Published:
31 Oct 2022
DOI:
https://doi.org/10.4337/qmjip.2022.03.05
Volume/Issue:
Volume 12: Issue 3
Keywords:
live broadcasting of sporting events; cinematographic works; audiovisual works; originality
Full access

In Chinese law, the seemingly transparent condition of originality has been used to classify audiovisual productions into two categories: videograms protectable by neighboring rights and cinematographic works protectable by copyright, the latter of which benefit from a higher level of protection. However, the reality is that audiovisual productions often involve the intellectual efforts of their production teams, as shown through the live broadcasting of sporting events, such that one cannot completely deny the absence of originality therein. In addition, considering that the legitimate interests of TV and broadcasting organizations are justified by their significant investments and the need to prohibit rampant retransmission of their broadcasts on the Internet, it is no longer possible to maintain the distinction between cinematographic works and non-copyrightable audiovisual productions. In these circumstances, a series of famous cases and doctrinal debates regarding live broadcasting of sporting events have triggered the revolutionary reform of the Copyright Law of China in 2020, in which the statutory category of cinematographic works has been replaced by audiovisual works. This reform has not only granted copyright protection to all audiovisual productions but has also adopted the minimum threshold requirement for which copyrightable works may qualify for originality. This minimum threshold will likely further open the door of copyrights to encompass all productions vital to industries.

INTRODUCTION

Theories and rules on copyright were imported into China with the enactment of the Copyright Law of 1990. Since then, the Chinese Copyright Law has been interpreted and applied in light of the conventional concepts and principles on copyrights such that China’s policies mirror those of Western countries, the exporters. Such imitation is a normal and even inevitable way for countries like China to transplant intellectual property concepts into their domestic legal system and society. However, imitation is not easy work. For one thing, though the imported law appears to be latently complete, when applying it to concrete cases, it is clear that such completeness is lacking. In other words, Chinese legislators and judges are as confused as their Western country counterparts when experiencing difficulties in applying the common principles or rules. For another thing, like most importers of copyright law, China has transplanted a mosaic of theories, concepts, and rules, making the building of China’s own copyright system indispensable. This implies that the imitator must find their own way to develop copyright law, which is possible only after digesting the transplanted elements and identifying the proper values for Chinese society. China’s experience in applying the concept of originality to audiovisual productions is a typical example in this sense.

Already, the condition of originality has not been applied in the same manner in the authors’ rights system and the copyright system. And, as a consequence, audiovisual works are protected under different regimes in the two systems.1 Countries that follow the authors’ rights tradition protect audiovisual works as original works of expressions, distinct from recordings or other manifestations thereof.2 For example, in France, audiovisual works are defined as ‘cinematographic works and other works consisting of animated sequences of images, with or without sound’.3 The language of the definition is broad and carries no distinction for documentaries, newsreels, or other types of film works.4 In contrast to this traditional view, in copyright systems like that of the US, ‘audiovisual works’5 are defined as a series of photographs projected in such a rapid succession as to give the illusion of motion and life, by depicting events, scenes, and movements taking place in space and time,6 and courts have held that the term ‘audiovisual work’ should be broadly construed to enable courts to deal with new technologies or new adaptations of technologies.7 Though both the laws of continental European countries and that of the US seem to broadly define audiovisual works, the standard of originality in the US is lower than that in continental Europe. This difference between the two systems has an historical origin: whenever there was a difficulty in assimilating audiovisual works into other classes of works or analogizing with them,8 while most authors’ rights countries reacted by creating a separate and distinct sub-category for audiovisual works, some copyright system countries (such as the UK) adopted a more radical solution and devised a specific-matter for films.9 Though the need to protect audiovisual works is universally recognized, there are still considerable obstacles to establishing further international harmonization.10

In Chinese law, continuous pictures of originality are protected as audiovisual works (cinematographic works and works created by a process analogous to cinematography) of copyright,11 and continuous pictures without originality are protected as video recordings12 of neighboring rights (neighboring rights). The level of protection for audiovisual works is higher than that of audiovisual recordings.13 However, the circularity and ambiguity which lie at the heart of intellectual property law subject-matter like originality endow it with the flexibility to accommodate unexpected forms of subject-matter.14 Thus, in the disputes of live broadcast sporting events,15 the issue is that continuous pictures of live sporting events constitute works created by a process analogous to either cinematography in copyright law or video recordings in neighboring rights law, the identification boundary of which is blurred. The qualitative dispute between audiovisual works and audiovisual recordings both in theory and practice had become one of the important themes in the third revision of the Chinese Copyright Law in 2020,16 in which the Chinese legislators changed ‘cinematographic works and works created by a process analogous to cinematography’ to ‘audiovisual works’.17 This reform is of revolutionary importance to Chinese copyright law because it has not only broadened the scope of copyright law to all types of audiovisual productions, but also established the minimum threshold requirement for which copyrightable works can qualify for originality.

In this article, we will first analyze how the protection of audiovisual productions has evolved in legislation and then, as an example, explore Chinese judicial practice regarding the protection of live broadcast sporting events. After that, we will discuss the key issue of the threshold for originality, both in Chinese law and practice and in comparative law, before forecasting the likely interpretation and application of the Chinese Copyright Law revised in 2020.

1 CHINESE LEGISLATION ON THE PROTECTION OF AUDIOVISUAL PRODUCTIONS

Chinese copyright law protects original continuous pictures as audiovisual works under the framework of a dichotomy in the authors’ rights system between copyright law and neighboring rights law. The third revision of the Chinese Copyright Law follows this existing approach, but changes ‘cinematographic works and works created by a process analogous to cinematography’ to ‘audiovisual works’ without further definition.

1.1 Evolution of audiovisual work-related legislation

‘The Copyright Law of the People’s Republic of China’ was promulgated on September 7, 1990 (then implemented on June 1, 1991), and amended twice in 2001 and 2010.18 The earliest 1990 Chinese Copyright Law stipulated ‘cinematography, television and video works’19 and ‘audio and video recordings’20 in copyright law and neighboring rights law, respectively. The former refers to original continuous pictures, and the latter refers to initial recordings of continuous pictures which do not include the former. In comparison with the legislation of authors’ rights system countries, the transplantation of authors’ rights system legislation into Chinese law has had some variations, that is, the scope of video recordings in Chinese neighboring rights law is restricted to cover only initial recordings of continuous pictures that do not qualify as having originality, rather than all initial recordings irrespective of originality. In other words, it is original continuous pictures and recordings of non-original continuous pictures that are protected in Chinese law.

In 2001, the Chinese Copyright Law was amended for the first time in accordance with the provisions of the Berne Convention,21 and ‘television and video works’ were changed to ‘works created by a process analogous to cinematography’22 with the intention of accommodating the televised recordings and videos produced by filming.23 However, there is no substantial change in its definition, except that the name of the carrier is changed from ‘material’ to ‘medium’.24 At the same time, the relationship between audiovisual works and video recordings remains unchanged.25 The second amendment of the Chinese Copyright Law in 2010 is consistent with the 2001 version’s rules on audiovisual works.26 The definition of audiovisual works and video recording both remained unchanged in the revised regulations of the Copyright Law in 2011 and 2013.27

To address the overlap of protection resulting from the authors’ rights system protecting both continuous pictures and their recordings, Chinese law clarifies that the scope of audiovisual recordings extends to recordings of continuous pictures with or without accompanying sound except for those of originality (which are protected as audiovisual works), that is, recordings of non-original continuous pictures. In other words, it is clear in the definition that the scope of the two types of works (audiovisual works and audiovisual recordings) are mutually exclusive, which results in separate protection where original continuous pictures are protected as audiovisual works28 and continuous pictures without originality may only be protected by their recordings. At the same time, Chinese law prioritizes creation above investment, meaning that the author’s rights in audiovisual works are more favored than the producer’s neighboring rights in the same. Producers of video recordings only enjoy the right to permit others to reproduce, distribute, lease, and disseminate such sound or video recordings to the public through information networks, as well as the right to receive remuneration for it,29 while the author(s) of a work can enjoy a total of four moral rights and 13 property rights.30 Is it advisable for Chinese law to define mutually exclusive definitions of audiovisual works and audiovisual recordings and distinguish their level of protection based on the importance of the producers’ or authors’ rights? Under the current practices, rights holders of live sporting events are dissatisfied with how video recordings are being protected and actively demand their protection as audiovisual works. This poses serious challenges to establishing the borderline between copyright and neighboring rights. Chinese legislators sought to clarify the situation in the third revision of the Copyright Law.

1.2 Reform within the 2020 revision of the Copyright Law

Adopted in 2020, the third revision of the Copyright Law commenced development in 2011, with the aim of meeting the needs of domestic expansion and progress.31 The legal concept of audiovisual works is developing rapidly in the sports and entertainment industries.32 Such rapid progress has resulted in a steadily increasing demand for protecting rights holders’ legal interests under copyright law, as evidenced by the large number of enforcement actions and campaigns conducted by Chinese copyright administrations.33 These administrations’ attention to and enforcement of audiovisual works is significant in that it has flexibly responded to the market demand for audiovisual industries and promoted their healthy development, especially in situations where the income structure of sports content in the current Chinese market has an inverse relationship to the benign income ratio (30 percent of advertising income and 70 percent of membership fees).34

The Copyright Law (Revised Draft for Review) was published by the National Copyright Administration on June 6, 2014, in which ‘audiovisual works’ were added in Article 5(12) to replace the ‘cinematographic works and works created by a process analogous to cinematography’. The definition of audiovisual works consisted of a series of continuous pictures with or without accompanying sound and which can be perceived with the help of technical equipment, including works created by cinematography, television series, and other similar methods of cinematography making. At the same time, this draft removed video recordings from the neighboring rights law.35 However, the draft caused a lot of controversy, and the revision process of copyright law was set back. Not until the draft revision of the Copyright Law was absorbed into the proposals of the ‘Legislative Plan of the State Council 2019’, to be submitted to the Standing Committee of the National People’s Congress for deliberation,36 did the third revision of the Copyright Law regain momentum. From April 26 to 29, 2020, the 17th meeting of the Standing Committee of the 13th National People’s Congress reviewed the ‘Copyright Law of the People’s Republic of China (Draft Amendment)’. The draft amendment was then published on the National People’s Congress of China website on April 30. It affirmed the change in the 2014 draft of replacing ‘cinematographic works and works created by a process analogous to cinematography’ with ‘audiovisual works’, yet it only retained the ‘audiovisual works’ term itself without its definition, and ‘video recordings’ was restored to the neighboring rights law.37

On August 8, 2020, the 21st Meeting of the Standing Committee of the 13th National People’s Congress reviewed the ‘Amendments to the Copyright Law of the People’s Republic of China (Second Draft)’, and then on August 17, The Amendment to the Copyright Law of the People’s Republic of China (Second Draft) was published on the National People’s Congress of China website. The second draft amendment combined the schemes of the 2010 law effective at the time, the 2014 draft, and the draft amendment of 2020, as well as adopting the expression ‘cinematographic works, television drama works and other audiovisual works’ without further definition.38 On November 11, 2020, the 23rd meeting of the Standing Committee of the 13th National People’s Congress passed the decision of the Standing Committee of the National People’s Congress on amending the ‘Copyright Law of the People’s Republic of China’, and the third revision of the Copyright Law, in which the expression of ‘audiovisual works’ was finally adopted without definition, ceased to be effective39 (Table 1).

Table 1

Audiovisual protection in the third revision of the Chinese Copyright Law
Table 1
Note: aAudiovisual works refer to works that are composed of a series of continuous pictures with or without accompanying sound and can be perceived with the aid of technical equipment, including works created by cinematography, television series, and similar methods of filmmaking.

The reform in the Chinese Copyright Law finally replaced the category of ‘cinematographic works and works created by a process analogous to cinematography’ with ‘audiovisual works’ while retaining the category of video recordings in neighboring rights law, in which a third approach exists outside of the authors’ rights and copyright systems (Table 2).

Table 2

Audiovisual protection in the Chinese Copyright Law
Table 2

Audiovisual works are the most socially active type of works today, and they are also an important element of the cinematographic industry with the most market prospects.40 In terms of forms of expression, ‘audiovisual works’ is larger in extension than cinematographic works, and can adopt an open, enumerated, and non-restrictive classification system to cover emerging new works.41 Now that the category of audiovisual works has been introduced, it may encompass some of the works that were initially in the scope of video recordings. Nonetheless, there are still a large number of mechanical recordings without manual choices, and it is obviously unreasonable to accommodate those non-original recordings into audiovisual works.42 Therefore, in judicial practice, when a video recording is not original, its video producer should be required to have substantive input into the content as a condition of protection, thus avoiding restrictions on freedom in the public domain.

In sum, the audiovisual works protected by the Chinese Copyright Law are original continuous pictures, and the third revision of the Copyright Law’s final scheme was to replace ‘cinematographic works and works created by a process analogous to cinematography’ with ‘audiovisual works’, which does not break through the third approach of distinguishing audiovisual works and audiovisual recordings that is based on the criterion of originality. The most recent Copyright Law Amendment does not define audiovisual works, nor does it specify whether audiovisual works should be interpreted as referring to the definition of ‘cinematographic works and works created by a process analogous to cinematography’ in the Implementation Regulations of the Copyright Law. Therefore, the primary concentration and achievement of the current reform of audiovisual works has been to determine a general consensus regarding integrated audiovisual works. As for how to interpret and apply audiovisual works in practice, mature judicial experience is needed to determine this, as well as an update to the Implementation Regulations of the Copyright Law. The following sections of this article will look at typical cases in Chinese law to analyze the problems and issues in current judicial practice and, from this analysis, it is concluded that the most critical issue behind the reform of Chinese law is the criterion of originality and how it should be evaluated. In this sense, the legislation and practice of Chinese law can provide references for the improvement of both the authors’ rights system and the copyright system.

2 JUDICIAL PRACTICES REGARDING LIVE BROADCASTING OF SPORTING EVENTS

Typically, continuous pictures of live sporting events is one of the more marginal types of audiovisual works. However, in recent years, the number of cases filed in Chinese courts has significantly risen, and a series of socially influential cases have emerged. Looking at the picture diachronically, in Chinese law the plaintiff’s causes of action regarding continuous pictures of live sporting events have transitioned from being considered video recordings to being considered works created by a process analogous to cinematography.43 In the early cases regarding continuous pictures of live sporting events, most of the judgments held that such continuous pictures were non-original or did not meet the originality requirement of copyright law, and thus could only be protected as video recordings.44 Later, some of the courts gradually began to recognize that live sports could in fact meet the originality requirement of works, resulting in a divergence in opinion, with one conclusion being to protect them in the open clause45 of works of copyright law, and the other being to protect them as works created by a process analogous to cinematography.46 For a long period of time, courts’ judgments on video recordings and works created by a process analogous to cinematography maintained parallel and harmonious outcomes, but yet appeared to overlap in content and reasoning, due to which some cases were revised. Presently, the latest trend in judgments has been to categorize the continuous pictures of live sports as works created by a process analogous to cinematography.47

2.1 Live broadcasting classified as non-original video recordings

The opinions of Chinese courts that the continuous pictures of live sporting events are video recordings can be described as follows.

  1. Purpose of documentary, that is: ‘The 2014 Brazil World Cup live broadcast program, produced and broadcast by CCTV, was produced and filmed for the purpose of presenting the whole process of the real and objective game for audiences. During the live broadcast of the game, each cameraman controlled the camera to film, and the TV director selected and edited the pictures taken by different cameras, all of which served documentary purposes’.48 The assumption here is that documentary is different from creativity, and thus there is a lack of originality, but such a rough judgment is more intuitive than rigorous.49

  2. Space for personalized choice and arrangement, that is: ‘Sports events are just the result of a series of unexpected situations. TV directors cannot control the progress of the game. The nature of live sporting events determines that TV directors and filmmakers are not in a dominant position in the programming of live sporting events. Thus, the choices and expressions that producers can make in accordance with their personal will in live sporting events are very limited’. This explanation is a general evaluation of the originality of live sporting events as a whole, rather than a specific analysis of the Brazil World Cup, in this case, and is contrary to the obvious fact that the filming of different live sports varies to a large extent, in aspects such as shooting, duration, cutting, etc.

  3. Height of originality, that is: on the one hand, the court affirmed that ‘TV directors choose and arrange from a large number of pictures, camera angles, and special effects, which is [in the nature] of [a] creative contribution and will be broadcast differently by different teams’. On the other hand, it determined that ‘the creativity it embodies is not enough to reach the height of originality of works created by a process analogous to cinematography as stipulated in China’s Copyright Law.’

The reason for the transition of judgment is that the copyright law protects works on the condition of the threshold of originality. However, whether there is a high or low threshold for originality, or whether it can only be determined as existent or non-existent, is still a matter of controversy. In cases where a high degree of originality was determined, what the court really considered was the necessity of protecting such work from the perspective of gaining social welfare,50 which is a discretionary determination. Without clarifying these controversies, the court concluded that ‘the live broadcasting of the World Cup in Brazil produced and broadcast by CCTV should be regarded as a video recording’.

2.2 Live broadcasting classified as works analogous to cinematography

In contrast, the opinions of Chinese courts that the continuous pictures of live sports events are works created by a process analogous to cinematography are as follows.

First is the question of minimum originality, that is, considering that the Chinese Copyright Law does not stipulate the height of originality, and taking into account the certainty and uniformity of application of law, the requirement of originality of works is the minimum.51 The court’s emphasis on the criterion of minimum originality is due to the fact that the protection level of works differs from that of video recordings in Chinese law. In other words, if the originality threshold is too high, many audiovisual works that should be included in the scope of copyright protection of works will be forced into video recordings, and thus cannot enjoy adequate copyright protection. All in all, the determination of originality here and in the aforementioned cases are both result-oriented judgments, which is in line with the sociological jurisprudence belief that the law should be compatible with real life.

Second, in addition to the setting of photography equipment and personal contributions to the shooting process, analysis of the originality of sports events (eg, the originality of the football games ‘France vs. Romania’ and ‘Switzerland vs. Albania’ in the 2016 European Football Championship) is mainly reflected in the following aspects: (1) Camera setting (there are 46 camera positions); (2) Lens switching (the cameraman uses lens switching to shoot people or events in the same scene in different ways, such as long-range, panoramic, medium-range, close-up, etc., and this allows audiences to have a more vivid experience when watching sporting events); (3) Slow motion playback (use of unique methods, techniques, rhythms, and expressions also make the live event display a unique artistic expression that is different from other types of audiovisual works, such as movies); (4) Capture of skilled live shots (it is an important manifestation of the originality of the football game program to require photographers to have keen vision and rapid reaction capabilities); (5) Some football matches may be accompanied by a ‘story’ in real-time comment (live commentary makes it more attractive); (6) The personalized expression of the director (the control of the director plays a vital role in improving the rhythm and attractiveness of football matches in the broadcast of the game; (7) The personality and personal charm of the director (an important factor that determines the overall quality of the broadcast); plus there are also other factors that make the live broadcasting of sporting events original such that they can be determined as works created by a process analogous to cinematography.

The analysis of the above aspects, such as multi-camera and camera switching, slow-motion close-ups, personalized selection and arrangement space under the director’s control, is worthy of establishing a detailed and convincing evaluation. Nonetheless, it is still necessary to point out that the contribution of live commentary to the originality of the continuous pictures is reflected in the combination of sound and pictures, rather than the content of the sound. In short, the originality of audiovisual works deals with the combination of continuous pictures and of pictures and sound, but not the content of pictures or sound expressed. Early in the Berlin Conference of the Berne Convention, it was recognized that cinematographic films themselves might constitute ‘creations’ eligible for protection under the Convention (Article 14(2)).52 That is to say, the element protected here was not the subject of the film, but the way in which this subject was treated – the combination of the incidents and the development of plot.53

In summary, Chinese law distinguishes audiovisual works and audiovisual recordings based on the criterion of originality and grants each different levels of protection based on the importance of the concept of creativity, but it is difficult for this to be perfectly executed in practice. The main reason for this difficulty is that interpretation of the criterion of originality is far from objective, and so the rights holder litigants will undoubtedly choose the course of action that maximizes their own interests, which results in a type of work possessing a high level of protection (works created by a process analogous to cinematography), increasing in value and popularity on the one hand, while, on the other hand, the type of work with a low level of protection (video recordings) is rendered virtually pointless. However, in addition to the legal issues, from a practical perspective, the industrial interests of both parties are often also considered when determining the criterion of originality. A comprehensive analysis of both the legal and utilitarian aspects is key to interpreting the issue of originality.

3 CRITERION OF ORIGINALITY: A MATTER OF YES/NO OR HIGH/LOW?

The significant controversy in the evaluation of audiovisual works in Chinese law is whether its originality is a question of higher level vs. lower level or a question of present vs. not present, that is, ‘high/low’ or ‘yes/no.’ The answer to this requires an analysis of the scope of protection of copyright law, as well as a comparison between the authors’ rights system and the copyright system. In this sense, we must rethink the rules of Chinese law from the perspective of the general consensus amongst comparative law.

3.1 Consensus and divergence in comparative law

When dealing with the subject-matter of copyrights, the law still often finds itself in the uncomfortable situation where it must first define the nature of intangible property.54 The term ‘work’ itself is only officially defined by the list of categories of works in Article 2 of the Berne Convention, and is synonymous with the term ‘intellectual creations’ coined by a WIPO Committee of Experts, who further determined that such a creation should contain ‘an original structure of ideas or impressions’. Originality is ‘an integral part of the definition of the concept of work’.55 For the purposes of copyright protection, the ideas in the work do not need to be original, but the form of expression must be an original creation by the author.56

That being said, the Berne Convention leaves the contours of originality to national determination, which leads to differences between countries as to the definition and degree of originality required.57 On the one hand, originality is interpreted as the ‘author’s personal intellectual creation’. Under the French copyright law, originality is the subjective notion that work is an expression of its author’s conception and personality.58 The classic originality test is creative choices, that is, the choices the author made that were guided neither by applicable standards, the method used to create the works, nor considerations of optimal functionality and efficiency.59 In the EU, works are protected by copyright only if they are original in the sense that they are their author’s own intellectual creation.60 Thus, it is not sufficient that the creation of a work (a database in that specific case) requires labor and skill.61 However, the CJEU rulings may lead to a slight adjustment and not a fundamental change of the UK originality definition, and a work meets the ‘original’ standard to qualify for copyright protection as long as it is the result of its author’s own skill, labor, judgment, and effort.62

On the other hand, another interpretation of originality is that it requires ‘a minimal degree of creativity’, a determination which originated from the US Supreme Court decision of Feist Publications, Inc. v Rural Telephone Service Co.63

Original,64 as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low, and even a slight amount will suffice.65

The Feist decision, which changed the ‘sweat of the brow’ doctrine in US law, also had an international influence. A notable example in this regard may be the ‘skill and judgment’ criterion of originality in Canada,66 that is, the exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.67 Thus in practice, although a news event is not subject to copyright, a motion picture or videotape depicting that event is copyrightable,68 and the same goes for the broadcast of professional basketball games, since the cameramen and director contribute creative labor to the telecasts.69

The above two views are in line with the different conceptions of French copyright law as author oriented and Anglo-American copyright law as society oriented.70 However, no matter how lofty the former may be in its theoretical goals, it is more akin to ideology than to a normative framework suitable for governing human conduct and transactions. This lack of pragmatism leads to inefficient and incoherent outcomes.71 One example in practice is that in actuality French courts generally apply the American principle, under which originality only requires independent creation and a modest quantum of creativity.72 As a result, decisions on copyrightable subject-matter are very similar under French and American law.73 Another example is that the modern German doctrine combines a mostly subjective search for individuality (individualitit) with the requirement of a minimal threshold of creativity (gestaltungshohe),74 but there is no specific criterion for the minimal threshold. In a case involving computer programs, the court held that the originality standard would have to be lowered, at least for software.75 A lower requirement was also applied in a case involving maps, and another accepted that headnotes could be original.76 In short, the two views of originality both lead to the same destination: ‘a modest quantum of creativity’ or ‘a minimal degree of creativity’. The conclusion is that originality can only be determined as qualitative and yes/no, but not as quantitative and high/low. If a quantitative judgment is introduced, it will inevitably lead to subjective discretion.77

3.2 Debate and practice in Chinese law

Chinese law distinguishes copyright from neighboring rights and places emphasis on the original characteristics of works. However, there is no clear criterion for originality in practice. For example, in the guiding cases issued by the Supreme People’s Court, the determination of originality for a deductive creation only requires distinctive features, that is, despite the fact that the inspiration behind the creation of work involved in one case came directly from the batik back fan pattern of an existing work, the author had supplemented the shape of the bird and enriched the bird’s eyes and mouth with lines that made the bird graphic, and additionally the author’s own original creation had been integrated into the bird’s neck, feathers, and the fusion of a drum pattern in the middle of the work, which made it different from the traditional batik art patterns, meaning it could be protected by copyright law as a work.78 The perspective behind interpreting originality as distinctive features is a utilitarian trade-off, that is, exploring the economic value, characteristics of industry and work, social influence, and relevant public policy, etc., and taking them into consideration when determining whether an object can be protected as a work by copyright law.79 In the US, the primary challenge litigators face when interpreting the originality standard for digital ‘literary works’ is how to do so in a way that is both consistent with traditional principles of copyright law and with what is economically sensible practice.80

In sum, the distinctive features that determine originality in Chinese law are consistent with the criterion of minimum originality established in the Feist case, but they also give consideration to utilitarianism (discretion). In light of this, it is understandable that the qualitative nature of the continuous pictures of live sporting events has transitioned from video recordings to works created by a process analogous to cinematography. In similar disputes, such as those regarding short videos and live screenings of video games, the courts have also applied utilitarian considerations, holding that as long as the work is independently created by the author and reflects a certain degree of choice, arrangement, design, and other personalities, it should be determined to be a work of originality, and such originality is the minimum level of creativity necessary for a work to be considered original.81 Once the criterion of minimum originality is adopted to determine the works protected under audiovisual works, some of the works that do not meet the higher threshold of originality can be accommodated into audiovisual works, a practice which is in line with the expanding scope of audiovisual works in international copyright protection.82 Then, further research can concentrate on how to apply the criterion of minimum originality to the evaluation of audiovisual works.

4 FORECAST ON THE APPLICATION OF THE NEW COPYRIGHT LAW

Considering that originality is a matter of yes or no, not high or low, this chapter will look back first on the factors and then on the methods for the evaluation of the originality of audiovisual works based on Chinese judicial practice.

4.1 Factors for evaluating the originality of audiovisual productions

Currently, the reasoning given by Chinese courts on the originality of continuous pictures of live sporting events is relatively fragmented. However, a consensus has been emerging regarding the factors that should be taken into account to evaluate the originality of audiovisual creations. These factors consist mainly of the following manual contributions.

  1. The different settings of multiple-cameras and the choice, arrangement, and cutting of screen lenses, that is, the differences in the above lead to different final pictures, and different directors will present them in different ways.83 In German law, the essence of cinematography is the connection of pictures, so that through the sequential connection of active pictures (a series of pictures that are connected in time), cinematographic works express the content that a single picture cannot express.84

  2. The selection of close-up shots and special effects in the live broadcast. The selection and arrangement of camera angles, the special effects of replays, the close-ups of the matches, players (both on and off the field), and spectators, and the full and partial pictures in the live broadcast all require intellectual creation, and the appearance of the final broadcast will vary from team to team.85 In other words, the creative labor used in the process of cinematography is reflected in the process of integrating the various works needed for a production together into a whole and transforming the whole into visualized pictures.86 Cinematographic works must be the result of personal intellectual creation as well, not just the result of mechanically connecting photographic pictures, which a camera or other machine can do without any need for manual labor.87

  3. Commentary on live sports games.88

The above three aspects respectively focus on the methods and amount of shooting equipment, close-up shots on the live screen, and real-time commentary. The amount and methods of shooting equipment are the basis for the production of continuous pictures, but originality lies in a production’s structure and combination, rather than the number of continuous pictures or the originality of an individual picture. The close-up shots in a live broadcast contribute to its originality through the combination and structure of the pictures, which is of significant importance. As for the accompanying sound of continuous pictures, it is the connection between the picture and the sound, rather than the content of sound itself, that reflects the originality of audiovisual works.

4.2 Method for evaluating the originality of audiovisual productions

In the examination of the above-mentioned factors, we estimate that the following three steps will be the basis for the methods Chinese courts will use in evaluating the originality of audiovisual works. First, distinguish the continuous pictures from the content they carry. Second, clarify that the shooting cameras and skills of the continuous pictures help enhance the presentation of the information displayed by the pictures, but do not contribute to its originality. Third, if the connection and combination of continuous pictures have distinctive features and meet the criterion of minimal originality, the recording can be protected as an audiovisual work.

The continuous pictures of a live broadcast should be separated from the content or events they carry. The continuous pictures themselves are independent of the events presented by them. The events, whether it is a football match, a drama with a story, or a cinematographic script, do not affect the originality of continuous pictures. In Canada, broadcasts of professional basketball games were copyrightable, while underlying games were not ‘original works of authorship’ entitled to copyright protection.89 In the early disputes regarding sporting events in China, such as the case Network Infringement Dispute Case between Tiao Power Sports Communication Co., Ltd. and Shanghai Quantudou Network Technology Co., Ltd.,90 there arose a perspective that because an actual sporting event occurs objectively, and its results are contingent and uncertain, it is non-reproducible and thus does not belong to the works of copyright law. However, when the sporting events are recorded and broadcast with commentary, subtitles, close-ups, etc., and fixed on a certain carrier, as long as there is original intellectual creation, the broadcast may qualify as a work protected by the Copyright Law.91

The amount of shooting equipment and the diversity of shooting methods both contribute to enhancing the presentation of information carried by the continuous pictures, but neither is a sufficient condition for the originality of continuous pictures. It is the structure of how continuous pictures are combined together that is key in the evaluation of audiovisual works’ originality. The amount of shooting equipment ensures that the number of continuous pictures captured by multiple cameras is more abundant than that of a single camera when shooting the same scene within a particular period of time, thereby providing photographers with more opportunity for further artistic expression and arrangement. The type of shooting skill that has been emphasized in cases is the shooting angle. When taking the shooting angle as an element of originality for audiovisual works,92 it is necessary to distinguish the originality of a single lens from the originality of the continuous pictures, that is, the shooting angle chosen by photographer is of significance with respect to the originality of the single lens, which may be protected as photographic work, but the originality of audiovisual works is reflected in the combined structure of continuous pictures, rather than the originality of a single picture. In short, the number of pieces of shooting equipment or the choice of shooting angle can both serve as pre-conditions for the production of continuous pictures. For a given number and angle of pictures, if there is only a mechanical connection between the pictures, without an individual’s manual selection and arrangement, the final continuous pictures are not considered original. However, if the pictures are connected through manual selection and arrangement, the result may be original and protected as an audiovisual work in copyright law.

It is highlighted in practice that some courts have proposed a three-step hierarchical structure to determine the originality of continuous pictures,93 in which the multi-lens is regarded as the requisite method for picture selection and editing, and the originality of audiovisual works is evaluated in terms of a creator’s free choice and creative expression. However, the court denied the originality of the middle layer (continuous pictures formed by shooting with non-fixed cameras and using a small amount of lens switching), reasoning that its purpose of merely ‘faithfully recording and restoring the shooting content’ was insufficient to constitute intellectual creation.

The court’s decision seems to overlook two important considerations. On the one hand, purpose of shooting is not a sufficient basis for denying the originality of every different situation that can fall in the middle layer, and so the result of one subset of the middle layer cannot be used to deny the originality of the entire middle layer. On the other hand, while it is true that the opportunity for creative selection and arrangement within work that merely faithfully records and restores is relatively small, it does not mean that there is no space at all for personally subjective choice. If the recording time is long enough, even this small opportunity for creative selection and arrangement, when added together, may make the final continuous pictures distinct from others, thus meeting the minimum originality requirement. Therefore, if we take advantage of the simplified analysis model provided by the hierarchical structure, it is still necessary to evaluate a work’s originality from the perspective of a creator’s creative selection and arrangement, regardless of the purpose of recording or shooting.

Finally, the structure of how continuous pictures are combined, which is key to evaluating the originality of audiovisual works, can be determined by the creative choice and arrangement of picture combinations. When faced with the same scene, different photographers or directors will differ in their selection and arrangement of the photos, and if a difference is significant enough to give the work distinctive features, it will meet the criterion of minimum originality. For continuous pictures of live sporting events, shooting and combination are integrated at the same time during broadcasting, and filmmakers make personal choices and arrangements when combining continuous pictures, including the method of general recording and the insertion and switching of slow motion, as well as the combination of pictures and sounds (background music or commentary), etc. For large-scale sporting events, dozens of cameras are simultaneously used. A live football match lasts at least 90 minutes, the distinctive features of which are sufficient to meet the minimum originality requirements, so the recording may be protected as an audiovisual work in copyright law. However, in the bottom layer of the aforementioned hierarchical structure, continuous pictures recorded by only one camera at a fixed position, such as surveillance videos, are not audiovisual works. Therefore, whether the actual recordings are those of sporting events, live broadcasts of video games, short videos, or others, there is not a one-size-fits-all conclusion regarding the originality of continuous pictures, and they should be analyzed case by case based on the amount of opportunity to make creative selections and arrangements of the continuous pictures, and then the distinctive features can be evaluated as to whether they meet the criterion of minimum originality or not.

A method composed of the above-mentioned three steps would allow the courts to better apply the criterion of originality when identifying works, as well as effectively decide new types of cases such as live sporting events, ultimately promoting the steady development of emerging industries.94

CONCLUSION

The primary issue in the audiovisual works dispute caused by the live broadcast of sporting events is how to categorize audiovisual works. Countries using the authors’ rights system protect original continuous pictures as audiovisual works, while countries operating under the copyright system protect continuous pictures as audiovisual works irrespective of their originality. Chinese law draws on the rules of the two systems to open up a third approach. It protects audiovisual works and audiovisual recordings (video recordings) respectively by copyright and neighboring right, two regimes which are mutually exclusive. However, due to the controversy over originality and the fact that the protection of audiovisual works is much stronger than that of audiovisual recordings, the ideal scheme of Chinese law to put protection of creation above investment cannot be fully implemented in practice. Although the concepts and philosophies of originality in the authors’ rights system and the copyright system are different, in practice there is hardly any difference between them in adopting the criterion of minimum originality, which Chinese law has also adopted. With the reform in 2020, the Chinese Copyright Law has not only expanded copyright protection to all audiovisual productions, but also adopted the minimum threshold requirement through which copyrightable works qualify for originality. The latter will likely further open the door of copyright law to encompass all productions or creations vital to the industry. Such deeper analysis of the detours and schemes involved in the reform of China’s audiovisual works is valuable in that it could provide useful references to aid in the improvement and coordination of audiovisual works’ protection at an international level.

There is a note that the Copyright Law of the People’s Republic of China (2020 Amendment) was implemented on June 1, 2021, but the cases cited in this article were completed before the implementation of the new law in 2020, so, the expression

‘works created by a process analogous to cinematography’ at the time of the case judgment is adopted in the article. <http://www.npc.gov.cn/npc/c30834/202011/272b72cdb759458d94c9b875350b1ab5.shtml(2021-04-11)>.

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  • 1↑

    In each legal system, determination of the subject-matter for film protection depends on basic choices regarding the list of protected works and on the importance of ‘creative authorship’ in the rationale for copyright protection. Historically, the first approach to film protection was to protect films in the same manner as other categories of works. Such an approach could generate problems, especially in legislation that provides for a closed list of protected works. Such is the case in the United Kingdom, where, as a lingering legacy from the tradition of piecemeal legislation, determining the heading for protection is a prerequisite for copyright protection. Accordingly, film protection had to first be sought through an assimilation to existing classes of protected works, such as photographic and dramatic works, and this created difficulties in terms of definitions and boundaries for certain types of audiovisual works. In contrast, under the US Copyright Law and most other authors’ right systems, the list of protected works is only illustrative. As soon as a ‘work of authorship’ is original (and, in some countries, fixed in tangible form), copyright protection is in principle guaranteed. Thus, the definition of the subject-matter does not have the same importance. See:

    Kamina P , Film Copyright in the European Union , (Cambridge University Press , Cambridge, UK 2016 ) 64.

  • 2↑

    In authors’ rights jurisdictions, recordings attract protection under a specific neighboring right, distinct from the copyright of the recorded audiovisual work. As a result, in these countries both the audiovisual work and its recording are protected, but under two separate intellectual property rights: a copyright on the one hand and a neighboring right on the other. See: Kamina (n 1) 63.

  • 3↑

    See: Article L.112-2 of the Intellectual Property Code of 1985. Historically, the matter of film protection remained regulated until 1957 by the revolutionary laws of 1791 and 1793, which were left almost untouched. The law of March 1957 on Literary and Artistic Property included ‘cinematographic works and works produced by a process analogous to cinematography’ in the (open) list of protected works. The French law of 3 July 1985 has two main aims: (1) to modify and extend the law of 11 March 1957 regarding literary and artistic property, which covered neither audiovisual works nor the new methods of relaying them (arts 1–13 of the law); and (2) to add provisions relating to neighboring rights, performing artists, manufacturers of sound recordings and videos, television broadcasting bodies, computer software and collecting societies (arts 15–66). The supplement to Article 3 of the 1985 Law was placed in Article 1 of the new law, that is, a moving sequence of frames with or without a soundtrack. See:

    Plaisant Robert , '‘The French Law of 3 July 1985 on Authors’ Rights and Neighboring Rights’ ' (1986 ) 7 J. Media L. & Prac. 5, : 5.

  • 4↑

    The distinguishing characteristic of an audiovisual work is that it is a sequence of visual images, as opposed to a photograph, which is a single frame without movement. See: Kamina (n 1) 83. See also: Plaisant (n 3) 5.

    Another example of the authors’ right system is German law, which protects original continuous pictures as film works (Filmwerken) if their image cohesion and sound cohesion are original in the form of expression. See: Act 1965 on Copyright and Related Rights, last amended in 2017 (Urheberrechtsgesetz, UrhG), Section 95.

  • 5↑

    ‘Audiovisual works’ are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied. See: 17 U.S.C.A. § 101 (West).

  • 6↑

    Dubin Joseph S , '‘Motion Pictures – Rights: United States and International’ ' (1955 ) 28 S. Cal. L. Rev. 205, : 205.

  • 7↑

    See Midway Mfg. Co. v Artic Intern., Inc., 704 F.2d 1009, 1011, 9 Media L. Rep. (BNA) 1605, 218 U.S.P.Q. 791 (7th Cir. 1983) (the term ‘audiovisual work’ should be broadly construed ‘to refer to any set of images displayed as some kind of unit’). The United States Copyright Office has decided to allow the copyright registration of ‘colorized’ motion pictures. The Copyright Office determined that the selection and arrangement of colors through the use of modern technology which uses a pallet of 16 million colors constitutes sufficient originality for copyright protection. Also, audiovisual works’ qualifying for protection depends on whether the works meet tests for originality and fixation, but in determining the ‘originality’ of an audiovisual work for the purposes of copyright protection, whether ‘true artistic skill’ is implicated is irrelevant and is at most only involved in evaluating copyrights issued for works of art. See: M. Kramer Mfg. Co. v Andrews, 783 F.2d 421 (4th Cir. 1986); see also: 18 Am. Jur. 2d Copyright and Literary Property § 42.

    In other examples of the copyright system, such as the UK and Ireland’s copyright law, the main subject-matter for film protection is the visual recording, irrespective of any condition of originality. See: s 5 of the Copyright, Designs and Patents Act 1988 and ss 2 and 17 of the Irish Copyright and Related Rights Act 2000. See also: Kamina (n 1) 63.

  • 8↑

    As the imported regime may not be well adapted to some features of the new works (a constant claim of new industries to be carefully weighed).

  • 9↑

    Most authors’ rights countries reacted by creating a sub-category for audiovisual works, with specific features in terms of authorship, initial ownership, and sometimes moral rights. Such an adaption, however, is not always satisfactory, as unwelcome aspects of the general scheme can appear where there are gaps in specific regulations. On the contrary, some legislation adopted a more radical solution and devised a specific matter for films. This technique allows more certainty in the definition of the protected works and more freedom in the tailoring of a specific category adapted to the needs of the industry. This was the choice of the United Kingdom, which introduced in the Copyright Act of 1965 a specific subject-matter for audiovisual works. It was followed in Ireland by the Copyright Act 1963. See: Kamina (n 1) 64.

  • 10↑

    Actually, the establishment of the exclusive right of authors to authorize the reproduction and public performance of their works by cinematography (Berlin Act, art 14(1)) is an instance where the Convention had had an influence on the shaping of domestic laws, rather than vice versa, as cinematographic production had really come into existence in 1898. In the Brussels Conference of 1948, motion pictures and photographic works were for the first time given direct protection as an independent category of works, that is, cinematographic works and works produced by a process analogous to cinematography (art 2(1)). Later in the Stockholm Conference of 1967, there was is a notable change of the word from ‘produced’ to ‘expressed’ in order to emphasize that it was the form of work (the effects, sound and visual) that was at issue and not the method of making it public. However, no definition of ‘cinematographic works’ is given. The Treaty on the International Registration of Audiovisual Works [1989] changes it to ‘Audiovisual Work’, but there is no significant change in the subject-matter of its definition. The reason for replacing ‘cinematographic works’ with ‘audiovisual works’ is to cover a wider range of works, including not only cinematographic works, but also other works produced by similar methods (regardless of their production technology and purpose). See:

    Ricketson Sam & Ginsburg Jane C , International Copyright and Neighbouring Rights: The Berne Convention and Beyond , (Oxford University Press , Oxford 2006 ) 426.

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    See also: Committee of Experts on Model Provisions for Legislation in the Field of Copyright, Third Session, July 2–13, 1990.

  • 11↑

    The types of audiovisual works stipulated in China’s currently effective copyright law are ‘cinematographic works and works created by a process analogous to cinematography’, which refers to works which are recorded on some material, consisting of a series of images, with or without accompanying sound, and which can be projected with the aid of suitable devices or communicated by other means; see: Article 3 of the Copyright Law of the People’s Republic of China (20100226) and Article 4(11) of the Regulation for the Implementation of the Copyright Law of the People’s Republic of China (2013 Revision).

  • 12↑

    In the neighboring rights law of China’s Copyright Law, ‘video recordings’ refer to fixations of a connected series of related images or pictures, with or without accompanying sounds, other than cinematographic works and works created by a process analogous to cinematography. See: Article 5(3) of the Regulation for the Implementation of the Copyright Law of the People’s Republic of China (2013 Revision).

  • 13↑

    Differing from authors’ rights system countries which grant the same rights to the two types of works, under Chinese law video producers only enjoy five rights – reproduction rights, distribution rights, information network communication rights, lease rights, and licensed television broadcast rights – while the author of a work has four moral rights and 13 property rights. See: Articles 10 & 44 of the Copyright Law of the People’s Republic of China (2020 Amendment).

  • 14↑

    Sherman B & Bently L , The Making of Modern Intellectual Property Law: The British Experience, 1760–1911 , (Cambridge University Press , Cambridge and New York 1999 ) 58.

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  • 15↑

    Typical cases of copyright disputes in sporting events in China, such as: 1. ‘Beijing Tianying Jiuzhou Network Technology Co., Ltd. and Beijing Sina Internet Information Service Co., Ltd. Infringement of copyright and unfair competition disputes’, see: Beijing Chaoyang District People’s Court (2014) Chaomin (Zhi) Chuzi No. 40334, Civil Judgment. 2. ‘CCTV International Network Co., Ltd. v. China Chengshi Network TV Co., Ltd. Copyright Infringement and Unfair Competition Dispute’, please refer to: Shenzhen Futian District People’s Court (2015) Shenfufa Zhiminchuzi No. 174, Civil Judgment. 3. ‘CCTV International Network Co., Ltd. v. Shanghai Juli Media Technology Co., Ltd. Copyright Infringement and Unfair Competition Dispute’, please refer to: Shanghai Pudong New Area People’s Court (2017) Hu 0115 Min Chu 88829, Civil Judgment. 4. ‘American Business NBA Products Co., Ltd., Shanghai Zhongyuan Network Co., Ltd., Beijing Aiqiyi Technology Co., Ltd., copyright infringement and unfair competition disputes’, see: Beijing Higher People’s Court (2018) Jingminzhong No. 562, Civil Judgment.

    In the above judgments, some held that the continuous pictures of live sports events are regarded as video recordings, while some are identified as works created by a process analogous to cinematography. Under Chinese law, the producers of video products only enjoy five types of right: the right of reproduction; the right of distribution; the right of rental; the right of communication through information networks; and the right of broadcasting through television. The author of the work enjoys four moral rights and 13 property rights. The protection levels of the two are different. Considering that, the plaintiff has tended to choose to file a lawsuit against the claim to maximize his own interests.

  • 16↑

    The Copyright Law of the People’s Republic of China was promulgated on September 7, 1990 (implemented on June 1, 1991). The first amendment was made in 2001, the second in 2010, and the third in 2011.

  • 17↑

    Article 3 of the Copyright Law of the People’s Republic of China (2020 Amendment): ‘“Works” mentioned in this Law shall refer to ingenious intellectual achievements in the fields of literature, art and science that can be presented in a certain form: (6) audiovisual works.’

  • 18↑

    The reasons for the two amendments were to meet the needs of joining the World Trade Organization and to fulfill the World Trade Organization’s ruling on the Sino-US intellectual property dispute. These two amendments are both passive and partial, rather than active and comprehensive adjustments to meet the actual needs of domestic economic and social development. Historically, during the period of China’s planned economy, which lacked a local industrial foundation and demand for audiovisual works, copyright legislation was created mainly to meet the needs of the national development strategy at that time. Although doubts about the legislation’s effectiveness were expressed by legislators who had studied the authors’ rights system policies of France and Germany and the copyright system policies of the US, such doubts ultimately gave way to the national policy of Reform and Opening Up (1978–) and the joining of the World Trade Organization (2001). See:

    Xiaohong Yan, ‘Several Issues Concerning the Third Amendment of the Copyright Law’ (2012) 5 Intellectual Property.

  • 19↑

    In the Chinese Copyright Law of 1990, ‘cinematography, television and video works’ means ‘filming on a certain material, consisting of a series of pictures, with or without accompanying sound, and [such works] can be screened and played by appropriate installations’. See: Article 3 of the Copyright Law of the People’s Republic of China (19900907): The works referred to in this law include works of literature, art and natural science, social science, engineering and technology created in the following forms: (5) Cinematography, television, and video works. Article 4 of the ‘Regulations on the Implementation of the Copyright Law of the People’s Republic of China’ (19910530).

  • 20↑

    In the Chinese Copyright Law of 1990, ‘video recordings’ are stipulated in the neighboring rights law, referring to ‘any initial recordings of related pictures with or without accompanying sound, except for cinematography, television, and video works’. See: Articles 37–39 of The Copyright Law of the People’s Republic of China (19900907) and Article 6 of the ‘Regulations on the Implementation of the Copyright Law of the People’s Republic of China’ (19910530).

  • 21↑

    Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979), Article 2 [Protected Works]: cinematographic works to which are assimilated works expressed by a process analogous to cinematography <https://wipolex.wipo.int/zh/text/283698> (2020-3-24).

  • 22↑

    The Copyright Law of the People’s Republic of China (20011027), Article 3 [Works]. The works referred to in this law include works of literature, art and natural science, social science, engineering, and technology created in the following forms: (6) Cinematographic works and works created in a similar way to filming.

  • 23↑

    The legislative documents point out that a film is a special kind of work, being a comprehensive work of art created by many authors, such as the author of a novel, the author who adapted the novel into a screenplay, the author (director) who adapted the screenplay into a ‘split screenplay’, the photographer who shoots the cinematography, the songwriter who composes the music, and the author of the art design. There are some television recordings and videos that are created by many authors and made through the steps of filming which can be accommodated. See:

    Interpretation of the Copyright Law of the People’s Republic of China, China National People’s Congress website <http://www.npc.gov.cn/npc/c2200/200207/e6c91b342a9e48d4bbdc024b1d26c14f.shtml> (2021-04-11).

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  • 24↑

    Article 4(11) of the ‘Implementation Regulations of the Copyright Law of the People’s Republic of China’ (20020802): ‘cinematographic works and works created by a process analogous to cinematography’ refer to works that are a series of pictures with or without accompanying sound, filmed on a certain medium, and which can be screened or otherwise disseminated.

  • 25↑

    Article 5(3) of the ‘Implementation Regulations of the Copyright Law of the People’s Republic of China’ (20020802): ‘“video recordings” refers to any continuous related pictures with or without sound, except cinematographic works and works created in a way similar to cinematography’.

  • 26↑

    Article 3 of the Copyright Law of the People’s Republic of China (20100226): ‘“Works” referred to in this law include works of literature, art, natural science, social science, engineering and technology created in the following forms: (6) cinematographic works and works created by a process analogous to cinematography’.

  • 27↑

    See ‘Regulations for the Implementation of the Copyright Law of the People’s Republic of China’ (20110108), arts 4–5; and ‘Regulations for the Implementation of the Copyright Law of the People’s Republic of China’ (20130130), arts 4–5.

  • 28↑

    Chinese copyright law does not provide for recordings of original continuous pictures. According to the definition of mutually exclusive concepts of audiovisual works and video recordings, it can be understood that there is no distinction between original continuous pictures and their recordings.

  • 29↑

    Article 44 of the Copyright Law of the People’s Republic of China (2020 Amendment).

  • 30↑

    Article 10 of the Copyright Law of the People’s Republic of China (2020 Amendment).

  • 31↑

    The relevant policy backgrounds are as follows: The 17th National Congress of the Communist Party of China clearly put forward the strategic goal of ‘improving independent innovation capabilities and building an innovative country’; the Sixth Plenary Session of the 17th Central Committee proposed promoting the great development and prosperity of socialist culture, with special emphasis on ‘increas[ing] intellectual property protection and punish[ing] infringements in accordance with the law, protecting the legal rights and interests of copyright owners’. General Secretary Xi Jinping reiterated in his report to the 19th National Congress of the Communist Party of China the importance of accelerating the construction of an innovative country.

  • 32↑

    The Announcement on the Total Scale and Value Added of the National Sports Industry in 2017, issued by the National Bureau of Statistics of China and the State Sports General Administration on January 8, 2019, shows that the total scale (total output) of the national sports industry in 2017 was 2.2 trillion yuan, the added value being 781.1 billion yuan. In terms of nominal growth, total output increased by 15.7 percent throughout 2016, and added value rose by 20.6 percent. See:

    National Bureau of Statistics <http://www.stats.gov.cn/tjsj/zxfb/201901/t20190108_1643790.html> (2021-03-09).

  • 33↑

    One of the five key areas that the National Copyright Administration, the Ministry of Industry and Information Technology, the Ministry of Public Security, and the State Internet Information Office jointly launched in the 16th special action against online infringement and piracy focused on ‘carrying out special rectification of the copyrights of audiovisual works’. The top one of the ten major copyright events selected by the National Copyright Administration in China in 2019 was ‘remarkable results in cracking down on movie piracy in theaters’. See:

    Notice of the National Copyright Administration and others on launching a special action against Internet infringement and piracy ‘Jianwang 2020’ (National Edition Power (2020) No. 3) <http://www.ncac.gov.cn/chinacopyright/contents/483/417532.html> (2020-6-22).

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    See also:

    National Copyright Administration: Ten Important Events of Chinese Copyright in 2019 <http://www.ncac.gov.cn/chinacopyright/contents/518/412947.html> (2020-6-22).

  • 34↑

    On January 10, 2019, in an interview with reporters, Lingxiao Yu, President of Xinying Sports and CEO of iQiyi Sports, gave a detailed explanation of the various problems currently faced by China’s sports industry. See also:

    Jinlei Bai and Zijiao Chen, ‘Sports Copyright Market Users Are the Only Way Out for Giants Vying to Enter the Game’, Beijing News, January 12, 2019 <http://www.bjnews.com.cn/finance/2019/01/12/538871.html> (2019-10-26).

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  • 35↑

    The Copyright Law of the People’s Republic of China (Revision Draft Submitted for Review, September 2014) <http://www.gov.cn/xinwen/2014-06/10/content_2697701.htm> (2019-7-22).

  • 36↑

    Notice of the General Office of the State Council on Printing and Distributing the 2019 Legislative Work Plan of the State Council (Guobanfa [2019] No. 18).

  • 37↑

    Amendments to the Copyright Law of the People’s Republic of China (Draft) <http://www.ncac.gov.cn/chinacopyright/contents/11973/416082.html> (2020-6-20).

  • 38↑

    Another highlight of the second review of the draft is that it intends to distinguish the copyright ownership of audiovisual works. The second review of the draft adds provisions as follows: if other audiovisual works ‘constitute cooperative works or works for hire, the copyright ownership shall be determined in accordance with the relevant provisions of this law; if they do not constitute cooperative works or works for hire, the ownership of copyright is agreed between the producer and the author. If there is no agreement or the agreement is not clear, the producer enjoys it, but the author has the right to sign and receive remuneration. If the producer’s use of the audiovisual works specified in this paragraph exceeds the scope of contract or agreed customs of the industry, the author’s permission should be obtained.’ See:

    Amendment to the Copyright Law of the People’s Republic of China (Draft) (Second Review Draft) <www.npc.gov.cn/flcaw/flca/ff808081736ba7420173ec57d96d3b14/attachment.pdf> (2020-9-6).

  • 39↑

    Decision of the Standing Committee of the National People’s Congress on Amending the ‘Copyright Law of the People’s Republic of China’ (adopted at the 23rd meeting of the Standing Committee of the 13th National People’s Congress on November 11, 2020) <http://www.npc.gov.cn/npc/c30834/202011/272b72cdb759458d94c9b875350b1ab5.shtml> (2020-11-11).

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  • 40↑

    Weimin Li, ‘Establishment of the Legal Status of Audiovisual Works – From the Perspective of Cultural Security’ (2018) 2 Legal Forum.

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  • 41↑

    Haijun Lu, ‘Reflection and Reconstruction of the Definition of “Film Works”’ (2011) 6 Intellectual Property

    Xingfang Yang and Weimin Li, ‘Research on the Definition and Classification of Audiovisual Works: A Comment on the Amendments to “Audiovisual Works” in the Third Revision of the Chinese Copyright Law’ (2020) 3 Journal of China University of Political Science and Law.

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  • 42↑

    Considering that producers of such recordings will still pay substantial costs for investment or labor, protecting them in the neighboring rights law will not only affect the originality criterion of works, but also protect and stimulate the investors. At the same time, if we analogize the input of a video producer to that of a producer of sound recordings, there is no reason to distinguish between sound recordings and video recordings. Otherwise, different treatment will result in problems when there is overlap between audio and video recordings, ie, if the producer chooses audio recordings he can be protected, but if he chooses video recordings he is not protected, which is obviously unreasonable.

  • 43↑

    In comparative laws, the ideology similar to the transition of Chinese law from evaluating continuous pictures of live sporting events as video recordings to works created by a process analogous to cinematography can be found in German copyright law. As pointed out in an advisory opinion to the Chinese delegation on September 13, 2016 by Professor Adolf Dietz, ‘German copyright law does not require a high threshold for the originality criterion. Therefore, for the shooting of sporting events, symphony concerts, dramatic and song and dance performances, as long as there is a certain level of screen editing and arrangement, the originality requirements can be met and it can be protected as a cinematographic work’. However, ‘[c]onversely, stock-still recording of symphonic concerts, sports events, social events, etc. through a stationary camera is not original and does not belong to the works protected by the copyright law; but because of its economic value, the German copyright law does protect such dynamic pictures in neighboring rights law’. See: Meeting mit einer Delegation der State Administration of Press, Publication, Radio, Film and Television of the People’s Republic of China (SAPPRFT), am 13 September 2016, 15:00–17:00 H, im Max-Planck-Institut für Innovation und Wettbewerb.

  • 44↑

    For example, ‘CCTV International Network Co., Ltd. v. China City TV Network Television Co., Ltd. Copyright Infringement and Unfair Competition Dispute’, see Shenzhen Futian District People’s Court, Guangdong Province (2015), Shenzhen Fufa Zhimin Chuzi No. 174, Civil Judgment.

  • 45↑

    The open clause of works of the Chinese Copyright Law in 2010 is Article 3(9), ie, other works as provided in laws and administrative regulations; the open clause of works of the Chinese Copyright Law in 2020 is Article 3(9), ie, other intellectual achievements that meet the characteristics of works. For example, ‘Beijing Tianying Jiuzhou Network Technology Co., Ltd. and Beijing Sina Internet Information Service Co., Ltd. copyright infringement and unfair competition dispute case’, see: Beijing Chaoyang District People’s Court (2014), Chaomin (Zhi) Chu Zi No. 40334, Civil Judgment.

  • 46↑

    For example, ‘CCTV International Network Co., Ltd. v. Shanghai Juli Media Technology Co., Ltd. copyright infringement and unfair competition dispute case’, see Shanghai Pudong New Area People’s Court (2017), Hu 0115 Min Chu 88829, Civil Judgment.

  • 47↑

    On November 11, 2020, in the second-instance judgment of ‘American Business NBA Products Co., Ltd., Shanghai Zhongyuan Network Co., Ltd., and Beijing Aiqiyi Technology Co., Ltd., copyright infringement and unfair competition dispute case’, Beijing Higher People’s Court revoked the first-instance judgment of the Beijing No. 1 Intermediate People’s Court, and held that in the production process of the NBA game program involved, a large number of lens skills, montage techniques and editing techniques were used in the shooting angle of the camera, the switching of the lens, and the selection of shooting scenes and objects. The selection, editing, arrangement, and out-of-picture commentary of the shooting pictures all reflect the individual choices and arrangements of creators such as photographers and directors, which are original (cannot be determined as mechanical recording) and already meet the originality requirements of works created by a process analogous to cinematography. See: Beijing Higher People’s Court (2018) Jingmin Zhong No. 562, Civil Judgment.

    Recently in comparative law, on July 2, 2020, the Supreme Court of Austria held in the Bundesliga Broadcasts case that ‘the live transmission or recording of the game constitutes a protected cinematographic work within the meaning of Sec. 4 of the Copyright Act. The film director selects the best of the shots on the basis of his own creative decision and determines the use of slow motion and repetition. In addition, the commentary also permits individual attribution (4 Ob183/13g [1.5]; cf. also 4 Ob 208/15i). The plaintiff was granted the exclusive right to use the work by the film producer.’ See:

    Decision of the Supreme Court of Austria (Oberster Gerichtshof) 2 July 2020 – Case No. 4 Ob 86/20f. The English translation of the case is cited from: Copyright Act, Secs. 4, 18(3). ‘Bundesliga Broadcasts’, IIC 52, 225–227 (2021). <https://doi.org/10.1007/s40319-021-01017-1>.

  • 48↑

    The analysis of video recordings is based on the typical case ‘CCTV International Network Co., Ltd. v. China City TV Network Television Co., Ltd. Copyright Infringement and Unfair Competition Dispute’, see: Shenzhen Futian District People’s Court, Guangdong Province (2015), Shenfu Law Minchuzi No. 174, Civil Judgment.

  • 49↑

    By analogy to the question of whether a painted copy is copying or a new creation, the mainstream view is that it needs to be analyzed in detail on a case-by-case basis. It is not concluded that all painting copies are copying without choice and arrangement.

  • 50↑

    For example, ‘Huang Haixing and Wuhan Saidong Qixing Clothing Co., Ltd. Appeal for copyright infringement disputes’ published in the eleventh issue of ‘People’s Justice Cases’ in 2018. The basic facts of the case were that the defendant, who was not authorized by the original copyright holder of the work Dabai, used Dabai in creating his own pictures. The created pictures are basically the same as the original Dabai works in terms of overall composition and constituent elements, and they all show the endearing image of Dabai, which is an illegally interpreted animation. The court then held that the illegal interpretation of cartoon images often occurs in the network environment, and if the originality threshold of such works is not raised, it may encourage plagiarism and violate the legislative purpose of the Copyright Law. Therefore, it is necessary to extend the threshold of originality to the illegal interpretation of cartoon images from the perspective of the nature of the cartoon images, the illegality of illegal interpretation, and the social value orientation and public interest of the judgment. See: The Civil Judgment of Zhejiang Hangzhou Intermediate People’s Court (2017) Zhejiang 01 Min Zhong 8083.

  • 51↑

    The analysis of works created by a process analogous to cinematography is based on the typical case ‘CCTV International Network Co., Ltd. v. Shanghai Juli Media Technology Co., Ltd. Copyright Infringement and Unfair Competition Dispute’, see: Shanghai Pudong New Area People’s Court (2017), Hu 0115 Min Chu 88829, Civil Judgment.

  • 52↑

    Cinematographic productions shall be protected as literary or artistic works, if, by the arrangement of the acting form or the combinations of the incidents represented, the author has given the work a personal and original character (Article 14(2)). See: Act of Berlin of November 13, 1908, p 229.

  • 53↑

    Ricketson and Ginsburg (n 10) 427.

  • 54↑

    Sherman and Bently (n 14) 192.

  • 55↑

    See:

    Judge Elizabeth F & Gervais Daniel , '‘Of Silos and Constellations: Comparing Notions of Originality in Copyright Law’ ' (2009 ) 27 Cardozo Arts & Ent. L.J. 375, : 401.

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  • 56↑

    WIPO, ‘Understanding Copyright and Related Rights’ (2016) 7 <https://www.wipo.int/publications/en/details.jsp?id=4081&plang=EN> (2020-6-15).

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  • 57↑

    WIPO Scoping Study on Copyright and Related Rights and the Public Domain, Prepared by Séverine Dusollier, May 7, 2010, pp 24–5 <https://www.wipo.int/publications/en/details.jsp?id=4143&plang=EN> (2020-6-15).

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  • 58↑

    See:

    Ginsburg Jane C , '‘French Copyright Law: A Comparative Overview’ ' (1989 ) 36 J. Copyright Soc’y U.S.A. : 269, 274 -5.

  • 59↑

    Judge and Gervais (n 55).

  • 60↑

    Infopaq International A/S v Danske Dagblades Forening, C-5/08, EU:C:2009:465. The CJEU further elaborated upon the notion of ‘author’s own intellectual creation’ in its subsequent decisions, notably (though not only) those in: BSA, C-393/09; FAPL, C-403/08 and C-429/08; and Painer, C-145/10. See also:

    Lau Eugene , '‘Originality in European Union Copyright Law’ ' (2015 ) 5 Southampton Student L. Rev. 46, : 47.

  • 61↑

    Rosati Eleonora , '‘Why Originality in Copyright Is Not and Should Not Be a Meaningless Requirement’ ' (2018 ) 13 (8 ) Journal of Intellectual Property Law & Practice : 597 -8 <https://doi.org/10.1093/jiplp/jpy084> (2020-6-16)..

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  • 62↑

    A Rahmatian, ‘Originality in UK Copyright Law: The Old “Skill and Labour” Doctrine Under Pressure’ (2013) 44 IIC – International Review of Intellectual Property and Competition Law 4–34 <https://doi.org/10.1007/s40319-012-0003-4>.

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  • 63↑

    In the case, the court ruled that the white pages listings of a telephone directory did not exhibit sufficient creativity in selection, coordination, or arrangement of data to satisfy the originality standard of US copyright law. See:

    Samuelson Pamela , '‘The Originality Standard for Literary Works under U.S. Copyright Law’ ' (1994 ) 42 Am. J. Comp. L. Supp. 393, : 394.

  • 64↑

    In a more general sense, there is no definition of ‘originality’ in the US as a matter of statutory law. The legislative history, however, demonstrates that Congress accepted that such a standard is established by courts, though it did further explain in that regard that ‘[t]his standard [did] not include requirements of novelty, ingenuity, or aesthetic merit’ and added that ‘there [was] no intention to enlarge the standard of copyright protection to require them’, House Report at 5664.

  • 65↑

    Feist Publications, Inc. v Rural Telephone Service Co., Inc., 499 U.S. 340 (1991).

  • 66↑

    To be ‘original’ under the Copyright Act, the work must originate from an author, not be copied from another work, and must be the product of an author’s exercise of skill and judgment.

  • 67↑

    CCH Canadian Ltd v Law Society of Upper Canada [2004] 1 SCR 339, 2004 SCC 13.

  • 68↑

    18 Am. Jur. 2d, Copyright and Literary Property § 42.

  • 69↑

    Nat’l Basketball Ass’n v Motorola, Inc., 105 F.3d 841 (2d Cir. 1997).

  • 70↑

    Conceptions of French copyright law as author-oriented and of Anglo-American copyright law as society-oriented carry certain corollaries. Similarly, the French perspective will most comfortably encompass works of discernible literary or artistic content, while the US emphasis on social utility may explain its historically vigorous copyright coverage of works such as compilations conveying much information but little subjective authorial contribution, as well as its present receptivity to computer program protection. See:

    Ginsburg Jane C , '‘Tale of Two Copyrights: Literary Property in Revolutionary France and America’ ' (1989–1990 ) 64 Tul. L. Rev. : 991.

  • 71↑

    Ginsburg (n 70).

  • 72↑

    Under both American and French case law, originality is distinct from novelty, and both legal systems appear to interpret the originality requirement very similarly despite the differing statutory language of each country’s copyright laws. Whereas French law formally defines originality as a print of the author’s personality, under United States law, ‘[o]riginality means that the work owes its creation to the author and this in turn means that the work must not consist of actual copying’.

  • 73↑

    Though different, there is no fundamental, rooted tension between American and French legal heritage vis-à-vis copyright laws. The first framers of copyright laws, both in France and in the US, sought primarily to encourage the creation of and investment in the production of works furthering national social goals. See:

    Piotraut Jean-Luc , '‘An Authors’ Rights-Based Copyright Law: The Fairness and Morality of French and American Law Compared’ ' (2006 ) 24 Cardozo Arts & Ent. L.J. : 549.

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    Ginsburg (n 70).

  • 74↑

    Influenced by Hegelian and Kantian theories, especially in Hegel’s case, German copyright law linked creative expression with the formation and development of personal autonomy and, therefore, attached great importance to artistic expression. In a case involving telephone directories, the Court held that the personal intellectual creation required for the assumption of a protected literary work can be found in the intellectual formation and structuring of the contents presented, or in the particularly imaginative form and manner of the collection, classification and arrangement of the material presented. However, there is small category of individual arrangement of the information contained which, even though following a complex system of rules, cannot be regarded as individual intellectual creations with the necessary level of creativity. See: Judge and Gervais (n 55).

  • 75↑

    In a case involving computer programs (Buchhaltungsprogramm), the court recalled the case (Inkasso), which denied protection to a computer program for lack of originality and stated that the originality standard would have to be lowered, at least for software. See: Buchhaltungsprogramm, BGH, 14 July 1993, [1993] CR 752–5. Translated in

    Gunther Andreas & Wuermelling Ulrich , '‘Software Protection in Germany – Recent Court Decisions in Copyright Law’ ' (1995 ) 11 Computer Law and Security Review : 12, 13.

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  • 76↑

    For headnotes, the court drew the line by accepting that concise formulation and structuring of the grounds for the legal decision amounted to a creative and individual activity, whereas simply stating the legal problem or a verbatim reproduction without classification did not. In the former situation, there was at least minimal room for choices made by the author.

  • 77↑

    Chen Li, ‘The Institutional Response to Copyright Issues in the Short Video Industry’ (2019) 4 Publishing and Distribution Research.

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  • 78↑

    In this case, the court held that copyright law protection never prohibits others from imitating properly, but they cannot copy other people’s original expressions. See: Guiding Case No. 80, issued by the Supreme Court of People: Civil Judgment of Guiyang Intermediate People’s Court of Guiyang Province (2015), Zhu Zhimin Chu Zi No. 17.

  • 79↑

    For example, ‘Huang Haixing and Wuhan Said Qixing Clothing Co., Ltd. Appeal Case for Copyright Infringement Dispute’, published in the journal of ‘People’s Justice – Case’ No. 11 in 2018, is a plagiarism dispute regarding an unauthorized anime image. The court held that if the issue of originality regarding the illegal interpretation of the cartoon image in the network environment was not raised, it could promote plagiarism and violate the legislative purpose of copyright law. Accordingly, from the perspective of the attributes of anime images, the illegality of illegal interpretation, and the social value orientation and public interest in evaluation, it was necessary to raise the issue of originality regarding illegal interpretation of anime images. See: Civil Judgment of Hangzhou Intermediate People’s Court of Zhejiang Province (2017), Zhe 01 Min Zhong 8083.

  • 80↑

    Pamela Samuelson (n 63) 417.

  • 81↑

    ‘Beijing Kuaishou Technology Co., Ltd. v. Defendant Guangzhou Huaduo Network Technology Co., Ltd. for copyright infringement disputes’, see Beijing Haidian District People’s Court (2017), Beijing 0108 Minchu No. 49079, Civil Judgment. The first-instance judgment of this case is the effective judgment.

  • 82↑

    Cinematographic works, to which works expressed by a process analogous to cinematography are assimilated, are primarily considered as films in the classic sense, whether silent or ‘talkies’, whatever their type (documentaries, newsreels, reports, or feature films made to a script), length, method of production (films on location, films made in studios, cartoons, etc.), or the technical process used (films on celluloid, video tape, etc.), whatever they are intended for (presented in cinemas or through television transmission), and finally whoever their maker may be (commercial production companies, television organizations, or mere amateurs). See: WIPO Guide, P15.

  • 83↑

    ‘Beijing Sina Internet Information Service Co., Ltd. and Beijing Tianying Jiuzhou Network Technology Co., Ltd. Copyright Infringement and Unfair Competition Dispute Case’, see: Beijing Chaoyang District People’s Court Civil Judgment (2014), Chaomin (Zhi) Chu Zi No. 40334, Civil Judgment.

  • 84↑

    The expression of the cinematography is embodied in the conception of the connection of pictures and sound, as realized in filming work that is based on a script. See:

    Zhang Enmin , [Germany] Rehbinder, Manfred , '‘Copyright Law’ ', (Law Press , Beijing 2005 ) 152 -4.

  • 85↑

    ‘CCTV International Network Co., Ltd. v. China City TV Network Television Co., Ltd. Copyright Infringement and Unfair Competition Dispute’, see: Shenzhen Futian District People’s Court, Guangdong Province (2015), Shenfufa Zhiminchuzi No. 174, Civil Judgment.

  • 86↑

    Zhang Enmin , [Germany] Manfred Rehbinder , Copyright Law , (Law Press , Beijing 2005 ) 152 -4.

  • 87↑

    Examples of non-original cases in German law are as follows: shooting military operations, shooting talk shows, pure documentary cinematography, shooting certain dramas or operas. See: Rehbinder (n 86) 152–4.

  • 88↑

    ‘CCTV International Network Co., Ltd. v. Century Dragon Information Network Co., Ltd. for infringement of the right of information network communication’, see: Guangzhou Intermediate People’s Court of Guangdong Province (2010), Suizhong Famin Sanchuzi No. 196, Civil Judgment.

  • 89↑

    Nat’l Basketball Ass’n v Motorola, Inc., 105 F.3d 841 (2d Cir. 1997).

  • 90↑

    The video of the dispute in this case is the AFC Asian Cup 2011 ‘Chinese Football Team’ vs. ‘Uzbekistan Football Team’ match, see: Shanghai First Intermediate People’s Court (2013) Zi No. 59, Civil Judgment.

  • 91↑

    Peking University Law Database Citation Code: CLI.C.3697257.

  • 92↑

    He Tao , '‘Reconstruction of Short Video Originality Standards ' (2020 ) 7 Publishing and Distribution Research : 44, 95 -6.

  • 93↑

    The detailed analysis of the hierarchical structure is as follows: (1) The bottom layer comprises continuous pictures with or without sound taken by a fixed camera, such as a surveillance picture taken by a traffic camera, or a picture recorded by a camera tied to an animal, without any personal choice, which is considered a mechanical recording (video recordings in the copyright-related law); (2) The middle layer is continuous pictures using a small number of lenses and simple lens switching, without the idea of shooting content and the creation of lens connection, such as classroom teaching videos and celebrity speech videos, scenery videos, etc. This type of taking continuous pictures does not yet reflect the creator’s intellectual creation and selection of pictures. It is a series of continuous pictures with the sole purpose of faithfully recording and restoring the shooting content, and it still belongs to the category of video recordings; (3) The upper layer comprises continuous pictures that use a multi-lens technique to realize the changes of scene on the shooting screen, the scheduling and selection of the screen, the continuity of the screen cutting, the change of rhythm, the matching of sound and screen, and other effects, which reflect the creator’s selection, editing, and processing of the continuous pictures, as well as the creator’s personality. Thus, it can be determined as including works created by a process analogous to cinematography in copyright law. See: Shanghai Pudong New Area People’s Court (2017), Hu 0115 Min Chu No. 88829, Civil Judgment.

  • 94↑

    One judicial document points out that evaluators should ‘[a]ttach great importance to the new needs of the development of technologies such as the Internet, artificial intelligence, and big data, and accurately define the types of works in accordance with copyright law. [They should p]roperly grasp the criterion for identification of works, and properly handle new types of cases such as sports events, online games, and data infringements, promoting the development of emerging business.’ See: Opinions of the Supreme People’s Court on Strengthening the Protection of Copyright and Neighboring rights (Fa Fa [2020] No. 42).

Contributor Notes

PhD (Panthéon Sorbonne), LLM (Renmin), LLB (Shandong), former Vice-President of the Trademark & Unfair Competition Committee of the IP Case Law Center (Beijing) of the Chinese Supreme People’s Court, Vice President of the Beijing IP Judicial Protection Association, Visiting Professor or Research Fellow (University of Milan, University Toulouse I, University Paris I, University Paris XI and Max Plank Institute for Procedural Law). Email: shujie@mail.tsinghua.edu.cn

LLM (Nankai University), LLB (Nankai University). Email: ff18@mails.tsinghua.edu.cn

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