Study on Copyright Protection of the Sports Event Programs

Sun Yurong Li Xinhang

Abstract： After the latest revision of the Copyright Law in 2020， the debate on the nature of live-streamed sports video is still continuing. On the basis of clarifying the basic concepts of sports events， sports event programs and live-streamed sports video， we can draw a conclusion that although the sports event itself is not a work in the sense of copyright law， it does not affect the copyright attribute of the live-streamed sports video. The identification of the attributes of the live-streamed sports video will affect the protection mode and path selection of sports events. From the perspective of the protection of sports event programs and the healthy development of sports and communication industry， we should halt the dispute on the attribute of live-streamed sports video， and reach a consensus on the protection mode and path selection of sports events programs as soon as possible， so as to promote the healthy and orderly development of the industry. After June 1， 2021， the copyrightable sports event programs can be identified as audiovisual works. For sports event programs that do not meet the requirement of the work， we can consider using the newly revised broadcasting organization's right of the Copyright Law （2020） to protect them. As for the protection mode of anti-unfair competition for sports event programs， it is an expedient measure before the Copyright Law is amended in 2020. The limit of anti-unfair competition extension protection should be clear， and the extended protection of Anti-unfair Competition Law cannot be applied to all intellectual property fields indefinitely.

Key words： sports event programs; copyright law; live-streamed sports video; originality

CLC： D 923? ? ? ? ? ? DC：A? ? ? ? ? ? ? ?Article ID： 2096-9783（2021）03-0128-09

1 Introduction

With the sustained and rapid development of the sports industry and its contribution to China's economy， the sports industry is gradually entering the golden period of development， but facing the threat of piracy at the same time. As technologies have advanced， the means and opportunities of third parties to obtain broadcasts and information from sports events have increased[1]. How to ensure the healthy and orderly development of sports industry and make it becomes a pillar industry is the key issue of sports reform and sustainable development in our country at present. As an important intangible asset of sports industry， the license for live broadcast of sports events is the key to determine the spreading scope as well as its impact. The copyright disputes caused by live broadcast of sports events have been widely concerned by all social sectors， and have become a hot spot in the theoretical and practical circles. Many conferences and forums on intellectual property rights have focused on the copyright protection of sports events as a key-note in recent years， there are still a number of academic papers on CNKI that focus on this issue. It can be seen that the copyright protection of sports event programs is an important and urgent practical problem， which is related to the healthy and orderly development of sports industry， the maintenance of the market competition order and sports' prosperity. As the technology advances and as the broadcasts more closely resemble the underlying games， novel copyright protection issues will inevitably arise[2].

This article is divided into five parts. The first part puts forward questions and then the second part clarifies the basic concepts of sports events， sports event programs and live-streamed sports video since it is the basis of discussion in the second part. The third part discusses the attribute of the live-streamed sports video. This part mainly analyzes the retrial decisions of "Beijing Sina Internet Information Service Co.， Ltd. v. Beijing Tianying Kyushu Network Technology Co.， Ltd." and "CCTV International Network Corporation， Ltd. （hereinafter referred to as CCTV International） v. Baofeng Group Stock Corporation， Ltd. （hereinafter referred to as Baofeng Group）"， which are highly concerned and cause widespread controversy in academia and industry. The conclusion is that the sports event itself is not a work in the sense of copyright law， which has no influence on the composition of the work attributes of the live-streamed sports video. The attribute determination of the live-streamed sports video will affect the protection mode and path selection of the sports events programs. The fourth part analyzes the protection mode of works and neighboring right， which are discussed by intellectual property law scholars in China， and puts forward the author's point of view. The last part is a brief conclusion.

2 Clarifications of Basic Concepts

The premise and primary work of analyzing the nature of sports event programs and discuss whether they are protected by copyright is to clarify the basic concepts of sports events， sports event programs and live-streamed sports videos， so as to avoid disputes between parties.

2.1? Sports Events

Sports events and sports event programs are different concepts and must be clearly distinguished. Sports events， namely competitive sports events， such as the World Cup， the Olympic Games， China Super League and NBA Basketball Match， are real-time competitive games between athletes or sports teams under the auspices of the referee in accordance with the uniform rules. It is objective and has no pre-designed action， process or result. Therefore， it is unique and non-reproducible. It does not belong to the original intellectual work in the field of literature， art or science and can be reproduced in some tangible form. It is not a work protected by copyright law.

2.2? Sports Event Programs

Sports event programs are the expression and presentation of the objective records after the production and processing of sports events through the setting of shooting position， the selection of images， the host's commentary， subtitles， replays or close-ups， interviews， director's participation etc. The transmission signal of sports event programs is generated by electronic means and loaded with the event program. The relationship between sports events， sports event programs and program transmission signals is shown in Figure 1[3]. It can be seen that sports events and sports event programs are different in composition， performance form and participants， thus the two should not be confused. Although sports events cannot constitute the object of copyright protection， this does not hinder the copyright attribution of sports event programs.

Figure 1? ?The relationship between sports events， sports event programs and program transmission signals

2.3? Live-streamed Sports Video

Live-streamed sports video refer to the video and audio recorded by the organizers of sports events， television stations and other institution or individuals， processed by the guide broadcast in real time. Live-streamed sports video and live sports broadcast programs are closely related but are different concepts. Live sports broadcast programs are richer and fuller in content than live-streamed sports videos. Live-streamed sports videos are one of the most basic and important elements of live sports broadcast programs. One scholar insists on that each relatively independent live-streamed sports image cannot be protected by copyright law in general. However， he does not deny the copyright of sports event programs， and believes that it meets the requirements of copyright law for works[4].

3 The Copyright Attribute of the Live-streamed Sports Video

The live-streamed sports video in this article refers to the continuous images of live sports events， namely， the continuous images carried by the public signal1 in the live sports event programs. There has been a continuous and extensive dispute in China about the attribute of the works of the live-streamed sports video. Courts at different levels have different judgments for intellectual property disputes involving sports event programs. Some courts identify sports event programs as video recordings sand adjust them through the right of information network dissemination. For example， in the copyright dispute case of CCTV International v. 21CN， Guangzhou Intermediate People's Court held that the defendant 21CN's real-time broadcasting of the German and Brazilian women's football competition program through its website without permission constituted an infringement on the plaintiff CCTV International's right of information network communication as a producer of audio and video recordings. Some courts regard sports event programs as video recordings， but they held that they cannot be adjusted by the right of communication through the information network. Instead， sports event programs should be protected by the Anti-unfair Competition Law. For example， in the case of CCTV International v. China United Television over copyright infringement and unfair competition， Shenzhen Futian District People's Court held that the defendant， China United Television， provided live webcasts of sports events without authorization， constituted unfair competition.

In the copyright dispute case of CCTV International v. Baofeng Group， the court of first instance and the court of second instance both found that the sports event programs involved in the case were video recordings2. On September 23， 2020， Beijing High People's Court concluded the retrial， holding that the sports event programs involved in the case constituted a work， and the online broadcast of 3950 short videos of the sports event programs involved in the case by Baofeng Group infringed the plaintiff's right of information network communication. On the same day， Beijing High People's court made a retrial judgment in the case of Beijing Sina Internet Information Service Co.， Ltd. （hereinafter referred to as Sina） v. Beijing Tianying Kyushu Network Technology Co.， Ltd.， which found that the Chinese Super League tournament program involved in the case constituted a work created by a process analogous to cinematography. Sina's retrial claim is tenable. The second instance judgment， made by Beijing Intellectual Property Court， was revoked， and the previous first instance judgment made by Beijing Chaoyang District People's Court was upheld. The focus of controversy in these two cases is whether the sports event programs involved in the case constitute works created by a process analogous to cinematography. The retrial judgment of Beijing High People's Court mainly demonstrates the constitutive requirements of cinematographic works and works created by a process analogous to cinematography from two aspects： originality and "filming on certain media". As for whether the sports event programs involved in the case constitute the cinematographic works and works created by a process analogous to cinematography （hereinafter referred to as "cinematographic works"）， the first question to discuss is the originality requirements， that is， in which aspects the originality of sports event program production is reflected， and then to judge the originality of sports event programs content involved in the case.

3.1 Constituents of Cinematographic Works

Beijing High People's court held that when judging whether an object belongs to a work protected by Copyright Law， it should consider whether the object conforms to the general definition of the work and whether the work conforms to the form of expression of a specific type of work. According to China's Copyright Law， to determine whether an object constitutes a cinematographic work， it is necessary not only to consider whether the relevant works belong to the intellectual creation in the field of literature， art and science， whether they are original and whether they can be copied， but also to consider whether the relevant works are shown as continuous images shot on a certain medium， projected with appropriate devices or broadcast in other ways3.

3.1.1 Originality Requirements of Cinematographic Works

In the second trial， Beijing Intellectual Property Court took the degree of originality as the standard to distinguish cinematographic works from video recordings， and the retrial court corrected this view. Beijing High People's court held that to accurately define the originality requirements of Copyright Law on cinematographic works， it is necessary to use the method of legal interpretation correctly. We should not only consider the literal meaning of legal provisions， but also interpret the meaning of relevant laws and regulations as a whole based on the system of legal norms and legislative evolution. To judge the originality of a work， we can only determine whether it is original or not， but not quantify it. From the perspective of system interpretation， the standard of classification between cinematographic works and video recordings should be the existence rather than the level of originality. The video recordings in the sense of the Copyright Law should be limited to the continuous images recorded mechanically， that is， the continuous images with or without accompanying sound formed by mechanically and faithfully recording the existing works or other continuous related images. The so-called "individualized choice" in the formation of video recordings does not make them original.

3.1.2 Understanding of "Shooting on a Certain Medium" in the Definition of Cinematographic Works

The understanding of "shooting on a certain medium" in the definition of cinematographic works should be interpreted in a holistic and systematic way in combination with Article 3 of the Copyright Law and Article 2 of the Enforcement Regulations of Copyright Law.

The first is about the understanding of the Copyright Law Article 3 on the categorization of works. On the one hand， Article 3 does not adopt a single standard for the classification of works， and the scope covered by different categories of works is not completely exclusive. On the other hand， it is not appropriate to have a narrow understanding of the connotation of various works.

The second is the understanding of "shooting on a certain medium" in the definition of cinematographic works in the Enforcement Regulations of Copyright Law Article 4. In the second trial judgment， Beijing Intellectual Property Court interpreted "shooting on a certain medium" as having "fixed" requirements for cinematographic works， and further defined "fixed" requirements as "should have been stably fixed on the tangible carrier". The above explanation was corrected by the retrial court as it held that this explanation excessively limited the connotation and extension of cinematographic works， and the basis was insufficient. Beijing High Court held that the normative significance of the requirement of "shooting on a certain medium" lies in the fact that the photographer can prove the existence of the work and copy and disseminate it accordingly. At the same time， the definition of works in the Enforcement Regulations of Copyright Law Article 2 only stipulates that "a work can be reproduced in a certain tangible form"， that is， a work can be "reproducible"， and does not take "fixed" or "stably fixed" as the constituent elements of a work. Therefore， the definition of "shooting on a certain medium" in the Enforcement Regulations of Copyright Law Article 4 does not mean "fixed" or "stable fixed". Even if "shooting on a certain medium" is regarded as a special requirement of cinematographic works， according to the explanation of "medium" in Modern Chinese Dictionary， "when one substance exists in another substance， the latter is the medium of the former， while substance is an objective existence independent of human consciousness". Considering the progress of information storage and communication technology， information storage is faster and storage media is more diversified. "Media" should be interpreted in a broad sense.

To sum up， the originality requirement of cinematographic works refers to originality. In the definition of cinematographic works， "shooting on a certain medium" cannot be simply equivalent to "fixed" or "stable fixed". Even if "shooting on a certain medium" is regarded as a special requirement of cinematographic works， it should be interpreted in a broad sense. According to the above understanding of the typological function of works， cinematographic works should be defined broadly， which should be judged by whether the relevant works are original， whether they are shown as continuous images， and whether they reach the most similar work type with cinematographic works.

3.2 Whether the Sports Event Programs Involved Constitute Works Created by a Process Analogous to Cinematography

3.2.1 Originality in Sports Event Programming

Generally speaking， for a sports event program shot by multiple seats， if the producer can reflect his unique idea in the setting of seats， shot switching， screen selection， editing and other aspects， and have intellectual creativity， it can be assumed that it meets the requirements of originality stipulated in the Copyright Law. In the case of meeting other constitutive requirements at the same time， it can be identified as a cinematographic work or a work created by a process analogous to cinematography. Beijing High People's court held that， first of all， the images of the sports event programs are composed of continuous pictures. Although a specific event program as a whole can only be limited to the same game， due to the richness of the game process， the unpredictability of various situations inside and outside the game， and the diversity of images shot from multiple planes and angles， there are still many possibilities for personalized selection of shooting objects and other materials. Second， although the production of the event program generally follows the requirements of the signal production manual while considering the needs of the audience and the technical level of the cameraman， the above factors are not enough to cause the production of the event program to lose the space of personalized selection.

3.2.2 Originality Judgment of Program Contents of Sports Events Involved in Cases

The sports event programs involved in the case is football match， which is highly ornamental and very confrontational. In order to meet the requirements of live broadcast and rebroadcast， various creative techniques and technical means are fully used in the production of such event programs， including filming preparation， on-the-spot shooting， processing and editing and other steps. These steps all include the creator's personalized selection and arrangement of the event program production. The content of the sports event programs includes pictures and sound， subtitles， slow motion replays， highlights， etc. The pictures at the game images are shot by a plurality of cameras pre-set at the match images from multiple positions. Screen performance includes full court， half court， goal area， multiple athlete close-ups， individual athlete close-up， slow motion replays and shooting highlights interspersed. In order to express the sense of the images of the game to the audience and present the antagonism and story of football competition， the camera skills， montage techniques and editing techniques are widely used in the production process of the game program involved in the above expression. The shooting angle of the machine position， the switching of the camera shot， the selection of the shooting images and object， the choices of the shooting picture， the editing， the arrangement and the interpretation outside the picture all reflect the individual choice and arrangement of the producers， thus they are original. These are not video recordings with or without accompanying sound formed by mechanical recordings. Instead， they meet the originality requirements of cinematographic works and works created by a process analogous to cinematography refers to originality4.

3.3 Summary Comments

Is the live-streamed sports video an object of copyright protection？ The key to answering this question， according to the author， is to see whether it is an original intellectual product of literature， art and science that can be reproduced in some tangible form. Obviously， there is no dispute that live-streamed sports video can be attributed to intellectual achievement in the fields of literature， art and science. Nowadays， sports live programs are broadcasted at the same time when they are stably recorded on the video tape or hard disk， which is in line with the condition of "expressing in a certain form". Therefore， judging whether the live-streamed sports video have originality is the key to their composition. After the revision of the Copyright Law in 2020， there is still no explicit provision on how to judge originality. After the latest revision in 2020， there is still no consensus on the property of the works of the live-streamed sports video. However， no matter before or after the revision， there is no dispute between the positive and negative sides on the point of "independent creation completion". Both sides agree that live-streamed sports video has a certain degree of originality， but dispute only on whether it meets the requirements of originality. Is it based on the level of "originality" or on whether there is originality to judge the work attribute of the sports event programs？ Before the 2020 revision of the Copyright Law， experts and scholars who advocate that the live-streamed sports video can not constitute works believe that since China's Copyright Law adheres to the tradition of the civil law system and stipulates the film works and video recordings respectively， cinematographic works must have high originality. Taking this as the premise for legal reasoning， the live-streamed sports video does not reach the originality level required by the cinematographic work， so it is not the object of copyright protection. The opposing view is that the live-streamed sports video should only meet the minimum originality requirements of ordinary works. The Copyright Law of China only requires that a cinematographic work be "a series of pictures with or without sound，" and does not prescribe the height of originality. The author agrees with this. In addition， the latest revision of China's Copyright Law （2020） has changed "cinematographic works and works created by similar methods of filmmaking" to "audiovisual work". Although China's Copyright Law inherits the mantle of the author's right system of the civil law， it also absorbs the pragmatism of the common law system. If we compare the video recordings with the other two kinds of neighboring right objects， layout design and radio program signal， we can find that the latter does not even have the minimum creativity in the sense of works. Does this mean that the video recordings can also have no creativity at all？ Can we conclude that "originality" is the standard to distinguish audiovisual works from video recordings？ From the perspective of comparative law， the British and American legal system has lower requirements for originality when setting the conditions for the protection of works. In the United States， the live-streamed sports video are protected as works. German Copyright Law distinguishes between "film works and works created by similar methods of film production" and "moving pictures". German legal circles generally believe that the live-streamed sports video cannot constitute cinematographic works， but can only be protected by the "moving pictures" stipulated in Article 95. However， Japan， which is also a civil law country， is more willing to regard it as a work when it comes to the identification of the nature of the live-streamed sports video. Although the Japanese Copyright Law also distinguishes the narrow sense of copyright from the neighboring right of copyright， it only stipulates that the recording products are regarded as the neighboring right object of the "record producer"， and does not include the video recordings into the neighboring right protection object. One scholar believes that for many years， the controversy about the nature of sports program works in the academic and practical circles in China is rooted in the standard setting of neighboring rights in China's Copyright Law. He also suggests that either through judicial channels to give sports events to the copyright protection of works （interpretation theory）， or on the basis of balance of interests （legislation theory）， appropriate expansion of the rights of video producers， or directly abandon the concept of video recordings[5]. The author agrees that "works" and "video recordings" are indeed difficult to distinguish and easily confused. The right of video producer brings more problems than it solves， and in modern copyright law， there is little legislation which stipulates that audiovisual works and video recordings should be treated differently.

To sum up， although the sports event itself is not a work in the sense of copyright law， it does not affect the identification of the work attribute of the live-streamed sports video. However， we do not propose that all the live-streamed sports video should be protected but only highly creative and unique ones[6].

4 Protection Mode and Path Selection of Sports Event Programs

The identification of the work attributes of the live-streamed sports video will affect the protection mode and path selection of sports events. When Chinese intellectual property law scholars discuss this issue， they mostly focus on copyright protection and neighboring rights protection.

4.1 Copyright Protection

China's domestic industry strongly calls for sports event programs to be included in the protection mode of works， and "fight for the definition of the nature of works with an almost paranoid attitude"[7]. From the obligee's perspective， this is indeed the best choice. The Guidelines for the Trial of Copyright Infringement Cases by Beijing High People's Court， issued on April 20， 2018， clearly stipulates in Chapter II "examination of the object of rights" that "sports event program videos that meet the constitutive requirements of cinematographic works and works created by a process analogous to cinematography shall be protected by the Copyright Law". The latest revision of the Copyright Law 2020 has expanded the adjustment scope of broadcasting right from "wireless broadcasting & broadcasting by wire or wireless" to "broadcasting by wire or wireless". This amendment will make the ubiquitous network non-interactive communication behavior fall into the scope of broadcasting right regulation， and directly attack the infringement chaos existing in the current network live broadcasting industry. According to the Copyright Law before the amendment， the obligee can only claim his rights and interests on the ground of "other rights" or unfair competition. The judicial organs in different places often hold different opinions on this， which can easily lead to the phenomenon of the same case and different judgment， and the result of litigation is highly uncertain. Through this amendment， it can be regulated according to law whether it is the sports event network real-time broadcast， network broadcast， or network timed broadcast. In fact， the reconstruction of broadcasting right in this amendment refers to the provisions of "the right of communication to the public" in the WIPO Copyright Treaty. It intends to include all kinds of communication behaviors into the scope of legal adjustment， eliminates the vacuum between the right of broadcasting and the right of information network communication， and effectively enhances the protection of copyright owners. On November 16， 2020， the Supreme People's Court issued the Opinions on Strengthening the Protection of Copyright and Copyright Related Rights， which pointed out that we should attach great importance to the new needs of the development of Internet， artificial intelligence， big data and other technologies， accurately define the types of works according to the Copyright Law， grasp the identification standards of works， properly hear new types of cases such as live sports events according to law， and promote the development of the society new business forms should be developed in a standardized way. The author thinks that we should seriously consider the protection mode and path selection of sports events from the basic purpose of copyright law legislation， the needs of industrial reality and the needs of promoting the healthy development of sports industry. Since China's current Copyright Law does not make clear requirements for the originality of the constitutive requirements of works， it is not necessary for the court to set higher standards for the originality of works， and what is "higher" cannot be quantified in China's Copyright Law. If there is a difference between the high and low of originality， then the judgment standard becomes a problem. It is difficult to determine a unified standard for the same type of works， or even between different types of works. In the future， in the trial of copyright disputes involving the identification of the nature of the live-streamed sports video， if the sports event programs involved in the case meet the constitutive requirements of audiovisual works， they can be protected by the Copyright Law as works， which does not have legal obstacles and risks. Whether the live-streamed sports video can constitute works depends on whether they are original or not， not on the level of originality. In addition to the above-mentioned retrial judgment of Beijing High Court on September 23， 2020， which found that Sina China Super League live broadcast program and CCTV World Cup Program constituted cinematographic works， the case of CCTV International v. Shanghai Juli over copyright infringement and unfair competition， Shanghai Pudong People's Court held that the football match program involved in the case， as a kind of "original expression" in the field of literature and art， is reproducible and can be protected as a work created by a process analogous to cinematography through the steps of material selection， slot setting， picture editing and arrangement， and integrating factors such as playback and special effects. Copyright protection would provide the Chinese sports industry with the best opportunities to quickly develop in a healthy environment and realize its full potential in the international market. Copyright protection is unquestionably the best approach from the perspective of sports program right holders[8]. And the time is certainly ripe to start thinking about moving beyond protecting the broadcast signal and to consider protecting live sports coverage itself under copyright protection[9].

4.2 Neighboring Rights Protection

If the sports program is defined as "video recordings"， according to China's Copyright Law， the producer of video recordings only has the right to license others to copy， distribute， rent， spread to the public through the information network and get remuneration. The protection scope of this neighboring right is obviously narrower than that of the copyright property right of the work， and it is unable to regulate the more harmful infringement acts such as network synchronous broadcasting. With the exception of the European Union directive， there are no other international conventions covering video recordings， which would prevent our sports programs from being protected by international law in other countries.

Another neighboring rights protection is to protect sports events through broadcasting organization's right. Once sports events are embedded in transmission signals， they become an integral part of the broadcast which enjoys neighboring rights protection[10]. Is the object of broadcasting organization's right the broadcasting and TV programs broadcast by broadcasting organization or the signals containing broadcasting and TV programs？ There is a great controversy in the academic circles. The scholars who advocate "signal theory" believe that only when the signal carrying the program is regarded as the object of the right of broadcasting organization， can the interests of broadcasting organization be protected， and the confusion of legal logic， the dislocation of right ownership mechanism and authorization mechanism， and the erosion of public domain be avoided[11]. However， opponents hold that the signal theory is not only inconsistent with the provisions of the current China's Copyright Law， but also its argumentation logic is questionable[12]. Article 41 of China's Copyright Law （Revision Draft for Review） on June 6， 2014 stipulates that "radio and television programs referred to in this Law refer to signals containing sound or images broadcast by radio and television stations for the first time." In effect， this equates radio and television programs with signals carrying programs， which means that the two concepts can be used interchangeably. According to Article 47 of the Copyright Law （2020）， the expression of the object of the right of broadcasting organization is still ambiguous. The expression of "broadcasting and television" in this article is the same as that in Article 45 of the Copyright Law （2010）. Whether "radio or television" refers to radio and television programs or signals carrying programs needs to be determined by judicial interpretation. Are radio and television programs and signals carrying programs two concepts with different meanings， or can they replace each other？ The root of the dispute lies in the lack of legislative or judicial interpretation of the two concepts. The latest revision of the Copyright Law （2020） expands the control scope of broadcasting organization's right of radio stations and television stations. It not only makes it clear that the form of "rebroadcast" includes both wireless and wired， but also brings the content of information network transmission right into the broadcasting organization's right. It shows that the scope of protection of the right of broadcasting organization extends to the Internet environment， expanding the subject of the right of broadcasting organization and the right of broadcasting in a technology neutral way， so that the scope of the subject can cover the network radio and television stations， and can regulate the behavior of real-time broadcasting on the network. Some scholars argue that after the implementation of the newly revised Copyright Law on June 1， 2021， in the disputes caused by the live broadcast of sports events without permission， there is no need to discuss the originality of the continuous images formed during the live broadcast， nor whether the continuous images use "signal" as the "medium". The court can apply the broadcasting right in the revised broadcasting organization's right to prevent others from broadcasting the live broadcast of the events of TV stations through various technical means， including the internet， so as to achieve the purpose of amending the provisions of the broadcasting organization's right in the Copyright Law. One of the greatest achievements of the third revision of the Copyright Law is to define the right of retransmission for the broadcasting organization in a technology-neutral way， so that the right of retransmission can cover the act of retransmission over the internet of radio or TV live transmission. The view that the series of related images of the live TV broadcast of sport event constitutes cinematographic work breaks that great achievement. The application of law should avoid understanding individual terms or isolated clauses and should cautiously follow the method of systematic interpretation[13]. This shows that even after the latest revision of the Copyright Law in 2020， the debate about the attribution of the work of live sports footage continues.

5 Conclusion

The author believes that， from the perspective of the protection of sports event programs and the healthy development of sports and communication industry， we should stop the controversy on the nature of the works of live-streamed sports video， and reach a consensus on the protection mode and path selection of sports event programs as soon as possible， so as to promote the healthy and orderly development of the industry. For sports event programs that meet the requirements of the composition of the works， we can use the narrow sense of copyright protection mode， that is to say， audiovisual works. For sports event programs which do not meet the constitutive requirements of works， we can consider protecting them with neighboring rights. As for the protection of sports event programs by anti-unfair competition protection model， it is an expedient measure before the revision of the Copyright Law in 2020. Anti-unfair Competition Law protection mode cannot solve the huge sports event live program trading limitations， which is far from the development of sports industry reality needs. In addition， the scope of the general provisions of the Anti-unfair Competition Law is too broad， and in the identification of the subjective color is too strong. Therefore， many scholars reflect on the phenomenon of "escaping to the Anti-unfair Competition Law". The author thinks that the limit of the extended protection of the Anti-unfair Competition Law should be clear， and the extended protection of the Anti-unfair Competition Law cannot be applied to all intellectual property fields indefinitely. In the application of law， especially in the field of intellectual property rights， many legal protections are overlapping， and the objects of protection are also overlapping. In the case of multiple legal protection paths parallel， we should choose the path that is most conducive to the development of the industry. Anti-unfair competition is not really a legal mechanism equipped to deal with online sports piracy.

References：

[1] Tyler McCormick Love. Throwing the Flag on Copyright Warnings： How Professional Sports Organizations Systematically Overstate Copyright Protection[J]. Journal of Intellectual Property Law， 2008（2）： 369-396.

[2] Marie? Hopkins. Live Sports Virtual Reality Broadcasts： Copyright and Other

Protections[J]. Duke Law & Technology Review， 2017-2018（16）： 141-160.

[3] Yan Bo. A Study on Copyright Issues of Live Broadcas[M]. Beijing： Law Press， 2016： 182.

[4] Cong Lixian. A Study on the Copyright Attribute and Content of the Sports Programs[EB/OL]. （2018-05-25）. https：//www.sohu.com/a/232968024_221481.

[5] Lu Haijun. On the Improvement of China's Neighboring Right System： from the Perspective of the Copyright Protection of "Sports Event Programs"[J]. Intellectual Property， 2020（11）： 50-58.

[6] Seemantani Sharma. A Copyright Incentive for Promoting Aesthetic Sports in India[J]. Entertainment and Sports Law Journal， 2019（1）： 1-12.

[7] Guo Chenhui， Industrial thinking on the protection for the right of sports events retransmission[EB/OL]. （2019-08-09）. http：//www.sohu.com/a/332743778_503725.

[8] Liu Wei， Liu Jiarui. Copyright Protection of Sports Programs in China[J]. Copyright Society of the U.S.A.， 2017（2）： 235-258.

[9] Yan Bo. Beyond the Signal： a View from China on the Copyright Protection of Live Sports Programming[J]. wipo magazine， 2019（2）： 8-14.

[10] Hezekiel Oira. A Kenyan Perspective on Copyright and Sports Broadcasting[EB/OL]. （2021-02-21）. https：//www.wipo.int/ip-outreach/en/ipday/2019/copyright_sports_broadcasting_kenya.html.

[11] Wang Qian. On the Subject Matter of Broadcasting Organizations' Right[J]. Chinese Journal of Law， 2017（1）： 100-122.

[12] Lu HaiJun. On the Subject Matter of Rights of Broadcast Organizations[J]. Journal of Soochow University （Law Edition）， 2019（4）： 24-29.

[13] Wang Qian. On Certain Questions about Copyright Protection of Images of Sport Event Live TV Broadcast： Comment on the Retrial Judgement of "IFENG Sports Games Broadcast" Case[J]. Intellectual Property， 2020（11）： 30-49.

體育賽事節(jié)目著作權(quán)保護探究

孫玉榮1，李心航2

（1.北京工業(yè)大學(xué) 法律系，北京 100124;2. 對外經(jīng)濟貿(mào)易大學(xué) 法學(xué)院，北京 100029）

摘? ? 要：2020年《著作權(quán)法》第三次修改后，我國知識產(chǎn)權(quán)法學(xué)界并未停止對體育賽事直播畫面作品屬性問題的爭論。體育賽事直播畫面的作品屬性認定問題會影響到體育賽事節(jié)目的保護模式和路徑選擇。雖然體育賽事本身不是著作權(quán)法意義上的作品，但這并不影響體育賽事直播畫面的作品屬性構(gòu)成。2021年6月1日以后，對于符合作品構(gòu)成要件的體育賽事節(jié)目可以認定為視聽作品。對于不符合作品構(gòu)成要件的體育賽事節(jié)目可以考慮用《著作權(quán)法》（2020）最新修訂的廣播組織權(quán)予以保護。至于反不正當(dāng)競爭法對體育賽事節(jié)目的保護，是我國《著作權(quán)法》第三次修改之前的權(quán)宜之計，反不正當(dāng)競爭擴展保護的限度應(yīng)該是明確的，不能無限度將反不正當(dāng)競爭法的擴展保護適用于所有的知識產(chǎn)權(quán)領(lǐng)域。

關(guān)鍵詞：體育賽事節(jié)目;著作權(quán)法;體育賽事直播畫面;獨創(chuàng)性