available to the public by means of TV broadcasts. FAPL licenses these rights on a national basis to individual broadcasters that have the right for those matches. FAPL claimed that the Defendants’ activities were harmful to its interests as they undermine the exclusivity of the rights granted by a licence in a given territory. The ECJ held that FAPL cannot claim copyright in the Premier League matches themselves, as they cannot be categorised as works.


C. Analysis and scope of judgments on definition of works The difference in approach is clear, explicit and unambiguous. The Chinese jurisprudence is far reaching and wider in its scope and ambit.


a. Difference - Definition of originality The Sina judgment held that “the originality is reflected in the fact that through different selection and production, different pictures will be created”. The Court’s statement is that: ‘Originality is the key for the court to decide whether pictures of the CSL games constitute work”. The court in Luxembourg held on the other hand that “to be so classified [sic] the subject matter concerned would have to be original in the sense that it is the author’s own intellectual creation…However sporting events cannot be regarded as intellectual creations classifiable as works… That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright”. The Luxembourg judgment further states that “FAPL cannot claim copyright in the Premier League matches themselves, as they cannot be classified as works”.


b. Assimilation of photographic images to works The Sina judgment held “through selection and arrangement of the recording cameras for sporting events, new pictures are created…Pictures generated through recording of sporting events, meet the requirement of originality under Chinese copyright law, and shall be regarded as work”


** Nawaz Dookhee (LLB, LLM @ LSE) is a qualified barrister from the Honourable Society of the Inner Temple, UK and has been in private practice for many years. He has extensive experience in broadcasting and media related matters. He is now heading the Legal Dept. at the ABU. (nawaz@abu.org.my). The views expressed are those of the author and do not engage the ABU in any manner. • i


Study on Sports organisers’ rights in the


Under the Berne Treaty, “photographic works to which are assimilated works expressed by a process analogous to photography” is to be considered work. It is submitted that the Sina judgment concluded the technical process through which live sports are assimilated by a process of photography is therefore ‘work’.


However, one would be excused for thinking that the ECJ judgment is fundamentally different as it held that “Sporting events, as such, have a unique and, to that extent, original character which can transform them into subject- matter that is worthy of protection comparable to the protection of works, and that protection can be granted where appropriate…”


D. Conclusion The Beijing judgment, it is averred, is enlarging the category of copyright works. This plausibility may be due to the underlying absence of China’s accession to the Rome Convention, thereby assimilating sports events as a broadcast (related rights). However, related rights do not require originality, an element which is the rationale in Sina. Critics have argued that in fact the Beijing judgment is protecting the programme event and not the live sports per se. Considering the number of times the Beijing court used the word “picture” (supra.) to aggregate it to protection of “works”; there is credibility in this argument.


The Chinese judgment is avant-gardist, liberal and ground-breaking compared to the conservatism of the ECJ. The reasoning of the Beijing Court is at least bold and states in no equivocal terms what the Luxembourg court struggles to hold – live sports can be protected under copyright laws. Moreover, with the progression of technology in the broadcasting sector, from 3D through the Ultra-High-Definition Television (UHDTV-4K) to Super High-Vision (SHV-8K) and multimedia inputs, the reasoning of the Beijing Court is more in line with the reasoning of some commentators who advocate for


EU, Final Report, Feb 2014 (Asser Institute); see also T. Magoni: The Protection of Sports Event in the EU • ii


Sporting events as dramatic works in


the UK copyright system, Viola Elam, LLB, University of Florence School of Law, Florence, Italy • iii


Civil (IP) First Instance Record No. 40334 • iv


(2014) Beijing Chaoyang District People’s U.S. case of Baltimore Orioles, Inc vs. Major


copyright protection in the intelligent use and original positioning of recording cameras to provide creative images. It may also be a positive response to online digital piracy of sports in Chinav


which is, according to


figures published by Go-Golf, the top country with 91% online piracy.


Nonetheless, the judgment in the Beijing Court raised a number of fundamental issues: a) CSL covers Chinese league games and whether the Chinese Court will be as accommodating to foreign games and afford similar protection in applying the national treatment principle is yet to be seen.


b) Is the court protecting the sports programme or the sports event?


c) How far is the judgment useful for games not recorded on intelligent positioning of cameras?


d) How far can the individual components of the sporting event be subject to copyright? Can an individual player protest if other competitors begin to imitate his actions?vi


e) Where does the liability stop if sporting events become copyrightable?


f ) What are the economic consequences of giving protection to live sports coverage for the APAC region compared to Europe?


On the other hand, is the European Court in the Murphy case advocating a sui generis category of protection for live sports similar to the sui generis EU Database right? By restricting FAPL’s claim to anthems and logos, has the ECJ not imposed a disproportionate burden of proof on potential claimant? How far is the single digital market following the Murphy case and will this be the solution to solving the problem of live sports protection in Europe? Or the WIPO Broadcasters’ Treaty is the solution for such situations?


The Beijing Intermediate IP Court has in the meantime put the cat among the pigeons!


League Baseball Players Association, 805 F.2d 663 (7th Cir 1986), the court ruled that a baseball game is copyrightable. Reversed in the Supreme Court, 480 U.S. 941 (1987) • v


See Paul C Weller, Levelling the Playing


New Challenges of Chinese Copyright Law


in the Digital Age: A Comparative Copyright Analysis by Seagull Haiyan Song • vi


Field: How the Law can make Sports Better for Fans


ABU News 31


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44