Author | Intellectual Property Division of Beijing High People's Court
Writer | Qi Lei, Judge of the Intellectual Property Division of Beijing Higher People's Court 2. Characteristics of Variety Show Copyright Cases
According to research, the increase in the number of variety show copyright cases in Beijing courts is closely related to the development of information network technology. Overall, it has the following characteristics:
First, the number of variety show copyright cases is on the rise. Although variety show copyright cases account for a small proportion of all copyright cases, their number has increased significantly after 2012. Taking the Haidian Court as an example, it accepted only 3 variety show copyright cases in 2009. In 2012, it accepted 159 variety show copyright cases. The reason for the increase in cases is that, on the one hand, domestic TV stations frequently launch multiple variety shows to increase ratings, the rapid development of computer networks, and fierce competition among video websites. In order to reduce operating costs and attract Internet users, some video websites have begun to use variety shows frequently to enrich website content, which has led to a significant increase in such cases. On the other hand, the awareness of rights holders such as TV stations and video websites has gradually increased. As the investment and production costs of variety shows rise, rights holders are paying more and more attention to combating infringement in order to protect their markets to the greatest extent.
Second, the types of variety shows involved are relatively concentrated. According to the relevant opinions issued by the former State Administration of Radio and Television, variety shows are generally divided into types such as marriage and dating, talent competitions, emotional stories, game competitions, variety entertainment, interview and talk shows, reality shows, etc. Among them, variety entertainment, dating and dating programs, and talent competition programs account for the vast majority of variety show copyright cases, while interview programs are less common.
Third, the Internet has become the hardest hit area for variety show infringement. The development of the Internet has made the competition between traditional media and online media increasingly fierce. Video websites actively collect video content including TV variety shows to attract a large number of users to increase website profits. The conflict of interests between video websites and video content rights holders has intensified. In the absence of unified rules for the distribution of interests between the two, it is inevitable that a large number of disputes involving the Internet will flood into the courts.
Fourth, mediation by the administrative agency in charge of variety shows has curbed the occurrence of some lawsuits. The prosperity and development of variety shows in our country is generally influenced by variety shows from Europe, the United States, Japan, Korea, Hong Kong and Taiwan. Major TV stations have imitated successful foreign variety shows, resulting in serious program duplication. In the first half of 2010, Hunan Satellite TV reported to the former State Administration of Radio, Film and Television that Jiangsu Satellite TV's "If You Are the One" program was suspected of plagiarizing its dating reality show "Let's Date." [1] The above disputes did not enter litigation after coordination with the administrative authorities. 3. Difficulties in the trial of variety show copyright cases
At present, the difficulties in the trial of variety show copyright cases mainly include the following issues:
(1) Different views on the nature of variety shows 1
According to research, judicial practice has three main views on the nature of variety shows:
The first is TV-like works. This is the majority view in practice. This view holds that variety shows have a certain degree of originality from the arrangement and planning of the program, the filming process to the completion of editing and production. They are intellectual achievements that can be copied in tangible form and are quasi-electric works stipulated in the Copyright Law.
The third is video products. This is mainly another view on the "Spring Festival Gala" and other party-type cases. This view holds that “generally speaking, movies and similar works created with filmmaking methods are a combination of comprehensive intelligence in script writing, actor performance, director directing, photography, dubbing, scoring, editing, etc., and a large number of pre-creation and post-processing efforts. As a result, it has high requirements for originality. It is undeniable that the expression form of "Spring Festival Gala" is similar to that of film works, both consisting of a series of pictures with or without accompanying sound, and during the filming process, they are also similar. The setting of the camera, the selection of the lenses, and the participation of the director included a lot of investment and hard work, which reflected a certain degree of originality. However, despite this, as a TV program whose main purpose is to show wonderful live performances, it has great success. The creative method is still quite different from that of film works.
Especially in the selection of filming content, control of stage performances, and arrangement of related programs, the filmmakers are not in a dominant position, and the choices and expressions that the program directors, cameramen, and other personnel can make according to their will are also very limited. . This determines that the originality of the 'Spring Festival Gala' has not reached the level required for a film work and is not enough to constitute a film work. It is a recording of continuous related images and images with or without accompanying sound other than film works, and should be regarded as a cohesive recording. Video recordings created with a certain amount of intellectual power shall be protected. "[4] Some courts have recognized evening variety shows as video products. In addition to the above-mentioned originality not reaching the level required for film works, some courts also believe that "the characteristics of film works are also reflected in the use of coherent pictures to express thoughts and feelings. That is, coherent pictures are used to tell the story, and there is an inherent connection between the pictures. However, the program involved (Lantern Festival Gala) is composed of separate programs. There is no coherent storyline between the programs. The pictures between the various programs There is no internal connection and it does not conform to the characteristics of the film. "[5]
Due to different understandings of the nature of variety shows, some courts have avoided the issue of characterization of variety shows during trials and generally protected them based on the authorized content obtained by the plaintiff.
(2) The legal protection of the variety show model needs to be further studied
Plagiarism in variety shows is closely related to what the program model is, whether it is an idea or an expression, and if it is an expression. The former is not within the scope of copyright protection. If it is the latter, it can be protected by copyright law. Tong said that TV program models including variety shows belong to the category of ideas, and copyright law protects expressions but not ideas. Therefore. The program model cannot be protected by copyright law. The Haidian Court expressed the above view in the case of the emotional talk show "Mask". It believed that "the conception and creativity of the "Mask" program can only be achieved through language, symbols, and lines. Only by expressing this idea and creativity in objective forms such as color, sound, shape, etc. can it be perceived by people and copied in a tangible form. At the same time, only when this expression is original and complies with legal provisions will it constitute a work protected by copyright law. Therefore, the concept and creativity of the "Mask" program itself do not fall within the scope of work protection stipulated in my country's Copyright Law. [6] Foreign countries also have different views on whether the program model is protected by copyright law. In most cases, the TV program model in the United States It cannot be protected by copyright law, but the carrier recording the content of the TV program model can obtain copyright protection. On July 26, 2003, the German Federal Supreme Court ruled that the TV program model was not a work protected by German copyright law and the French court ruled that it was unfair competition. Law to protect TV program models. The Dutch Supreme Court’s decision recognized that program models can enjoy the protection of copyright law [7]
An issue closely related to program plagiarism is the introduction of “copyright” in variety shows. In recent years, various TV stations have spent a lot of money to introduce "copyright" of variety shows from abroad. So whether what the TV station introduced is "copyright"? If it is copyright, then it must be protected by copyright law. However, the program model usually belongs to the ideological category and does not. If it is not protected by copyright law, then what exactly is the contract between the TV station and the foreign program producer? These issues directly affect the healthy development of our country’s variety show production industry, and its understanding of conventions. It needs to be re-examined legally.
If the variety show model cannot be protected by copyright law, is there no plagiarism problem in variety shows? And in reality, although imitation of variety shows is prevalent, it is true? There are no two identical variety shows. If a variety show constitutes a work, there is a theoretical possibility of plagiarism. However, there are more appropriate laws outside the Copyright Law for how to compare and identify plagiarism. Protection methods, the above issues need further in-depth study
(3) The discretionary amount of compensation in variety show copyright infringement cases varies
According to the investigation, the Beijing Municipal Court has found that variety show copyright infringement cases have different levels. The amount of compensation awarded in the case is basically determined at the discretion of the court, and the factors considered are basically the same as those considered in cases of film and television works, such as the popularity and influence of the program, the manner of the defendant's infringement, the duration of the infringement, the degree of fault, etc.
The main problems existing in the current application of discretionary compensation are: 1. The right holder is too lazy to provide evidence for the amount of damages claimed. Part of the reason is that the current courts do not accept the evidence provided by the rights holder. For example, in the commercial licensing contract for a certain film and television work, most courts believe that the contract provided by the rights holder himself may have an inflated price and is difficult to reflect the reasonable market value. , so it is not accepted. The court's low acceptance rate of evidence affects the enthusiasm of rights holders to provide evidence. 2. Judicial judgments generally list a variety of factors to determine the amount of compensation without conducting in-depth analysis. Moreover, since there is no unified reference standard for compensation, the discretionary scale of each court varies greatly. How judges consider the specific circumstances of compensation when exercising their discretion in different cases is not only closely related to the objective circumstances of the case, but is also greatly affected by subjective factors such as the judge’s professional quality and value orientation. Therefore, even similar cases may be resolved in different courts. There are also large differences in the amount of discretionary compensation. 3. There is a huge difference between the amount of mediation and the amount of compensation awarded. According to statistics from some courts, more than 90% of variety show cases have been settled through mediation. For local variety shows, the amount of mediation acceptable to the rights holders is basically around 1,000 yuan per issue. In a few cases, defendants are willing to pay compensation of more than 3,000 yuan per issue. The amount of compensation awarded ranges from 900 yuan per period to 8,000 yuan per period. The difference between the judgment and mediation amounts is large, causing the parties to be dissatisfied with the amount of compensation awarded by the court and reducing the authority of the court's judgment.
Notes:
[1] Hunan Satellite TV said: In December 2009, it broadcast "Let's Date", which was billed as "China's first single hipster dating reality show" , and "If You Are the One", which was launched by Jiangsu Satellite TV in January 2010, is very similar to "Let's Date" in terms of program concept and program format, and there are obvious suspicions of plagiarism in terms of stage design, character settings, link settings, etc. Jiangsu Satellite TV said that the idea of ??"If You Are the One" was based on more than a dozen foreign reality shows and dating programs, but the main idea came from Jiangsu Satellite TV's previous "Human World" program and the matching competition of the talent show "Absolutely Sing", "We "Date" is an entertainment program, while "If You Are the One" is a reality show. The rules and presentation methods of the two are different, and the accusation of plagiarism is untrue. The former State Administration of Radio, Film and Television responded to the complaint and resolved it through negotiation between the two parties.
[2] See Beijing Xicheng District People’s Court (2012) Ximinchuzi Civil Judgment No. 16143.
[3] See Beijing Haidian District People’s Court (2012) Hai Minchu Zi No. 20573 Civil Judgment.
[4] See Beijing Haidian District People’s Court (2009) Haiminchuzi Civil Judgment No. 9477.
[5] See Beijing Chaoyang District People’s Court (2013) Chaominchuzi Civil Judgment No. 23448.
[6] See Beijing Haidian District People’s Court (2005) Haiminchuzi Civil Judgment No. 15050.
[7] Reference Huang Shixi: "Comparative Study on Legal Protection of Television Program Models", "Politics and Law" Issue 1, 2011, pp. 114-120.
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