Why sports broadcasters in China cannot currently rely on copyright law to protect against unauthorised livestreams (and possible solutions)

“Reach for Gold: IP and Sports” was the theme set by WIPO (World Intellectual Property Organisation) for this year’s World Intellectual Property Day on 26 April 2019. As part of the awareness raising initiatives in China, the first Forum for Sports and Intellectual Property was held in the campus of Beijing Sport University（北京体育大学）where participants discussed the current issues surrounding intellectual property protection concerning sports.

What particularly drew the author’s attention is how difficult it is for authorised broadcasters of live sports events (i.e. the rights holder) to assert their rights against entities engaged in the unauthorised livestreaming of the same event on the internet. Most of the broadcasters who have brought claims to Court have argued that the broadcast was a “work” capable of protection under the PRC Copyright Law. However, as to date the courts have not agreed.

This article examines the recent case law (which exemplifies the current limitations facing broadcasters) and analyses the main issues, namely:

1. whether live/real-time broadcasts qualify as “works” that can be protected by PRC Copyright Law; and

2. why the Courts are unwilling to take a more expansive interpretation of PRC Copyright Law so that it can apply to new forms of infringement emerging from technological developments (such as livestreaming).

By way of synopsis, unless the Copyright Law and relevant regulations are amended, or the Supreme People’s Court issues judicial interpretation or case guidance with respect to online livestreaming, it currently seems necessary for broadcasting rights holders to find alternative legal arguments beyond Copyright Law to protect against unauthorised livestreaming in China. The author invites rights holders and relevant stakeholders to work on alternative legal arguments based on property rights – the exclusive right to commercially benefit from livestreaming of sporting events, as one of the possible solutions.