Pursuant to the Answers of the Beijing Higher People’s Court to Several Questions Concerning the Trial of Dispute Cases Involving Copyright in Variety Programmes, the term “variety programme” mainly refers to a comprehensive type of audio-visual programme, the main purpose of which is entertainment, and can be divided into on-site variety shows and variety programme videos.
On-site variety shows are the subject of filming, whereas a variety programme video is the product derived from the filming of an on-site variety show. Additionally, the processes of producing and filming a variety programme include such specific elements as a script, spoken lines, musical works, art works, logo designs, programme format, game rules, etc. This column analyzes and describes the copyright nature of on-site variety shows, variety programme videos and the elements of variety programmes, and, on this basis, analyzes approaches to protecting the intellectual property (IP) in variety programmes as a whole.
On-site variety shows. Based on their specific content, on-site variety shows can be divided into two types: (1) the “performances” specified in the Copyright Law, provided, however, that what the performer performs is a copyrighted work as specified in the Copyright Law – accordingly, the work’s copyright holder and performer, and the organization performing the on-site variety show, enjoy and bear the relevant rights and obligations set out in the Copyright Law; and (2) other action activities that do not constitute a “performance” as specified in the Copyright Law – if an on-site variety show is not the performance of works (e.g., a competitive sport) such an on-site variety show is not accorded the protection of the Copyright Law.
Variety programme videos. Referring to the Research of the Beijing Higher People’s Court on Issues Relevant to the Trial of Cases Involving Copyright in Variety Programmes, the term “variety programme video” means information that, after the completion of filming of an on-site variety show, is fixed onto a medium. Pursuant to the Copyright Law and the above-mentioned answers, depending on the presence or absence of originality, a variety programme video may be recognized as a work or video recording created using a method similar to that for shooting a film, and the determination of whether a variety programme video constitutes a work is not affected by a determination of whether the on-site variety show constitutes a work.
Elements of a variety programme. The processes of producing and filming a variety programme involve the creation and use of a large quantity of specific elements such as a script, spoken lines, musical works, art works, logo designs, programme format, game rules, etc. Similar to film works and similar works, the script, music and other such works in a variety programme that can be used independently are subject to independent copyrights.
However, the copying of variety programmes at present is closely related to such things as the format of the variety programme, the flow and rules of the programme, etc. Article 10 of the answers specifies that the format of a programme is the synthesis of numerous elements, such as the creative ideas, flow, rules, technical regulations, style of the host, etc., of the variety programme. As the creative ideas are the heart of the format of a programme, even though the creative ideas of a programme are fixed in a variety of reproducible ways, most of the copying of programmes involves only the programme’s creative ideas. Accordingly, in practice, the format of a programme as a whole is generally found to fall within the realm of ideas, and is not subject to the protection of the Copyright Law.
However, in judicial trial practice, the criteria for distinguishing ideas and expression require confirmation based on the specific circumstances of the case. Taking the criteria for the setting of game rules in a variety programme (referencing copyright infringement cases involving the method of play and rules of online games), judicial precedents in which the game play method and game rules have been found to constitute works, and in which they have been found not to constitute works, can both be found, depending on the different circumstances of different cases.
When the format of a variety show is taken as a whole, it usually only reflects the programme’s creative ideas, and is thus not accorded the legal protection of the Copyright Law. However, if the specific elements that constitute the format of a variety programme are expressed in an original way, they may be accorded the legal protection of the Copyright Law.
Approaches for protecting the IP rights in a variety programme as a whole. Until the filming and production of a variety programme are completed, there exists a certain amount of uncertainty as to whether the on-site variety show, the variety programme video, and the specific elements of the variety programme constitute copyrighted works, and whether they are eligible for protection as works under the Copyright Law. Furthermore, protecting a variety programme by way of the Copyright Law and the Anti-Unfair Competition Law is somewhat belated as the rights holder can proceed to safeguard his rights only after infringement has occurred, making it difficult to prevent infringement and acts of unfair competition by a third party, such as copying and imitation of, and free riding on, the variety programme.
Accordingly, to prevent infringement of a variety programme by a third party in advance, the authors recommend that the producer considers the following approaches to carry out comprehensive advance protection of its programme at the very beginning of brainstorming for, and development of, the programme:
- Strengthen the original expression of the variety programme so as to facilitate the on-site variety show, variety programme video and the elements of the variety show being recognized as works, and being accorded copyright protection;
- At the programme brainstorming stage, begin to apply comprehensive IP protection measures including copyright, trademark, patent and domain name registration, in order to protect the specific elements of the programme and realize prior IP protection, and avoid belated copyright protection; and
- Take confidentiality measures in respect of programme information and documentation to prevent the leaking of information at the development stage.
The above are just principles for protection approaches that the authors put forward for the overall protection of IP rights in variety programmes, and are provided solely for reference by relevant entities. Specific IP protection measures will require specific discussions based on the circumstances of each specific case.
Liu Yingzi and Yu Rong are partners at Hylands Law Firm
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