On The Legal Protection Of Network Broadcasting Of Live Sports Programs

With the continuous development of sports event,disputes are consequently raising,among which,the disputes about sports event and its live programs are the most frequent.Determination of the nature of sports event is the basis to determine what are live sports programs and its nature.In China,sports event could be regulated as a new object of intellectual property to be protected,because it is intangible,intellectual and economical,which is close to the characteristics of the object of intellectual property.Live sports programs is the broadcasting of sports event,where the producer has “minimum of the originality” in producing,selecting and arranging.It should be deemed as audiovisual work,an object of copy rights protection.Due to the incompleteness of powers and functions of broadcasting rights,information network transmission rights and relay rights,live sports programs,as audiovisual work,have been pirated rampantly.To solve the situation mentioned above,China should make broadcasting rights cover “network communication”,and merge broadcasting rights and network information transmission rights into “rights to public communication”,so that the network broadcasting of the live sports programs can be protected well.The first part of the dissertation discusses the possibility to recognize sports event as intellectual property.With regard to the nature of sports event,all traditional theories,such as“race course access rights”,“covenant rights” and“business rights”have logical and explanation flaw,which brings forward the “intellectual property rights” theory.Reasoning trichotomy supports the logic of this theory.Furthermore,the intangibility,intellectuality and economy of sports event fits the nature of intellectual property object coincide.There are two ways to protect sports event through intellectual property.One is to grant some sports event the rights to be protected as intellectual property;another is regulating a new intellectual property rights.The latter one is preferred.The second part of the dissertation discusses the nature of live sports programs.According to the degree of originality,the main controversies of the nature are between works or products.However,the degree of originality is more like a problem about aesthetic value,which cannot be enforced well due to subjectivity.The establishment of neighboring rights is based on the protection of works spreading,not of the materials which are not be deemed as work.It is wrong that making neighboring rights equal low originality.Therefore,live sportsprograms are not works or products under current Copy Rights Law,it should belong to audiovisual works with “minimum of the originality”.The third part of the dissertation discusses the originality of the live sports programs as audiovisual works.The judgment of the originality of literary works,art works and cinematographic works provides references to the judgment of audiovisual works,establishing the standard “the existence of the originality decides the existence of copyrights or not;the degree of the originality decides the powers and functions of copyrights.”When deciding whether has originality or not,the principles,such as balancing interest,minimum of the originality,aesthetic nondiscrimination and socio-economic value,should be applied.In addition,“incremental analysis” can be used.Sports event has “minimum of the originality”,because it presents the creative of the producer in screen shot and lens cohesions.The fourth part of the dissertation discusses legal protection of network broadcasting of live sports programs.Through Anti-Unfair Competition Law,extending broadcasting rights and Sports Law cannot protect network broadcasting of live sports programs efficiently.The only way is Copyrights Law.Under Copyrights Law,the rights of live sports programs shall be in accordance with stipulation,otherwise,shall be presumed to producer;the author only has the right to payment.As for the network broadcasting of live sports programs,China should enlarge broadcasting rights to cover “network communication”,and merge broadcasting rights and network information transmission rights into “rights to public communication”,to regulate all networking broadcasting behaviors.