Li Yang: Is fixation a constituent element of an audiovisual work?

　　Audiovisual works are continuous dynamic pictures that are expressed by the public through visual or audiovisual direct perception, including film works and electrical works. Whether it is a constituent element of an audiovisual work has become the focus of dispute between the parties and one of the hot topics in the intellectual property circles in the case of Beijing Sina Internet Information Service Co., Ltd. v. Beijing Tianying Jiuzhou Network Technology Co., Ltd. for infringement of copyright and unfair competition in sports events (hereinafter referred to as Sina v. Tianying Jiuzhou). In this case, the court of first instance held that the sports program involved constituted a work created in a manner similar to that of a film production point. However, the court of second instance held that the film work should at least meet the conditions of fixity and originality, and the live broadcast of the events involved in the case did not meet the fixed requirements of the film work, and at the same time did not reach the height of originality, so it did not constitute a film work.

　　The answer to the question as to whether it was a constituent element of an audiovisual work was not limited to individual cases. Whether the live broadcast of a large number of cultural and sports activities belongs to the work, and whether the fixed requirements are satisfied is one of the decisive factors. The author first summarizes and summarizes the relevant controversies, and then briefly talks about his own views.

　　"Fixed element theory" and "non-fixed element theory"

　　Whether fixation is a constituent element of audiovisual works, there are two diametrically opposed views in China's theoretical and practical circles on fixed elements and non-fixed elements. The term "fixed elements" holds that whether fixation is a constitutive element of all types of works or certain specific types of works, and article 2.2 of the Berne Convention for the Protection of Literary and Artistic Works does not make a mandatory provision, but leaves it to the discretion of the legislatures of the member States. Although China's Copyright Law in principle chooses to fix the constituent elements of the work, it retains an exception, that is, it requires that the audiovisual work should be "a work that is filmed on a certain medium, composed of a series of pictures with or without accompaniment, and screened or otherwise disseminated by means of appropriate devices". "Filmed on a certain medium", that is, fixed. The court of second instance in Sina v. Tianying Kyushu held this view.

　　From the perspective of legislative examples, the definition of a cinematographic work in article 2, paragraph 3 of the Copyright Act of Japan stipulates as follows: "A film work includes a work that is expressed in a way that produces visual or audiovisual effects similar to a film effect and is fixed on an object", which clearly adopts the fixed element.

　　According to the theory of non-fixed requirements, although Article 4, Item 11 of the Implementing Regulations of China's Copyright Law stipulates that audiovisual works should be "filmed on a certain medium", this provision should be subject to the general requirements of works provided for in Article 2 of the Implementing Regulations of the Copyright Law. Article 2 of the Implementing Regulations of the Copyright Law only requires that the work "can be reproduced in a certain tangible form", that is, it only requires that the work has the possibility of fixation, and does not require the work to be fixed in fact. Fixability emphasizes whether the work can be transmitted, and where the work can be transmitted, regardless of the type of work, there should be no additional elements of protection in addition to the fixability. The constituent and protective elements of audiovisual works should also be understood in this way.

　　"Fixed to say" vs. "Has been or is being fixed"

　　Whether fixation is a constituent element of audiovisual works, in addition to the polar differences between fixed and non-fixed elements in the theory and practice of intellectual property rights, there are also differences between fixed and fixed and have been or are being fixed.

　　It has been fixed that "filmed on a certain medium", as far as the semantic interpretation is concerned, only means that the audiovisual work has been fixed on the material carrier. A continuous dynamic picture that has not yet been fixed or is being fixed on a material carrier cannot be called an audiovisual work. The fixed requirements for audiovisual works held by the court of second instance in Sina v. Tianying Jiuzhou case clearly adopted the fixed contention.

　　It has been or is being fixed that although the implementing regulations of the Copyright Law require audiovisual works to be "filmed on a certain medium", they are not explicitly limited to "having been filmed on a certain medium", and in terms of literal interpretation, it is needless to say that "has been fixed" meets the fixed elements of audiovisual works, although it is not fixed in advance, but it is fixed at the same time as use, or fixed while using, and also meets the fixed elements of audiovisual works.

　　Whether an audiovisual work must have been fixed or whether it must be fixed while using it and meet its constituent requirements is also debated in Japan. In the 2003 case of a company v. Yotsuya Tax Sheriff of the Supreme Court of Japan, the Tokyo District Court of first instance held that the video of the live television broadcast of sports competitions, which was performed by film techniques, was different from the aimless and faithful recording of objective facts, and used photography techniques, montage techniques, editing techniques, and edited the film to better represent the image and meet the originality requirements, and the live video was also videotaped at the same time as it was broadcast live, meeting the fixed requirements. Therefore, it is a film work as stipulated in Article 2, Paragraph 3 of the Copyright Act of Japan. However, the Supreme Court of Japan overturned the first-instance judgment. The main reason for this is that it is impossible to judge when the film work was completed using the fixed point of view of the first trial while live. Nevertheless, the Supreme Court of Japan still held that in order to better represent the images of sports competition, a company used photographic techniques, montage techniques, editing techniques, and edited the film, the image constituted a work referred to in Article 2, Paragraph 1, Item 1 of the Copyright Law, and a company's claim that the image did not belong to the copyright object provided for in Article 161 of the Income Tax Law was not accepted, regardless of whether it was necessary to determine whether the image belonged to a film work.

　　The author's opinion

　　The author prefers the live broadcast held by the Tokyo District Court in Japan, for the following main reasons:

　　First, as advocated by the adherents of the above fixed requirements, from the perspective of legislative language, there is an objection to the interpretation of "filmed on a certain medium" stipulated in Article 4, Item 11 of the Implementing Regulations of China's Copyright Law, that is, audiovisual works that are not "filmed on a certain medium", although they may be composed of a series of pictures with or without accompaniment, and can be screened or otherwise disseminated by means of appropriate devices, and are not audiovisual works. Putting aside the basic semantic restrictions of the legislative language, and using pure value orientation as a reason, the continuous dynamic picture that is not "filmed on a certain medium" is recognized as an audiovisual work, which will confuse the boundary between the performance of the audiovisual work and the theatrical work or the screening of fine art works, and even the objective activities of non-works or works performed themselves.

　　In various discussions on the first-instance and second-instance judgments of Sina v. Tianying Jiuzhou, the view that the basic semantics of article 4, paragraph 11 of the Implementing Regulations of the Copyright Law intentionally or unintentionally circumvented or broke through the basic semantic restrictions on the legislative language of Article 4, paragraph 11, of the Implementing Regulations of the Copyright Law, and that the view that the live broadcast of sports events was not filmed on a certain medium, that is, it was not fixed, and also constituted an audiovisual work, was not convincing enough.

　　Second, the famous jurist Yang Renshou believes that when there is a possibility of plurality in the result of the interpretation of the meaning, it is necessary to rely on sociological interpretation, and within the scope of the possibility of the interpretation of the meaning, it is necessary to focus on the prediction of social effects and the consideration of its purpose, and further clarify its meaning. Unlike other methods of legal interpretation, sociological interpretation focuses on the social environment in which legal texts operate and their changes, so that legal texts can directly interact with current social life. Although Item 11 of Article 4 of the Implementing Regulations of China's Copyright Law stipulates that fixation is the constituent element of audiovisual works, it does not limit fixation to "fixed", and as far as the interpretation of the text is concerned, fixation includes "fixed" and "being fixed", which interpretation to take, it is necessary to comprehensively consider the development and changes of science and technology, economy and society to make trade-offs.

　　Third, compared with 1888, when the French film inventor Louis Prince used his own single-lens camera and Eastman Kodak's paper film to shoot the "Roundhay Garden Scene" and a street scene of the Leeds Bridge in succession, and in 1893, when Edison of the United States invented the cinema mirror and created the "prison car" camera, the technical means of filmmaking and communication in the twenty-first century have been highly developed and completely incomparable. Audiovisual works have been completely completed in the computer without the need for the filming process, and can be broadcast live and fixed without any obstacles. In this way, the fixed understanding should also keep pace with the times, still staying in the background interpretation and application of the law of the underdeveloped technology of the production and dissemination of audiovisual works in the distant past, which is no longer compatible with the development and changes of science and technology, economy and society.

　　Fourth, the production and dissemination of live broadcast pictures of sports events and other cultural and sports activities, the investment in funds, labor, time, etc. is huge, and under the premise of live broadcast technical specifications, the selection, arrangement and live broadcast of pictures are particularly original. More importantly, watching and appreciating live broadcast programs of cultural and sports activities such as sports events has become the most important part of social and cultural life. There are also many upstream and downstream industries related to the live broadcast of sports events and other cultural and sports activities, and the interests involve a wide range. It is the proper meaning of legal interpretation and application to give strong protection to producers and disseminators of live broadcasts of sports events and other cultural and sports activities to ensure the incentive to produce and disseminate audio-visual works, to ensure the supply of such cultural products, and to take into account the interests of many industries and the needs of the people's cultural life. On the grounds of lack of fixity, negating the workability of live broadcasts of sports events and other cultural and sports activities, and interpreting the continuous pictures fixed at the end of live broadcasts as video products, although it can also give certain incentives to producers and disseminators, compared with the live broadcast screens as works, the content of rights is obviously less, the intensity of protection is obviously low, the protection effect is obviously weak, and it is impossible to effectively curb frequent infringements.

　　Fifth, the work is completed, including full completion and partial completion. From beginning to end, live broadcasting a complete football match belongs to the completion of the work. Only the live broadcast of the first half of the football game is also the completion of the work. It is determined that the live broadcast of sports events and other cultural and sports events with originality is an electrical work, and there is no problem that the Supreme Court of Japan says that it is impossible to judge when the work will be completed. (The author is Professor Li Yang, School of Law, Sun Yat-sen University)