Did CCTV’s Utilization of a Photographer’s Video Clip Violate the Author’s Copyright

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(Author: Chen Binyin; Source: DeBund Law Offices)

(Translated from the Chinese version by Wang Feng)       

Wang Yuanzong, a freelance photographer from Hubei Province recently claimed that CCTV (China’s state-owned TV channel) used his material in the episode “Villages famous for delicious food – cooked hogs” of the TV program – “Trips to wonderful Chinese Villages”, which was broadcasted on CCTV-7 on 22nd July 2015 without his authorization. This issue drew significant public attention soon after being disclosed by Mr. Wang on his Weibo (twitter-like social media in China). The rude remark by an “intern” with CCTV that “Even if CCTV abuses your works, so what?” resulted in criticism at its height.

In this article I will give you a brief analysis of this issue in light of our current knowledge.

Is the material a “photograph”?

Mr. Wang believed that the material in this issue is a “photograph”, which may not be correct. Based on the information of the program on the website, I found out that the material claimed by Mr. Wang is a recorded video, not a photograph. This material should fall into the category of “films and works created in ways similar to those in which films are made” under the Copyright Law and the Regulation for the Implementation of the Copyright Law (“Regulation” below).

The PRC Copyright Law provides a definition for “photographs”, and it refers to “artistic works recorded on photographic materials or other media by some instruments”. Generally, these works are static pictures, also known as “photos”.

Unlike the static pictures as mentioned above, “films and works created in ways similar to those in which films are made” has its own definition as “works recorded on some media, comprised of a series of images with or without sound, and displayed by suitable device or transmitted by other means”. In terms of its components and forms and means of transmission, the material in this issue conforms, to a larger extent, to this definition, or in common words, is a “video”.

The significance of classifying works into certain types lies in (a) people should specify what type of copyright has been violated when they claim copyright infringement; (b) compared with “films and works created in ways similar to those in which films are made”, “photograph” owners have the extra “exhibition right”. For those who are seeking protection of their legal rights, the more infringed rights they claim, the more easily to prove subjective malice of the other side. However, as mentioned above, the material in this issue may not be identified as a static “photograph” easily.

Is the material copyrightable under the Copyright Law?

A copyrightable “work” under the Copyright Law should meet three conditions – (a) being an intellectual achievement; (b) having a fixed form of expression and (c) being original, of which being original is the priority.

Apparently the video used by CCTV in this issue is an intellectual achievement. Although it was natural scenery being recorded, the recorded production must be the result of intellectual work. Notwithstanding its contents and fixed form of expression, the material exists as a complete real work, not an imaginative concept in the author’s mind, and has been recorded on a carrier, enabling them to be displayed repeatedly.

However, as to the originality of the material, no conclusion will be made herein.

Originality includes “uniqueness” and “creativity” in nature. In terms of “creativity”, even though the selection of elements, the composition of pictures, the control of duration and the extent of exposure are on the basis of the most common judgment, it would not be difficult to see the high degree of intelligence. However, in terms of “uniqueness”, as Tibet is Shambhala (meaning utopia) in the eyes of artists where a lot of photographs and audio and visual works originate, whether CCTV could find prior similar work or Mr. Wang Yuanzong could deny having access to prior similar work, makes the “uniqueness” uncertain.

Who is the copyright owner of the “copyright” to this video?

If he intends to seek protection of relevant rights, especially property rights under the copyright law, and claim damages with respect to the video clip deemed as a copyrightable “work”, Mr. Wang will have to prove that he is “owner” of the copyright to the copyrighted work.

I learnt from Mr. Wang’s Weibo that he formerly worked as “photographer for Tibet Travel Agency Inc.”. It was alleged by Mr. Wang himself that the clip sourced from the program Starry Sky of Tibet he produced in 2013. Then, if Mr. Wang recorded the video clip during his working time and used company resources during creation, or had a deal with Tibet Travel Agency Inc. that the copyright of work during employment belonged to company, the legal status would be (a) Mr. Wang enjoys the right of authorship and the company owns all the other copyrights or, (b) Mr. Wang owns the copyright, but the company has the priority to use that program within 2 years after its completion in 2013 and during this 2-year period Mr. Wang had no discretion to use the program, depending on the deal between them (if any).

If the above circumstance involving the copyright ownership does not exist and the video clip is an original work by Mr. Wang, it won’t be difficult for Mr. Wang to prove that he is the original copyright owner of the video clip by relying on another key term “RAW” labeled with the video. A video or photo with a “raw” file format means such video or photo is generated by photography equipment directly. Generally, any video or photo with such raw file format need to be edited before it is presented. However, after the raw file is edited, it cannot be restored back to the raw file. Without considering other factors, an owner of a work in RAW format should be deemed as owner and author of the original version of such a work.

The compensation may be low though the case may draw public  

This issue has drawn wide public attention and is heatedly discussed among the public, but even Mr. Wang files the lawsuit to the court, rational analysis shows a high possibility that, even if what CCTV did is found to constitute copyright infringement, the damage recover Mr. Wang will receive may be fewer than RMB 25,000, which he is claiming right now.

As a general rule currently applicable in China, “damages” in connection with copyright infringement cases should be determined based on “actual losses” or “benefits obtained by the infringing party from their infringement”. Back to the case above. It is hard for Mr. Wang to work out accurate results of his losses or benefits obtained by CCTV therefrom. Furthermore, the clip now accounts for only a small proportion of all the contents of the program Trips to Wonderful Chinese Villages. The whole program lasts about 20 minutes, but the clip is on for only a few seconds. Judging from previous similar cases and taking into account all the above factors, the court may not award as many damages as Mr. Wang claimed.

As a lot of details about this case have not been disclosed yet, opinions and comments contained herein are based solely on information accessible in the public domain. But in any event, perhaps employees with CCTV should use less “so what” when responding copyright issues to the outside.

Shortly after this article was published, by all accounts, CCTV paid the fee and apologized to Mr. Wang for its unauthorized use of the video clip. The dispute seems to end with an acceptable outcome for both parties.