In recent years, the Chinese variety shows has spread among all the TV programs. Variety shows such as marriage and dating program, talent and skill competition program, art performance program, and etc. emerged one after another. It has been a general phenomenon that variety shows "copy" each other, which gives rise to the issue of protecting copyright of TV variety shows. This article intends to discuss the possibilities and conditions to provide legal protection to the variety show patterns, based on the current status of Chinese variety shows and in conjunction with analysis on PRC Copyright Law and relevant stipulations issued by Beijing High People's Court in relation to the copyright of variety show.
1. Current Status of Variety Shows
The Chinese variety shows seem to be under plagiarism trouble. HNTV's Super Girl is claimed to copy American Idol, JSTV's If You Are the One is claimed to copy Somebody to Love of HNTV, Dragon TV's Go Fighting is claimed to copy X Challenge of Korea and Up Idol of HNTV is claimed to copy Outstanding Figures of Korea.
The copying trend of variety shows is closely related to the pattern of the variety shows. However, it is hard to identify "copy" as "infringement" from the legal perspective. It is generally accepted that creation is the core element of variety show patterns. Other elements such as the procedure of the program, rules and technical regulations are all inspired by such creation. However, creation is a kind of thought, while the PRC Copyright Law only protects original methods of expression other than the thought itself. This is the fundamental reason why variety show pattern can be hardly protected by Copyright Law.
2. Brief introduction of Explanations by Beijing High People's Court Regarding Several Issues in Hearing Cases Involving Copyright Disputes of Variety Shows
Beijing High People's Court issued and implemented Explanations by Beijing High People's Court Regarding Several Issues in Hearing Cases Involving Copyright Disputes of Variety Shows (hereinafter referred to as "Explanations on Copyright of Variety Shows") on April 4, 2015. This is the first and only stipulation in PRC regarding copyright of variety shows up till now.
First of all, Explanations on Copyright of Variety Shows recognizes that the video of variety shows with originality can be the work protected by Copyright Law. Variety show videos can be categorized into works created in a manner analogous to cinematography or video recordings based on whether it has originality (Article 2). If finished in sequential order of the script or shooting script, and by shot cut, shoot selection of frames and post editing, etc., the continuous frames of which indicate the conception of the producer, and express a certain kind of ideological contents, then the work is created in a manner analogous to cinematography; if recorded in the manner of mechanical methods, by which only simple adjustment was conducted on the selection of scene, setting of camera, and shot cut, or frames and sound of which are simply edited after the shooting, the work is video records (Article 3).
With regard to the pattern of variety shows and whether the pattern of variety shows is entitle to copyright, Article 10 of Explanations on Copyright of Variety Shows provided that "the pattern of variety show is a combination of the variety show creation, procedure, rules, technical regulations and presiding style, etc." Variety show pattern is deemed as thought, which will not be protected by Copyright Law.
According to the aforementioned provisions, Explanations on Copyright of Variety Shows did not explicitly exclude the variety show patterns out of the scope of copyright protection. Instead, it shall be determined, according to the Copyright Law, whether the variety show patterns is thought or expression. Variety show patterns classified as thought will not be protected by Copyright Law, while variety show patterns classified as expression are possibly to be protected by Copyright Law. However, it is not further explained in the Explanations on Copyright of Variety Shows that under which situation, the variety show patterns can be defined as expression instead of thought.
3. Discussion on the Conditions for Legal Protection over Variety Shows
(1). The object protected by the Copyright Law
The object protected by Copyright Law is the original expression of the work ("original works of literature, arts and sciences with intellectual results which can be reproduced in a tangible form"), namely, manifestation of thoughts and emotion, excluding thoughts or emotion itself indicated in the work.
The distinction between thought and expression is quite complicated under the Copyright Law, the boundary of which is the level of abstraction of the content. For example, generally speaking, the wording and phrasing, the design of plot in paragraphs, the design of plot in chapters, and the design of synopsis by the author of literary works reveal his or her originality. Furthermore, each of these indicates the thought and expression of the author. There is no doubt that from being specific to being abstract, the more abstract a certain part is, the more likely it reveals thought rather than expression. With respect to the contents of works, only when the work is specific enough as to some extent indicating unique choices, judgment, acceptance or rejection, can it be regarded as expression protected by the Copyright Law.
Variety show pattern is a combination of a series of elements inspired by creation. However, creation itself is a kind of thought. Therefore, other elements (including concept and positioning of the variety show, character design, rules and procedure, technical regulations, recording requirements, program style, and etc.) other than creation determine whether the variety show pattern can be protected by the Copyright Law, namely whether such other elements in the variety show works constitute original expression.
(2). Reference to Copyright Infringement Case of Qiongyao vs. Yuzheng
The block-buster copyright infringement case between Chen Zhe (Qiongyao) and Yu Zheng (Yuzheng) attracted high attention from society, which was successfully selected as 2015 Top 10 Intellectual Property Cases of the Supreme People's Court. From the view of the Supreme People's Court, this judgment had a direct significance for the distinction of thought and expression in respect of choice of plot, arrangement of structure, and proceeding of plot, etc. in literary works. In parallel, variety show patterns are mainly manifested by the arrangement of structure, the development sequence, procedure and rules of each component and segment of the program. Therefore, the copyright infringement case of Chen Zhe vs. Yu Zheng is a significant reference when discussing how to classify variety show patterns as expression instead of thought.
In the first instance judgment of copyright infringement case between Chen Zhe and Yu Zheng, when discussing the object of copyright, the Third Intermediate People's Court of Beijing holds that "as for literary works, even though sole plot itself lacks of enough originality, yet the anteroposterior cohesion and consecution between distinct plots may closely connect all of the plots and convert them into complete and personalized creative expression, which will endow the work with originality." And that "specific story structure, plot configuration and logical deduction can endow the work with originality as a whole, thus if the anterior work and the posterior work in comparison has similar overall appearance based on the same interior structure and the same plots collocation, even though some difference in the arrangement of part of the plots, the posterior work is regarded as reproduction or recomposing of the anterior work as a whole. Therefore, there is no doubt that character design, plots structure and internal logic connection specific enough are significant elements that shall be protected by Copyright Law."
When defining and distinguishing thought from expression, "specific enough" is the core and key element. For example, under general circumstance, with regard to character design and character relation, as they are limited expression (namely a kind of thought can solely be expressed in one way) or materials of public awareness, they will not be protected by Copyright Law. However, "if provided that the setting for identity of character, relation between characters, and specific correspondence between characters and specific plots is particular and concrete enough, then the setting for character and relation between characters will form specific expression." "The plots in literary works can be summarized as relatively abstract plots generalization, and from which relatively concrete plots presentation can be extracted. Therefore, with respect to the plot itself, there is still a boundary when defining it as thought or expression. To distinguish thought or expression, we shall notice whether these plots and the whole plot are in recapitulative and general narrative mode or they are specific enough so as to generate particular appreciation experience perceiving the origin of the work. If the work is specific enough to the extent that the critical point of thought and expression exists, then the work can be regarded as expression." Also for instance, necessary scene (i.e., the inevitable events, roles, layout, and scene adopted when creating a work with a certain theme) which is an indispensable expression for presenting particular theme, limited expression, and materials of public awareness are generally not protected by Copyright Law. However, "a complete story created by utilizing these materials, including setting of characters, relation between characters, scene, plots, the whole plot based on the developmental logic and configuration of the story, and many other elements will certainly be protected by Copyright Law."
Therefore, specific structure, arrangement of plots and logic deduction can be complete personalized creative expression, so as to endow the work with originality as a whole. Such opinion determines that variety show patterns which are mainly presented as structure, procedure and rules, have certain possibility to become the object protected by Copyright Law. Meanwhile, whether the elements of variety show patterns are "specific enough" determines whether it's likely to become expression instead of thought. In order to meet this condition, it's necessary to conduct detailed analysis and demonstration with respect to the fact that character design, structure, every step, proceeding methods, rules and procedure and internal logic connection, etc. of variety show patterns are specific enough, so as to prove that the organic integrity of these elements (the variety show pattern itself) has its originality.
Generally speaking, there merely exists any legal protection for variety show patterns. The lack of law, relevant interpretation and cases makes it vague for variety show patterns to obtain legal protection. However, based on the analysis of general terms of Copyright Law and protection rules established by other cases in juridical practice, the condition and possibility that variety show patterns is to be protected by Copyright Law can be preliminarily determined.