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Does the Producer of a Talk Show Solely and Exclusively Enjoy Audiovisual Copyright?
On September 19th, 2018, the Supreme Court made the 2018 Tai Shang Zi No. 955 Judgment, a copyright infringement case concerning a talk show. According to the judgments of all instances, since the plaintiff (i.e., the program production and broadcasting team of the television company) used the camera to record video of all the program contents, including the program rundown, the guest discussion, etc., and combined titles and subtitles with the program contents by computers, such a work should be deemed as the audiovisual work defined in the Copyright Act. Moreover, the disputed program rundown, screen layout, guest discussion and title content, and other contents already reached a minimum degree of creativity or characteristic expression, and hence these contents should be protected by the Copyright Act. However, regarding who actually owns the copyright of the disputed program, there are different opinions between the judgments of all instances.
According to the 2014 Min Zhuan Shang Zi No. 2 Judgment of the second instance of the Intellectual Property Court, the copyright of the disputed program should be solely and exclusively owned by the plaintiff. Even though the disputed program is an audiovisual work concerning a talk show, the composition of the scenes of the disputed program was completed by the program production and broadcasting team which decided all live scenes switching, camera movements, sound effects accompanying every kind of conversation scenario, selection of news scenes, various setups of scenery and lighting, the program contents, selection of topics and guests, and even the arrangement of the seats before the show started. Also, in collaboration with the host to complete the show, the said team also took care of the pace of the show, switching between different questions, interaction with guests, and choice of which guest would be able to input the most pertinent feedback, based on the nature of each question and on the guest's professional field of expertise. Therefore, the audiovisual copyright of the program should belong to the plaintiff, namely the program production and broadcasting team. According to Paragraph 1, Article 5 of the Copyright Act, the guests’ answers and statements to the questions are also considered a kind of "oral and literary work." However, such elements only constitute a part of the audiovisual work, and their overall proportion is not high. Most of them are improvisational and are the oral/verbal expressions arising from the interaction between the host and other guests. This case is different from other audiovisual work, such as a karaoke music video which contains lyrics and instrumental tracks. Although the television company only submitted the consent forms by which the guests of the disputed program had already authorized the plaintiff to use as his/her oral and literary work, concerning the nature of the production process of the talk show, it should be considered that each guest participating in the disputed program may own the copyright of the oral and literary work solely created by the guest himself/herself; but, with respect to the overall audiovisual work, each guest participating in the disputed program should be deemed to have agreed that the plaintiff may produce and broadcast the audiovisual work from the oral and literary work expressed by the guests in the disputed program.
However, unlike the judgment of the second instance which held that the copyright owner of the talk show should be the plaintiff, namely the television company to which the production and broadcasting team belonged, judgments of the first and third instance held that the plaintiff was just one of the joint authors. According to the judgment of the first instance of the Intellectual Property Court’s 2013 Min Zhu Su Zi No. 28, the disputed program was composed of the oral discussion regarding the topics of current affairs between the host and the guests, so the host and the guests should be considered as "authors" for their contribution to the creation of the disputed program. In addition, the consent forms submitted by the plaintiff do not stipulate that the guest should transfer the property rights of the disputed program to the appellee. Still, the plaintiff also contributed to the creation of the rundown arrangement and layout of scenes of the disputed program. Despite not being granted any property rights from the host and the guest, the plaintiff still owns the property rights of the part of the disputed program it created. Hence, the plaintiff should be deemed to be a joint author. The judgment of the Supreme Court held the same opinion as well. The disputed program is considered an audiovisual work jointly composed by the work of the plaintiff’s program production and broadcasting team, and the live conversation exchange between the host and the guests. Since the disputed program was jointly created, and no one's work can be separated and used separately, its nature should be of a joint work. Unless otherwise agreed upon, the plaintiff, the host, and the guests are the joint authors of the single audiovisual work, and jointly own the property rights of the work. As for each author's share of the ownership of the disputed audiovisual work, since this issue relates to the amount of damages that the plaintiff may request, it is still unclear and cannot be judged by laws. Therefore, the part regarding the damages in the judgment of the second instance should be reversed, and the case should be remanded to the Intellectual Property Court.