As the 2022 Beijing Winter Olympics are in full swing, more and more users choose to watch the event on their mobile phones in real time to feel the excitement of the games and share the joy of victory. However, some unlicensed cellphone platform operators also live broadcast the event on self-operated apps.

On the afternoon of February 11, 2022, the Pudong New Area People's Court of Shanghai ("Shanghai Pudong Court") received an application for act preservation filed by CCTV International Network Co., Ltd. ("CCTV International"), the exclusively licensed broadcaster of Beijing Winter Olympics. Upon acceptance, the judge worked overtime on weekends to examine it. On February 13, that was, within 48 hours of accepting the application, the court made a ruling ((2022) Shanghai 0115 Act Preservation No.1) that the respondent, Zhuhai Chuanghai New Network Technology Co., Ltd. ("Chuanghai New") shall immediately stop providing live audio-visual programs of the opening and closing ceremonies as well as events of the 2022 Beijing Winter Olympics. The ruling shall take effect immediately after it is served.

[Case Review]

The applicant, CCTV International, claimed that it's authorized by the International Olympic Committee and China Media Group to exclusively disseminate, broadcast and provide programs of the 2022 Beijing Winter Olympics to the public through information networks and has the right to protect its rights.

Since the opening of 2022 Beijing Winter Olympics, it found that the event was live broadcast on a mobile software operated by Chuanghai New, which constituted copyright infringement and unfair competition. Therefore, it requested the court to order Chuanghai New to strengthen the review of contents to be live broadcast on the mobile software and not to provide any Beijing Winter Olympics programs and the opening and closing ceremonies without permission during the Olympics.

[Case Study]

According to the law, the Shanghai Pudong Court reviewed the case from four aspects, namely whether the application has factual and legal basis, whether it will cause irreparable damage, whether it will lead to significant imbalance of interests, and whether it will damage the public interest.

After review, the court held that 2022 Beijing Winter Olympics programs are original audio-visual works. The applicant, CCTV International, is legally authorized to exclusively disseminate, broadcast and provide programs of the 2022 Beijing Winter Olympics to the public through information networks, and have the right to sub-license and to protect its right. The effect of intellectual property right it sought to protect is stable. Chuanghai New has, without permission, disseminated and broadcast the events of 2022 Beijing Winter Olympics to the public through information network on its self-operated mobile broadcaster software. Therefore, the applicant's request for act preservation has factual and legal basis.

The 2022 Beijing Winter Olympics has aroused great social attention and influence. Relevant event programs are highly time-sensitive and popular, with extremely high economic value, which can bring great economic benefits to the applicant. The alleged infringing act of Chuanghai New took place during the 2022 Beijing Winter Olympics, which, if not stopped in time, will cause irreparable damage to the applicant's competitive advantage and economic benefits. The applicant's request for act preservation is clearly targeted and within the reasonable scope, for which corresponding guarantee has been provided, therefore, act preservation won't cause significant imbalance of interests between the interested parties nor damage the public interest.

To sum up, the Shanghai Pudong Court made the above ruling.

[Relevant Laws]

I. Civil Procedure Law of the People's Republic of China

Article 103 For a case where, for the conduct of a party or for other reasons, it may be difficult to execute a judgment or any other damage may be caused to a party, a people's court may, upon application of the opposing party, issue a ruling on preservation of the party's property, order certain conduct of the party or prohibit the party from certain conduct; and if no party applies, the people's court may, when necessary, issue a ruling to take a preservative measure.

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Article 104 Where the lawful rights and interests of an interested party will be irreparably damaged if an application for preservation is not filed immediately under urgent circumstances, the interested party may, before instituting an action or applying for arbitration, apply to the people's court at the place where the property to be preserved is located or at the place of domicile of the respondent or a people's court having jurisdiction over the case for taking preservative measures. The applicant shall provide security and, if the applicant fails to provide security, the people's court shall issue a ruling to dismiss the application.

After accepting an application, a people's court must issue a ruling within 48 hours; and if it rules to take a preservative measure, the measure shall be executed immediately.

Where the applicant fails to institute an action or apply for arbitration in accordance with law within 30 days after the people's court takes a preservative measure, the people's court shall remove preservation.

Article 105 Preservation shall be limited to the extent specified in an application or the property in connection with the case.

Article 157 The scope of application of a ruling shall include:

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(4) Preservation and advance enforcement;

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II. Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in Cases Involving the Review of Act Preservation in Intellectual Property Disputes

Article 7 The people's court shall take the following factors into consideration in reviewing the application for act preservation:

(1) whether the applicant's request has a factual basis and a legal basis, including whether the validity of the claimed intellectual property right is stable;

(2) whether not taking act preservation measures will cause irreparable damage to the applicant's legitimate rights and interests or cause the judgment of the case to be difficult to enforce;

(3) whether the damage caused to the applicant by not taking act preservation measures exceeds the damage caused to the respondent by taking the act preservation measures;

(4) whether taking act preservation measures harms the public interest; and

(5) other factors that should be considered.

(Author: Chen Weifeng, Shanghai Pudong Court)