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Research on Infringement of Short Videos in Secondary Creation of Film and Television Works

  With the development of the self-media industry, there are more and more acts of citing film and television works for secondary creation on the Internet, which has contributed to the prosperity of intellectual property rights, but also brought about various copyright disputes. In April 2021, more than 70 domestic film and television media units, including China Television Arts Exchange Association, China TV Drama Production Industry Association, etc., issued a joint proposal, calling on short video platforms to actively participate in the compliance governance of copyright content and clean up unauthorized content. Contents of film and television works such as cutting, moving, quick viewing and compilation. With the development of the Internet and high-quality media, the number of network users is increasing, and the unauthorized use of other people’s works such as “copying”, “cutting”, “adaptation” and other behaviors is increasing, which damages the rights of authors and reduces the enthusiasm of the original creators. , and also violates the concept of copyright law to protect the rights and interests of the original creator of the work.
  1 Definition and types of secondary creation of film and
  television works refers to the act of forming a new “work” based on the original video, by adding comments and editing to the video, and publishing and disseminating it. According to the provisions of the Copyright Law, secondary creation acts are essentially deductive acts, and should obtain the permission of the original author and pay the fee, while a large number of secondary creation acts on the online platform belong to “unauthorized use and editing of the original video”, which is an infringement. In addition, secondary creation also involves infringement of the original author’s right of reproduction and information network dissemination, and should be regulated.
  The secondary creation of film and television works can be roughly divided into several categories: First, the introduction category. It mainly describes the plot of the original film and television work with a short content, cites the pictures and soundtracks of the original work in the video, and converts the original plot into a refined expression. The most common is “a few minutes to watch the movie series”, such videos are short in length, the audience can roughly finish a movie in fragmented time, and the producers often describe the storyline in a witty and humorous way, so the audience is wide. Second, comments. This type of video provides individual interpretations and comments on the characters, plots, pictures, and background stories of film and television works. Different from introductory videos, commentary short videos contain more personal thoughts of the producers. Commentary short videos will also involve the content of the original film and television works, but their purpose is to focus on analyzing complex storylines, unique characters, camera language, shooting techniques, etc., not purely introduction, such works will be based on the producer’s preference. Comments, rather than advancing according to the storyline of the original plot, are generally distinguishable between the two types of works. In short, the characteristics of this type of short video focus on comments. The producer intentionally selects some of the content to focus on analysis, and conveys certain concepts and ideas of the producer. Third, the mixed-cut category. One or more film and television works are used as material, and the expression is reconstructed by editing the clips. The quality of mixed-cut short videos varies widely, and excellent mixed-cut videos can’t help but be admired, but there are also some shoddy works, which are just a simple patchwork of film and television works, and should be treated differently.
  2 Infringement of secondary creation of
  film and television works 2.1 Infringement performance and causes of secondary creation of film and television works
  With the advent of the new media era, the short video industry has flourished, and at the same time, it has also caused the frequent occurrence of short video infringements, seriously infringing on the rights and interests of the original authors. If the producer creates a short video without the permission of the original author, his behavior may be controlled by the following exclusive rights of the copyright owner: First, the reproduction right. In the past, the understanding of reproduction rights was limited to copying the entire work, and neither abbreviations nor abbreviations constituted infringement of reproduction rights. The factor of quantity is no longer important today, and even if only a fragment of the original work is cited, as long as the fragment is the subject matter of copyright protection, it falls within the control of the original author’s reproduction right. Therefore, if the secondary creation of the short video cites part of the original work, it may infringe the reproduction right of the original work. Second, the right of adaptation. A derivative work is “a new work derived from the original work, and although the new work has the spiritual achievements of the later creator, it does not change the basic expression of the original work.” [See Liang Zhiwen: “On the Protection Scope of the Right of Deduction”, in China Legal Science, No. 5, 2015, p. 150. ] The deduced works are not the existence of the original works, but add original expressions, which are new works, but still retain some of the connotations of the original works. Therefore, to judge whether a short video created by film and television infringes the right of adaptation, it is necessary to judge that the new short video complies with the copyright requirements of the work, and then consider whether the new work is similar to the original work. Judgments are made based on the copyright principle of “protecting only the expression of ideas and not ideas”. If the judgment result finds that the new work deviates from the expression of the original work, it may be an original work or fair use and not considered an infringement.
  This paper believes that the reasons for the frequent occurrence of infringements are as follows: First, the short video industry contains huge benefits and the entry threshold is low. In the current era, every user can make and publish short videos. There are almost no threshold requirements in this industry. Many users hope to benefit from the huge market, which has attracted many short video creators to join. Second, the platform supervision is insufficient. On the one hand, the platform neglects its obligations to supervise, and exempts itself from its responsibilities through the “safe haven rule”. The “safe haven principle” refers to a network service provider that only provides space services. When informed by the rights holder of infringement, the relevant content should be deleted, otherwise it will be regarded as infringement. As a result, the “safe harbor rule” often becomes the “safe harbor” of the platform, reducing the platform’s initiative to actively review short videos. Third, the cost of infringement is low, while the cost of rights protection is high. The short video infringers are scattered, the number of infringers is large, it is difficult to obtain evidence, and the amount of infringement compensation is low. For example, in the “Baidu v. Youku case”, the plaintiff, Baidu, paid as much as 50,000 yuan for lawyer fees, but the court finally decided that the amount of compensation was only 2,000 yuan. [See Beijing Internet Court (2019) Jing 0491 Min Chu No. 29791 First Instance Civil Judgment. ]
  2.2 The application of fair use rules in secondary creation
  my country’s Copyright Law stipulates the situation of fair use, and the secondary creation of film and television works involves the issue of appropriate citation, that is, “for the purpose of introducing, commenting on a certain work or explaining a certain issue, properly citing other people’s published works in a work shall not affect the issue of appropriate citation. The normal use of the original work does not unreasonably damage the legitimate interests of the original copyright owner.” The academic circles collectively refer to “the act of using a work without obtaining the permission of the right holder nor paying the fee to it under statutory circumstances” as “fair use”. [Wu Handong. Research on the Copyright Fair Use System [M]. Beijing. Renmin University of China Press, 2013: 290] However, the law lacks specifics on what is “appropriate citation” and what is “without unreasonable infringement of the interests of the copyright owner” description, which has led to many disputes over fair use determinations. In judicial practice and theoretical research, many judges and scholars have invoked the American “Four Elements” analysis method, that is, the purpose of the cited work, the nature of the cited work, the proportion of the cited work in the entire work, and whether the citation will affect the original work. The normal use of the original work or the adverse impact on the potential market of the original work is comprehensively identified. However, the “four elements” method also has great uncertainty, and scholars’ understanding of each element is also inconsistent. More importantly, the importance of each element in the “four elements” is also different in the current fair use system in the United States. , in a specific case, which element is more important still depends on the judge’s subjective judgment.

  Whether it is the fair use clause stipulated in my country’s Copyright Law or the four-factor analysis method in the United States, there are great uncertainties when analyzing the behavior of secondary creation of short videos. This paper believes that the judgment of the reasonable use of the secondary film and television creation should focus on the following points: First, whether it constitutes transformative use. Transformative use reduces the consideration of commercial purposes and commercial factors in fair use, and is currently regarded as the latest achievement of fair use. According to the analysis method of four elements, the first item is “purpose and nature of use”, and the second There is no doubt that creative behavior is a commercial behavior. Even if the producer claims that he does not charge fees from the website, the advertisements on the website, the video content to increase the producer’s popularity, and the gifts from the audience are regarded as behaviors with commercial factors. Therefore, under the four elements, the secondary creation of film and television works is not a fair use. Since the “four elements” cannot avoid the problem of commercial use, the theory of conversion use gradually emerged in judicial practice. To constitute transformational use, secondary creation is required to add “new content” to the original work or have other purposes or properties, so as to constitute purposeful transformation or sexual transformation in content. That is to say, in the second creation, a new creation needs to be carried out on the basis of the original work, so that the new work presents different values ​​or functions. Among the above-mentioned types of secondary creation behaviors, the introduction class obviously does not meet the requirements of transformative use; In the secondary creations of commentary and mixed-cut creations, if the new works formed on the basis of moderately citing the original works contain more of the creators’ unique opinions and personal expressions, the limited content of the cited works is not substantive. part, such reference shall be considered fair use. Second, consider the impact of citations on the market value of the original work. Undoubtedly, the secondary creation act also has a promoting effect on the dissemination of the original work, but its dissemination also has a negative impact on the market of the original work, which is usually reflected in the substitution effect on the original market, and the new work destroys the original work and the original work. its derivative market. At present, there are many short commentary videos on the market, which often simplify and retell the storyline of the original work. The audience is likely to stop watching the original video after watching it, and the essence of film and television works also lies in the design of the storyline. Thus, such commentary behavior actually undermines the consumption of the original work in the physical market and has a negative impact on fair use. The fair use rule requires that the legitimate interests of the original author must be reasonably harmed, so the damage within a reasonable range, such as the need for social interests, should be regarded as within the tolerance of the copyright owner from the perspective of encouraging creation. Third, consider the number of cited works. Although the importance of this factor in fair use is becoming less and less, and even in many cases of transformational use, the consideration of the number of cited works is simply abandoned. For example, in the famous Google case, Google will use all the books Upload it to the Internet and fully cite the original work, but the court still finds that the act is fair use. However, in the issue of the secondary creation of film and television works, the number of citations is a very important criterion. If the original work is widely cited , the reference falls outside the scope of fair use.
  3 Approaches to Governing Infringement of Secondary Creation
  Some secondary editing works of film and television infringe the copyright of the original author and should be regulated. However, relying solely on judicial adjudication and “sports-style” law enforcement and clean-up cannot achieve a fundamental governance effect, and governance countermeasures should be put forward in various ways.
  3.1 Improve the safe harbor rules, and the platform assumes more responsibilities The
  safe harbor rules allow the platform to obtain the right to be exempted. The platform will consider that it does not need to take responsibility if the “notice to delete” is fulfilled. Article 11 stipulates that the network service platform should assume a higher duty of care. The platform side should perform a more active duty of care. It is undeniable that in some cases, it is indeed difficult for the platform to foresee the occurrence of infringements, and it is not always necessary to strictly review in advance, but some obvious suspected infringements cannot be ignored. For example, for the latest popular TV dramas, the platform is likely to lack copyright. At the same time, such short videos are often marked with the name of the popular drama, so the platform has the ability to review in advance to avoid the spread of infringement results. In individual cases, some users even use words like “pre-emptive viewing” and other words similar to alleged infringement. For this infringement, it can be presumed that the short video website is “knowing or should have known”. Therefore, the safe harbor rule and the “notice-takedown” rule should be improved to provide a clearer basis for copyright infringement and protection.
  3.2 Establish an effective supervision mechanism
  The current phenomenon of short video infringement is frequent, and an effective supervision mechanism needs to be established to realize platform self-discipline. Technical breakthroughs can be made to establish a copyright filtering mechanism. YouTube abroad has implemented content identification monitoring for a long time. This system can automatically monitor the content uploaded by users. By comparing the original video and cooperating with manual review, it can effectively prevent the occurrence of infringement. Regarding the monitoring results, if it is an infringing work that is reviewed for the first time, it should be warned or deleted, and if the illegal content is uploaded repeatedly, the account should be frozen or banned.
  3 Implement the “micro-copyright” mechanism
  Compared with traditional full copyright, “microcopyright” is a small and microcopyright form. It is bred in the digital age, grows in the Internet ecology, and is composed of one or more knowledge elements of network information copyright. [See Yu Guoming: “Insights into the Future Development of China’s Video Industry: Opportunities, Challenges and Countermeasures”, Journal of News and Writing, No. 7, 2021. ] In the new media era, the sharing of works is more encouraged, and a simple copyright licensing system is set up, which is not only conducive to the dissemination of works, but also to the original author’s gain. At present, although some short video producers know that their actions violate the rights of the original author, there is no effective way to obtain the permission of the original author. Microcopyright can establish an authorization system between the original work, the platform and the creator. The original work relies on the platform’s extensive user base, cooperates with the video platform, authorizes the platform to promote, promotes the dissemination of the original work and short videos, and gains value during this period. To achieve a win-win situation.
  3.4 Self-discipline of individuals and industries is required The
  short video industry requires personal self-discipline. The frequent occurrence of infringements in the short video industry shows that people are unwilling to pay for cultural products, which is related to our long-standing concept of consumption. It is also caused by the late start of copyright protection in my country and people’s lack of understanding of the value of intellectual achievements. In the current era, everyone can be a content disseminator or a content creator. The producers and publishers of short videos should avoid direct copying and transfer of other people’s videos. Except in the case of fair use, the permission of the original author and payment must be obtained when using the film and television works for secondary creation. The short video industry also needs the platform to act actively, make full use of various technologies to identify and delete infringing content, make good use of copyright industry norms, play a role of supervision, and promote industry self-discipline.