The sound development of the short video industry urgently needs copyright protection

【Think Tank】

　　Since 2016, online short video has shown an explosive development trend, and short video platforms such as Douyin, Kuaishou, and Meipai have continued to rise.

Data show that in 2020, my country's short video users will reach 722 million, and the market size is expected to reach 41.02 billion yuan.

　　However, while the online short video industry is booming, copyright disputes related to short videos have occurred frequently, causing widespread disputes in the theoretical and practical circles.

The controversial issues mainly boil down to two points: First, whether short video producers (including network anchors, users, self-media, etc.) use other people's works to make short videos constitute copyright infringement, or whether there is a possibility of fair use.

Second, if there is an infringement of online short videos, what kind of infringement liability should the platform bear? Whether the traditional "safe haven rules" apply to short video platforms.

The clarification of the above-mentioned issues is not only conducive to setting disputes, but also conducive to providing copyright protection for the sound development of my country's short video industry.

　　As far as the first question is concerned, a specific analysis should be carried out based on the current types of short videos.

In current practice, short videos mainly present the following types:

　　First, quick-watch short videos, that is, only condensed or trimmed some movies and TV series, without any comment or explanation.

Such short videos are usually for the convenience of users to learn about the plot in a short time, and their essence is to use the original picture and plot, which will affect the market and value of the original and cannot constitute fair use.

For example, in the "Wasu Media Company and iQiyi Copyright Dispute", the defendant uploaded a short video of about 4 minutes per episode in the "Wasu Mobile TV" app operated by him. The court held that the defendant's actions would affect the original work The normal use of, unreasonably damages the legitimate interests of the copyright owner, and cannot constitute fair use.

　　Second, comment and commentary short videos, typically short videos of online film reviews and commentary short videos of online games.

For short online film reviews, if the producer quotes the screens and plots of other film and television dramas for the purpose of criticizing or satirizing the original work itself, and the length of the cited works is suitable for the purpose of criticism or satire, then this This kind of citation is not to show the public the cited work itself, but has new value and significance, which belongs to the reasonable use of "introduction, comment or explanation" in the copyright law of our country.

　　Third, spoof short videos, such as "Xu Du Bar", uses classic film and television dramas such as "Returning the Pearl" and "The Legend of the White Lady" as the material, and then re-editing and dubbing on this basis, creating a series of unconventional Mix and match spoof short videos.

The analysis of this issue is similar to the aforementioned short online film review videos. The focus should be on whether the quotation of other people’s works by the producer is to achieve criticism or irony of the original work itself. If it exceeds the purpose of criticism or irony, the original work should be quoted significantly. There is a risk of infringement.

　　Regarding the second question mentioned above, if there are infringements of online short videos, the responsibility of short video platforms should also be discussed in different situations.

　　First of all, if the short video platform directly provides the infringing video, or the short video platform cannot provide evidence to prove that the video on the platform is provided by the user, the court will consider the short video platform to provide it. At this time, if the short video platform cannot raise a fair use defense , Then it will bear the responsibility for direct copyright infringement.

　　Secondly, if there is a cooperative or mutually beneficial relationship between the short video platform and the uploading user, then the short video platform will perform a higher duty of care due to its direct benefit behavior, otherwise it will bear joint tort liability.

For example, in the "Youku v. Dubbing Show App Copyright Case", the court found that the "User Agreement and Privacy Policy" submitted by the short video platform dubbing show indicated that the dubbing show and the user had a close relationship with the user regarding the benefit sharing of the works involved, and had obvious gains. Li's subjective intention.

　　Thirdly, it is important to pay attention to the determination of duty of care and infringement liability of short video platforms. Unlike the dissemination of complete videos in the past, many works disseminated by short video platforms are short and condensed videos created by network users. Not obvious.

Whether some adaptations constitute fair use requires professional and complex judgments, which are often beyond the capabilities of network users and short video platforms.

Therefore, the short video platform did not delete the short video after receiving the notice of the right holder’s complaint. It cannot be concluded that the short video platform absolutely violated the duty of care and thus bears the infringement liability. Instead, it should be regarded as the short video platform giving up the "safe haven". Then apply the general rules of infringement determination, and deal with the faults of the short video platform after further investigation.

(Author: Wang Qian, a professor of East China University of Politics and Law law; Yuan Feng, Department of Communication Studies lecturer ECUPL)

【Legal Term】

　　Safe Harbor Principle: In online infringement, the infringed person must promptly notify the network service provider of the infringing content he finds. After receiving the notice, the network service provider shall promptly delete, block, and disconnect the link in accordance with the law. Take responsibility.