Where Is The Legal Boundary Of "X Minutes To Watch A Movie" Film And Television Creation? Experts Say The Key Is "Reasonable Use" Or "Substantial Substitution"

One wave has not subsided, another wave has come. The pain of savage growth of short video copyright has been continuously targeted.

On April 28, the state film Administration (NFA) said that it would cooperate with the national copyright administration to continue to crack down on the infringement of film copyright by short videos, and resolutely crack down on the infringement of film copyright by short video platforms, we media and public account producers and operators who copy, edit and disseminate other people's film works without authorization, We will actively protect the legitimate rights and interests of film copyright owners.

Previously, five video websites, including 15 film and television industry associations, 53 film and television companies and aiyouteng, have jointly issued two industry statements with 514 actors, calling on short video platforms to promote copyright content compliance management, clean up unauthorized content, and put forward more specific action guidance for public account production operators and rights holders.

The bullets are still flying. Many bloggers who edited the second time asked whether they could reserve some creative space in an interview? On April 28, the relevant person in charge of a short video platform disclosed to the 21st century economic news reporter that several short video platforms are negotiating with the long video platform on copyright purchase, but they feel that the other party's willingness to cooperate is not strong.

Under the framework of "reasonable use" in the new copyright law, how to balance the contradiction between film and television copyright protection and the accommodation of short video secondary innovation space is a topic that needs to be discussed by the industry, academia and the whole society.

"I hope to leave some space for erchuang"

Since April 9, after two joint statements on "infringement of short video", the national copyright administration and the state film administration began to pay attention. Intensive action is constantly ringing the alarm of the creators of short videos. Can you go on with this? How serious will the blow be? These are the topics they need to watch and discuss every day.

Among these actions, the second statement issued on April 23 was more specific and clear, focusing on two major disaster areas, namely, "original film handling" and "slicing collection". But the other short video bloggers who created the second time seem to be on the verge of breaking the law.

"I hope to leave a little bit of breathing space for ER Chuang's editing." On April 25th, the well-known short video creator "scissors hand Xuanyuan", which has 700000 fans, issued such a sentiment. He said that due to the copyright owner's request, his own contribution of "sex transfer" in the secret corner (Jiang Shuying / Zhang Zifeng / Liu Haoran) failed to pass the examination of the platform, "even if you only use the original play's IP clip version / ancient version / through version, it will be off the shelf."

Two days later, "scissors hand Xuanyuan" said again that it hoped that the platform and copyright owners could respect the love and hard work of "scissors hands", distinguish the "Er Chuang video" of painstaking work from simple cutting and transporting, and can also negotiate a balance point between each other.

There are also 100000 fans, bloggers told reporters that they firmly support the protection of intellectual property rights, but refuse to deal with all aspects. He proposed that it is hoped that a consensus can be reached between the copyright owners and the platform to clarify what kind of content and how long editing is considered as infringement, and what degree of second cutting and second creation is allowed, so as to give many "second creators" a relatively free space for creation.

Zhu Wei, deputy director of the communication law center of China University of political science and law, also reminded that before the complete policies and regulations are settled, some space for prudent communication between them should be set aside. "If the policies and regulations are completely one size fits all, it is undoubtedly not conducive to cultural and economic development."

Qiao Wanli, senior partner of Zhejiang Zeda law firm and deputy director of Intellectual Property Committee of Hangzhou Lawyers Association, also believes that "even if we return to the competition of long and short video platforms, the survival of the fittest is not the only criterion."

"Fair use" or "substantial substitution"?

When discussing the issue of short video secondary editing, we may return to the law itself.

The new copyright law, which will be formally implemented on June 1, 2021, adjusts the definition of "work" and modifies the expression of "film works and works created by similar film making methods" to "audio-visual works" in the current law, so as to bring short video into the scope of law.

In addition, Article 22 of the newly revised copyright law stipulates 12 kinds of "fair use", which can constitute "fair use" of works published by others for personal study, research or appreciation. However, the name of the author or the name of the work shall be specified, and the normal use of the work shall not be affected, nor shall the legitimate rights and interests of the copyright owner be reasonably damaged.

Xia Hailong, a lawyer from Shanghai Shenlun law firm, explained that the reason for the detailed enumeration of reasonable use cases is that it is very difficult to make the same provision for infringement at the legal level.

According to his observation, according to the existing relevant cases, whether the secondary creation of short video using long video pictures and fragments is a reasonable use or not is whether the secondary creation constitutes a "substantial replacement" of the original work.

"Substantial substitution" refers to that after watching a work created twice, the audience will have a relatively complete understanding of the main contents of the original work, so that the audience will not go to see the original work again. Based on the legislative intent of the copyright law, the law will consider that in this case, the secondary creation of the work has caused the loss of audience of the original work and should be compensated. " However, he also stressed that the current determination of "substantive substitution" varies from case to case and from person to person, and is greatly affected by the degree of proof provided by both parties and the understanding of all parties in the lawsuit. Therefore, the flexibility in practice is the inherent feature of copyright disputes.

The reporter noted that the "fair use" system is due to China's accession to the Berne Convention, the agreement on trade related aspects of intellectual property rights and the copyright treaty of the World Intellectual Property Organization (WIPO). As a member state, China should implement its international obligations to implement the "three-step test" stipulated in international treaties.

The so-called "three-step test" means that it can only be made under special circumstances, does not conflict with the normal use of the work, and there is no reason to damage the legitimate interests of the obligee, which can be exceptional restrictions on copyright.

Xia Hailong introduced that in 2020, the case of a long video platform suing a movie app was a conclusion drawn through the "three-step test". The court held that the defendant's second creation constituted "substantial substitution" to the original work, precisely because the defendant's work objectively reduced the audience number of the original work and damaged its legitimate interests.

The court held that the act of "providing works to the public by wired or wireless means" stipulated in Article 10 (12) of the copyright law should not be interpreted narrowly as providing complete works to the public, because the copyright law protects the original expression. As long as the original expression part of the work is used, it is within the control scope of the right of information network dissemination of works.

Long and short video market pattern is changing

For the first time, the debate over the interests of "long and short" videos has been put on the stage on such a large scale for the first time.

According to questmobile's latest data, in December 2020, the number of domestic short video users increased by 6% year-on-year to 872 million, and the average monthly usage time increased by 39.7% to 42.6 hours. There is no doubt that the headline system and fast hand system still firmly occupy the head traffic of the short video industry.

"Er Chuang" video clip also brought a lot of new users. According to the "2020 twitter content e-commerce data report" released by feigua data, from the perspective of the distribution of broadcasters with an annual increase of one million, film and television entertainment, game, life and other pan entertainment industries have achieved better results. Among them, the film and television entertainment effect ranked first.

Behind the short video platform and short video producers' nearly "free" use of film and television works, there is a content library built by multi parent video platform with real money. According to the financial report data, in 2020, iqiyi's content cost will reach 20.9 billion yuan; Tencent content costs 58.2 billion yuan, many of which are invested in Tencent video.

Gradually eroded by the users and traffic, the film and television industry has become the main driving force for the rapid protection of rights. And joint action is also quietly changing the current market structure.

However, the relationship between long and short videos is not so simple. Zhu Wei pointed out that secondary creation is an important publicity form in the film and television industry, and the long video platform will also expand its influence on the short video platform with the help of these secondary creations. For example, this year's box office champion "Hello Li Huanying" gained a wider range of popularity through the secondary communication of short video platform.

"Although the two sides are fighting each other, the trend of short video is irreversible." Qiao Wanli believes that both sides should face up to this reality and make adjustments and changes within the company and the industry.

On April 28, the relevant person in charge of a short video platform disclosed to 21 reporters that several short video platforms are negotiating with the long video platform on copyright purchase, "but we feel that the other party's willingness to cooperate is not high."

And the interior of the long video platform is also changing. On April 24, the second day after the publication of the proposal, Tencent content open platform added online editing function to the video publishing page of the web version. Users can use the legitimate video provided by Tencent to edit movies and TV.

At the same time, Tencent said in the announcement of income adjustment of Tencent micro video creators that "the platform will comprehensively evaluate the content originality, content quality and content production cost, and strictly crack down on the porters".

Copyright protection and the balance of "two innovations"

"A normal business ethics and business rules should be established." Cao Wei, associate professor of the school of civil and commercial law of Southwest University of political science and law, believes that the action of protecting the rights of the short video is a good opportunity for discussion. In the case of non-commercial use, secondary creation can be vigorously carried out. If it is commercial communication, then we should still abide by the existing rules.

In his opinion, how to balance copyright protection and "secondary creation"“ Where is the boundary of "secondary creation"? How can we not close the door of "secondary creation"? They are all topics for discussion.

21 the reporter noted that on April 20, 2018, the Beijing Higher People's Court issued the "guidelines for trial of copyright infringement cases", which further clarified the considerations of "appropriate citation", including whether the cited works have been published; Whether the purpose of quotation is to introduce, comment on the work or to explain the problem; Whether the proportion in the accused infringement works is appropriate; Whether it causes damage to the normal use of the original work or the legitimate interests of the obligee.

In addition, it can be seen from the statement of the state film administration that the government does not intend to "kill all short videos" in a "one size fits all", but emphasizes "better play the positive role of short videos in film publicity, review, research, etc.

The state film administration has also expressed its support for the collective management organizations of film copyright to strengthen their own construction, carry out the collective management of film copyright in accordance with the law, and encourage the joint development of film copyright protection with cinematic Film Copyright Protection Alliance. On the one hand, it protects the legitimate rights of film copyright owners, on the other hand, it facilitates the legitimate use of users. This is consistent with the third solution proposed by the State Copyright Administration on April 23.

"The two recent joint statements are actually a signal of cooperation." Xia Hailong pointed out that long video platform, short video platform and short video producer can refer to the solution of karaoke industry, "if copyright, platform and creator can change ideas and solve the problem of benefit distribution in each link, the overall income may be higher."

The industry is also trying to solve the problem. For example, fast hand has added a separate settlement channel for word and music copyright and an independent music person settlement channel on the basis of the original copyright settlement; For example, station B, iqiyi and Tencent encourage users to carry out "second innovation" on the basis of their existing copyright.

The market is in turmoil. Song Peng, judge of the trial supervision court of the Beijing Intellectual Property Court, said in a public law popularization video released by the court on the 27th that if the short video producer intercepts and uses the pictures of the film works without the permission of the obligee, the serial use of the pictures shows the key plot or narrative context of the film works, and spreads the short video through the network, which may lead to the market substitution of the copyright works, Thus, the rights and interests of the obligee of the film works will be damaged, and this kind of utilization is likely to constitute infringement.

"If a small number of pictures are properly quoted and used for the purpose of commenting on the film work or explaining other issues, it may constitute reasonable use without the permission of the copyright owner and without payment of remuneration." Song Peng said.