Dialogue New Media | Short Video Mixed Cut-Don't Fell into Infringement Pit

Background

On April 9, 53 film and television companies including Noon Sunshine, Huace, Limeng, Ciwen, Yaoke, Xinli, and 5 video websites including Tencent Video, iQiyi, Youku, and Mango TV made a joint statement (hereinafter referred to as "" Joint Statement "), calling for the protection of film and television copyright, it said that the production and operation of public accounts will initiate legal rights protection for the editing, cutting, handling, and dissemination of unauthorized short videos of film and television works, and at the same time call on all sectors of society to jointly prevent and resist infringements.

On April 28, the relevant person in charge of the National Film Administration stated that it will cooperate with the National Copyright Administration to continue to increase the crackdown on short video infringement of film copyright, and resolutely rectify the unauthorized copying of short video platforms and self-media and public account production operators. The infringement of editing and dissemination of other people's film works actively protects the legitimate rights and interests of the majority of film copyright holders.

"Mixed cut" infringement?

"Mixed cut" is a short video type of secondary creation based on the editing function, which originated from the famous YouTube video website. Mixed cut works originated from the powder circle. Fans or fans edit, splice and re-publicize film and television works out of their love for a certain movie or TV series, or their pursuit of a certain star or bean. today, under the upsurge of self-media and short videos, more upmasters (uploader, internet buzzwords, referring to people who upload video and audio files on video websites, forums and ftp sites [1]) choose to add personalized special effects or explanations in line with the trend, making the works more catering to the audience and gaining traffic and popularity.

Can't help but ask "mixed cut" infringement? We look for the answer from the following two hot cases.

1. "the glory of the king" case-the first MOBA game short video infringement case in China [2]

Basic case: A cultural company has set up a "the glory of the king" special area on the video platform it operates and actively recommend the glory of the king's short video of the game in a prominent position on the platform interface. At the same time, it has signed a "Game Video Program Cooperation Agreement" with several game users. The game users share wonderful operations after recording, editing, scoring and explaining the game pictures, and the platform obtains huge playback volume to obtain profits. Tencent believes that the continuous paintings of the "Glory of the King" game constitute electrical works, and the above-mentioned behavior of a cultural company infringes on Tencent's right to disseminate information on the Internet.

The result of the judgment: the court ruled in the first instance that the defendant, a cultural company, immediately stopped spreading the short video containing the game picture of "the glory of the king" on a video platform. Compensation for the economic losses of the plaintiff Tencent 4.8 million yuan and reasonable expenses of 160000 yuan; Reject other claims of the plaintiff Tencent.

Referee's point of view: Although the continuous picture of the "Glory of the King" game is not fixed on a certain medium through the method of filming, the type of work emphasizes the form of expression rather than the method of creation. Therefore, the overall picture of the "Glory of the King" game should be identified as an electrical work when it conforms to the characteristics of a series of pictures with or without sound. However, the 329832 short videos in the lawsuit were all formed after the players recorded, edited, scored and explained the pictures of the game running "the glory of the king". The videos were of different lengths and had already presented almost all the contents of the game, which exceeded the reasonable limit of proper quotation and did not constitute reasonable use.

2. The case of "Sansheng III Shili Peach Blossom" [3]

Basic case: The TV series "Sansheng III Shili Peach Blossom" is an excellent audio-visual work. Youku has spent a huge amount of money to obtain the exclusive information network dissemination rights and rights protection rights of the play. During the authorization period, the defendant provided a continuous atlas of the episodes involved in the case in the episode column on the "illustrated movie" platform developed and operated by the defendant, which contained 382 pictures, basically covering the main pictures and all plots of the first episode of the episode involved. Youku believes that the act constitutes an infringement of its right to disseminate information on the Internet and sued the court for compensation.

Judgment Result: The defendant compensated the plaintiff for economic losses of 30000 yuan.

Referee's point of view: First of all, the act of making a screenshot of an audio-visual work into a collection of pictures belongs to the act of using the work. In this case, the photo collection involved in the case intercepted 382 pictures in the drama collection involved in the case. These pictures are not creative elements entering the public domain, but content with original expression in the original drama collection involved. Therefore, the act of providing the photo collection involved in the case constitutes the act of providing works.

Secondly, the act of producing an "illustrated film" containing the main plot and key pictures of an audiovisual work does not constitute fair use. The criterion for a reasonable citation depends not only on the proportion of citation, but also on the reasonable need for introduction, comment or explanation.

Therefore, as far as the main functions provided by the photo album involved in the case are concerned, it does not provide the public with promotion and publicity information that retains the suspense of the plot, but covers the main plot and key pictures of the drama involved in the case, which will have a substantial impact on the market value of the original work, damage the normal use of the work, has exceeded the necessary limit of proper citation, and constitutes infringement.

"mixed cut" how infringement?

Why does short video mixing constitute infringement, and what rights in copyright infringement are specifically infringed? The following analysis tells one by one.

What specific rights are violated?

To interpret the "Copyright Law", Article 10 of the CCP stipulates that the subject of rights enjoys 4 personal rights and 12 property rights. Compared with the specific acts of resistance in the "Joint Statement", including editing, cutting, handling and dissemination, these specific acts may fall into the scope of the copyright owner's right to modify, protect the integrity of the work, the right to disseminate information on the Internet, and the right to adaptation.

In the process of mixing and cutting all kinds of film and television works, upmaster cuts a complete work from long to short, and even merges it with multiple fragments of several works, so that the audience can have different understanding of the main idea expressed in the original work, that is, it conforms to the right to protect the work from distortion and tampering emphasized in the right to protect the integrity of the work. While disrupting the order of the original works, various special effects and advertisements are implanted, or adding explanations with subjective emotions, while forming a new short video, it also violates the rights of the right holder to amend and adapt the original work. Upres will eventually upload their short videos to a specific platform for netizens to browse and watch, which also coincides with the right to provide the public in a wired or wireless way expressed by the right of information network dissemination, so that the public can obtain the works at the time and place of their choice.

Can it constitute fair use?

"Fair use" is the most important defense against copyright infringement. If it constitutes a situation clearly stipulated in Article 24 of the Copyright Law, then even if the act controlled by the Copyright Law is carried out without authorization, it does not constitute copyright infringement. So mixed cut short video can constitute a reasonable use?

There are two main ways to consider whether the use of a work belongs to the scope of fair use in the world [4]. One is the "three-step test" proposed by the Berne Convention, that is, under special circumstances, it will not harm the normal use of the work and will not harm the legitimate rights and interests of the author. In addition, there is also the American standard of "fair use", which is judged from four angles: the nature and purpose of the use, the nature of the copyrighted work, the proportion of the use in the total content of the copyrighted work, and whether the use has an impact on the market value of the copyrighted work.

As far as the massive amount of mixed short videos that exist on the Internet at this stage is concerned, it is more in line with American standards to judge fair use. Similarly, in judicial practice, the purpose of use, the proportion of citations, whether it is a published work and whether it affects or harms the legitimate interests of copyright owners have also become an important basis for judgment. Obviously, almost all of the materials of these mixed and short videos come from published film and television works, and it can even be said to be complete handling and editing, which is the "condensation" of the original works. In the process of production and release, it is inevitable to infringe the copyright of the original right holder.

Of course, there are also many mixed and short videos that have unique ideas, either by adding unique arrangements, or by simply using the original video and adding film reviews, commentary, etc. The ideas or intentions expressed are not only unrelated to the original works, but even completely different. This extremely special situation really should not be killed with one blow.

What is the living space of "mixed shear?

Short video mixing is a "gift" given to us in this era. Today, which emphasizes the fragmentation of time, the emergence of phenomena such as "watching blockbusters in 3 minutes and watching series in 1 hour" is no exaggeration and accident. Even due to copyright reasons, many films that we cannot obtain resources can also be seen in this way. If one day, these often accompany our laughter suddenly stopped, will not like the Spring Festival Gala without sketches as boring. Is there any way to escape from "death" that can be legally "cut" in compliance?

1. Strengthen the original

The copyright law, which has just come into effect on June 1, 2021, clearly changes the expression of "film works and works created by similar methods of film production" to "audio-visual works". Before the implementation of the new law, there were limited cases of short video protection in China, and only in individual cases, short video was protected as "works created by a method similar to film production", that is, "electric works. Short videos have been formally included in the clear protection scope of the Copyright Law. Those secondary works that not only rely on existing resources to mechanically splice, but are full of new ideas in plot, pictures, materials and characters and express original spirit are worthy of publicity and promotion in this era.

2. Obtaking authorization

After all, the phenomenon of mixing short videos is "moving other people's cheese". The original intention of the platforms of the Joint Statement may not be to ban "mixing short videos", but to crack down on unauthorized phenomena. Short video operators do not spend too much manpower, material resources, time and energy. Simple editing integrates the materials. They also have millions or even tens of millions of audiences. Everyone only spends a few minutes browsing and watching. Video resources are realized at the speed of light and huge profits are obtained. Short video platforms and individual accounts can all get a share of the action. However, it has virtually harmed the interests of film owners, copyright owners, investors and more people behind it. In particular, some works have diverted the traffic of long video platforms due to malicious editing and advanced spoilers, resulting in damage to the interests of copyright owners. It is imperative to protect rights. Therefore, the establishment of an open and transparent licensing mechanism may be a reasonable path in the future.

3. Distribution of benefits

The more worthy issue behind obtaining authorization is the sharing of benefits. Short videos have become a part of people's hearts and embedded in life. Cooperation with the platform with the help of short videos will be a mutually beneficial and win-win way of development. The Joint statement only expresses the determination to prohibit video cutting and crack down on infringement, and prohibit unauthorized illegal acts, but the object, scope and conditions of reasonable authorization are not clearly expressed. This also implies a benefit-sharing idea, a reasonable, fair, long-term effective benefit-sharing model must also be based on different authorized objects, different scope of authorization and different authorization conditions.

Conclusion

For the phenomenon of short video mixing, from a legal point of view, the protection of copyright is emphasized and strengthened, but from the perspective of industry development, film and television creation and economic interests, the benign development of monopoly is excluded, and the pursuit of fair benefit distribution is the eternal movement of the wheel. basis. At the end of the day, let's imagine that if the legal use requires the authorization of the copyright owner, and the copyright owner has a pre-examination requirement for the ideas or themes expressed in the mixed cut works, then perhaps in the future, the mixed complaints of the up owners will gradually disappear and become a publicity tool for the copyright owner. This is what we do not want to see, and it should not appear in this era. The development of entertainment should be legal and free and open.