http://ipkitten.blogspot.com/2020/08/beijing-ip-court-lets-talk-about-short.html
On 19 August 2020, the Beijing Intellectual Property Court held a press conference releasing The Notice on the Trial of Short Video Copyright Cases handled by Beijing IP Court (The Notice). It provides some summative hints that could be useful to many.
Outline of the Notice*
(The content below regarding the Outline is mainly a translation from the original Notice. This Kat’s supplementary comments are inserted in blue bold print).
Since its establishment in 2014, the Beijing IP Court has taken 45 short video-related cases. All of them are trials at second instance, as prescribed by the jurisdiction.
1. Where do short videos stand in copyright law?
Short videos, when eligible for copyright protection, are taken as ‘cinematographic works and works created in a way similar to cinematography’ under Article 3(6) of the Copyright Law of China (2010 Amendment).
A detailed definition of such works is provided by Article 4(11) of the Regulation for the Implementation of the Copyright Law of China (2013 Revision):
‘Cinematographic works and works created by a process analogous to cinematography’ means works which are recorded on some material, consisting of a series of images, with or without accompanying sound, and which can be projected with the aid of suitable devices or communicated by other means;
The Notice states that a short video, insofar as it is an expression possessing originality and satisfying the definition (above), is a protectable work under copyright law. [This is a simplified version, which omits mentioning some other requirements, e.g. the works at issue must not violate the Constitution or laws or infringe upon the public interest. Rather, it has taken them as the default settings. In this Kat’s view, this simplified expression shows a supportive attitude towards the development of the short video industry, which corresponds to the low threshold of protection that the majority of jurisdictions have adopted]
2. Main types of short video-related infringement
– Disseminating short videos made by others on the Internet;
– Utilising the works of others to make short videos (through performances, etc.);
– Reassembling videos or works completed by others into short videos and then placing them oo the Internet for dissemination.
3. Subject of the infringement and its liability
In general, there are three main active subjects. Two are easily understandable: the short video maker and the short video platform. Then there are the streamers: a new profession born in response to the prosperity of network broadcasting platforms. According to the feedback in practice, The Notice defines streamers as:
‘A person who is responsible for participating in a series of planning, editing, performing, and audience interaction in an Internet program or event, and the person who is responsible for hosting the work.’
When a short video infringes another’s copyright, it can be complicated to determine the liability between the streamer and the short video platform. That’s when differences are determined by the nature of the platform operator and its relationship to the streamer:
– If the platform and the streamer involve a division of labour and cooperation, it constitutes a joint infringement, and both parties shall bear joint liability.
– If the platform serves as a technical service provider, it is then necessary to check whether the rightholder has sent a valid notice to the platform.
4. Fair use of short video copyrights
The Notice points out that the Copyright Law does not only undertake the mission of copyright protection, but also has the responsibility of promoting the development and prosperity of culture and science. Thus, Article 22 of the Copyright Law of China stipulates 12 specific exceptions of fair use.
Meanwhile, fair use has boundaries, which, in principle, shall not impair the normal exploitation of the work concerned, nor unreasonably prejudice the legitimate interests of the copyright owner. [As stipulated by Article 21 of the Regulation for the Implementation of the Copyright Law of China (2013 Revision)]
5. Here are some tips
After a systematic review of short video copyright cases, the Beijing IP Court found some common problems, in response to which the following tips were presented:
First of all, when creating short videos, one should pay attention to adding copyright marking and statement on the works, which is very important for subsequent rights protection.
Secondly, when the short video is authorised externally, it is also necessary to keep the evidence of authorisation. Otherwise, it will be difficult to prove who published first when a dispute arises.
Thirdly, since short video users and the platform operators are often not the same person. In practice, rightholders often issue rights notices to platforms operators, requesting them to cease broadcasting the related videos. At this time, it is necessary to preserve evidence of the issuing of the notice and the receiving of it. That is important for determining whether the platform should be liable.
Fourthly, attention should be paid to the preservation of specific evidence regarding the extent of the damage caused by the infringement, such as the duration of the infringement, the scope of the infringement and the profit made by the defendant – such evidence is an important factor that affects the amount of compensation.
Fifthly, the production of short videos should respect the intellectual property rights of others and not use others’ works at will.
Sixthly, when playing short videos of others, the permission of the copyright owner of the short videos should be obtained.
Comments
The Notice seems rather plain, doesn’t it?
The opening paragraph of the Notice reads as follows: ‘The production and dissemination of short videos have not only played an active role in promoting cultural dissemination, but also brought new challenges to the protection of copyright.’
The ‘new challenges’, in this Kat’s view, do not seem to refer to the fundamental impact on the copyright theory or system. Even high-profile cases, such as the ‘Douyin 13-second short video case’ (see the IPKat report on the case here), can hardly be taken as ‘new challenges’ from a legal point of view. The existing copyright theory or system has no substantial obstacles or blind spots in dealing specifically with the short video infringement cases.
The real challenges lie at the operational level. On the one hand, copyright enforcement is on the rise in China; see, for example, the national Sword Net (anti-infringements) action (see a previous IPKat blog post about the action here). On the other hand, enforcement still faces great difficulties. First, the infringements of short videos have some tricky features, such as their large quantity, scattered distribution, lack of a quick authorisation channel (i.e. for music) and a fleeting popular lifecycle (which leads to the imbalance between litigation costs and the remedies). In addition, on the platform side, the abuse of or the sole dependence on the safe harbour principle has also contributed to rampant infringements.
According to the 2019 China online copyright monitoring report from the Copyright Society of China (see a previous IPKat post introducing the platform here), there were 7.54 million new short video infringement links spotted in 2019, and despite the overall success rate of rights protection exceeding 95%, the number of infringing links was considered notably high in the first place. To ensure the sustainable healthy eco-system for copyrights, the co-operation of multiple parties would be necessary.
In view of the above, for copyright protection, precaution in advance could be more noteworthy and efficient than merely relying on judicial remedies afterwards. That, together with the aforementioned six explicit tips, seems to be the key message the Beijing IP Court meant to deliver.
* The Chinese-English translation of the Notice in this blog post is provided by this Kat; the translations of the legal provisions adopted are from pkulaw.com.
Photo: Shelley Tian’s kitten.
Photo: Shelley Tian’s kitten.
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