短视频版权保护的困境与出路

Abstract

As a product of digital network environment, short video has property attribute, which makes it have reasonable basis protected by copyright law. To explore the legal basis of short video protected by copyright law is actually to explore whether it can be protected as a work. This issue is the focus of copyright infringement cases of short video, and the premise of infringement determination. Infringement only happens when short video is regarded as a work. The key to determine whether short video is a work is to determine its originality. There has been a dispute over the criterion of originality identification in Chinese academic circles. At present, the general principle of originality identification in China’s judicial practice is “independent creation plus intellectual creation”. Since short video varies in contents and forms of expression, special standards of originality identification should be adopted, which means that the creativity should be determined to different degrees under the premise of independent creation. Therefore, constructing a criterion of creativity identification combining both general and specific principles offers scientific protection for short video copyright. As for whether short video works can be reasonably used, China preferred to adopt a combination method of “three-step test” and “four-element standard”, among which “four-element standard” is majorly used and supplemented by “three-step test”. “Three-step test” is stipulated in Article 21 of the “Implementation Regulations of the Copyright Law” of China, which has the following statements, being restricted to special cases; not affecting normal use of the work; not harming the interests of the copyright owners in the process of use. “Four-element standard” is stipulated in the US Copyright Act, which stands for the purpose and nature of use, the nature of the work to be used, the quantity and quality of the part used compared to the whole work used, the effect of use on the potential market or value of copyrighted works. Since both of them have their own advantages and limitations, in order to provide more comprehensive protection for short video works, this paper proposed to identify the standard of short video’s fair use by combining these two methods. In addition, in terms of protection methods, short video platform should take the following measures, making fair use of the exemption rules, the “safe haven” system; executing duty of reasonable care by using technical thinking and introducing copyright filtering mechanism; following the “Network Short Video Platform Management Specification” issued by China Network Audiovisual Program Service Association; improving copyright awareness of short video creators as well as the quality of works; improving the technical protection measures in terms of legislation.