Factors to consider in short video rights protection

The rapid development of the mobile internet brings opportunities for the spread of fragmented reading and browsing content. According to a report of big data intelligence services provider Quest Mobile, the number of short video users in 2019 has exceeded 820 million.

Short videos usually range in duration from more than 10 seconds to a few minutes, with few exceeding 10 minutes. Most of the creators of short videos usually spend a very short time to express their thoughts and feelings with the help of very simple performance, text, voice, special effects, scenes and other elements after they have creative inspiration. Whether this kind of creation, with particularity in form and content, constitutes a work in the sense of Copyright Law, and what kind of protection it should receive, have been controversial since their inception.

It is generally believed that a short video integrates various forms of artistic expression such as lines, music, dance, visual effects, etc., and that as long as the expression of a short video has novelty in content, and can be distinguished from other short videos or other works, and forms the author’s personalized expression, it has the basic elements that constitute works in the sense of Copyright Law.

At the same time, with the help of mobile communication tools and short video platforms, short videos can be stored, copied and even watched at the time and place selected by individuals, which further equips short videos with complete elements of works.

In practice, doubts about whether short videos constitute works mainly come from two aspects. First, some videos with too short a duration can express relatively limited content, so there is doubt as to whether it is sufficient to consider such a video as the expression of ideas or emotions, imparting of knowledge, explaining of truth, etc., or whether it is just a record.

Second, a considerable number of short videos rely on existing works or fragments of works, and may be processing or recreating existing works. For example, the creators perform the existing works repeatedly for the purpose of “honouring” the existing works or entertaining themselves. Although this kind of short videos is of certain appreciation value, there is a big controversy over whether it is of “originality”, and especially whether it has a high degree of “creativity”. As to whether the short videos can be protected as works, the courts in mainland China have given some judgment criteria in certain cases.

The “I want to tell you” case in Beijing Internet Court, is widely regarded as the first case involving short video copyright. The short video involved in the case was only 13 seconds in duration and the defendant also explicitly raised the defence that the video was not a work.

When analyzing the “creativity” of short videos, the court did not think that the duration of videos was necessarily related to the level of creativity, nor did it put forward too high requirements for the “creativity” of short videos, but advocated to strengthen the protection of short videos from the perspective of promoting prosperity and progress of culture, and orderly development of the industry. In addition, according to the judgment of the case, whether the short video has a positive and healthy value orientation will also be considered when the court makes its decision.

The People’s Court of Haidian District, Beijing also expressed similar views in the “PPAP” case and the “What an IQ” case. The court held that short duration did not necessarily mean limited expression form and content, nor did it affect the “originality” of the video. On the contrary, short videos were more difficult to create, and more likely to be “creative” if they were to completely express the creator’s thoughts and feelings in a short time. In the two cases, two short videos with a duration of 36 seconds and 18 seconds, respectively, were finally held to constitute works.

In addition, in the “PPAP” case, the defendant claimed that the video involved in the case was an imitation of the original music video, and that it was not “original”. However, the court held that the dance movements of the video involved in the case were faster than that of the original music video, which produced more humorous expressive force in co-ordination with music, and the special effects used in combination made the video involved in the case richer and more localized than that of the original music video. Thus, the court did not accept the defendant’s defence. The author believes that this reflects the judicial orientation of actively protecting short videos and their creators.

It should be noted that the short video itself is not a specific concept or type of work under the Copyright Law. The author believes that many short videos with wide scale rely on a complete creation and operation team from content planning, preliminary preparation, shooting, editing and publishing to transformation of fans and marketability, and can constitute works created by methods similar to film production.

For some short videos of speeches, the recorded content may be classified into oral works, while for short videos of improvisational continual posture, the content may be classified into dance works. In practice, it is possible to determine what kind of work a short video constitutes according to its specific content. However, no matter what kind of works they are, there should be no obstacle for these short videos to be protected by the Copyright Law.

Of course, if the content of a certain kind of short video does not belong to the field of literature, art or science, or the “creativity” does not reach a certain degree, it is difficult for it to be recognized as a work for protection. But not constituting a work does not mean that such a short video cannot be protected by the Copyright Law. For example, some short videos are produced through the mechanical recording of performances or other images and films, which themselves may constitute video products.

In the traditional sense, neighboring right is relatively narrow in the scope, and its exercise is also restricted by the copyright owner. But in the era of nationwide short videos, the content of some video products is not a reproduction of other works. Thus the video producers have more independent and complete rights. Therefore, the creators of short videos should not give up their rights easily because of the subject or “creativity” of the videos.

Zhang Chenyang and Yan Hang are partners at Yuanhe Partners