Who’s the Murderer was the first Chinese celebrity whodunit variety show launched by Mango TV, in 2016, and has run for eight straight seasons. Since the seventh season, it has been joined by Who’s the Murderer Collegiate Bench Section, jointly launched with the Supreme People’s Court.
This second offering popularises knowledge of the law to the masses by closely following hot button issues in society. Taking Who’s the Murderer as an example, the author discusses the experiences and difficulties of Mango TV, and the Chinese internet video enterprises of which it is representative, in the operation and protection of intellectual property (IP) rights from the perspective of the creation, development and protection of IP.
The formation of a variety IP first requires a good programme title. Such a programme title should be distinctive, suitable for registration as a trademark, and not conflict with or be similar to prior rights.
Accordingly, building the trademark portfolio should start from the beginning, when the programme is being planned. Once the programme is being produced and broadcast, its content elements should be assessed on an ongoing basis. The elements that have commercial development value should be preferentially added to the trademark portfolio.
Taking Who’s the Murderer as an example, in addition to registering such programme titles as “明星大侦探” (Chinese characters for Who’s the Murderer), “明侦” (an abbreviated form of “明星大侦探”), “大侦探” (another abbreviated form of “明星大侦探”), etc., and the main logo as trademarks, the legal department of Mango TV registered the names of scenes and characters that have distinctive labels, such as “NZND” and “顶牛天团”, which have been loved by the audience since the broadcasting of the programme.
To maintain the trademarks’ brand value and guard against brand dilution, the enterprise additionally needs to monitor in real time and promptly crack down on trademark infringement and unfair competition committed by way of wilful free-riding and piggybacking on the show’s popularity. It employs both non-litigation and litigation means to achieve this aim.
VALUE OF DERIVATIVE PRODUCTS
The derivative products development of IP is an important means of maintaining value.
Taking the series of IPs for Who’s the Murderer as an example, in terms of derivative works, Who’s the Murderer spinoffs, Famous Detective Academy and NZND DingNiu Concert, are quite popular with viewers. Famous Detective Academy rivals Who’s the Murderer as a high-quality S-class murder mystery programme.
In terms of the derivative industry chain, the recreation of scenes from the Who’s the Murderer programme in M-CITY, the show’s official murder mystery games flagship store in Changsha, with its high-quality presentation that sets it apart from other scripted entertainment stores, has attracted a large number of Who’s the Murderer fans to the store, setting a benchmark for the scripted entertainment industry in China.
In terms of derivative products, the apparel brand “南波万/No.1” is derived from Famous Detective Academy and has also become a bestselling product on Mango TV’s e-commerce platform, shopmang.com.
PROTECTING SHORT & LONG VIDEOS
Popular variety shows have always been the hardest hit by infringement. Taking Who’s the Murderer’s as an example, through active monitoring we have uncovered about 230,000 infringement leads. Infringement in short videos and e-commerce channels are the most serious.
At present, we have gathered evidence of tens of thousands of infringing links and instituted a number of legal actions to defend our rights.
For example, in the Mango TV v Mango Detective Studio case, instituted in respect of unfair competition against M-CITY, we secured the first pre-trial injunction from the Putuo District People’s Court of Shanghai; and with respect to a certain website’s long-term, repeated infringements, we initiated court proceedings to defend our rights with the subject matter of the action totalling RMB5 million (USD721,000). The case is pending at first instance.
However, long influenced by the “safe harbour principle”, there has been a proliferation of infringements on short video platforms by user-generated content (UGC). Coupled with the difficulty in gathering evidence, the length of time required for litigation, low damage amounts and inaction or, in the worst cases, behind the scenes tacit approval and encouragement by the platforms, long-form video platforms have not been able to find effective ways to curb infringement.
In the past two years, there has been a loosening in the “safe harbour principle” and there have been occasional breakthroughs in the amounts awarded in certain cases. For example, the award of RMB32 million at first instance in the Tencent Video v TikTok case, in which Tencent sued the short video platform for infringing its exclusive streaming right of Mojin: The Worm Valley. Notwithstanding, no uniform and clear criteria have yet taken shape in mainstream judicial practice towards the awarding of damages for such infringements. On the whole, awarded amounts remain on the low side, making it impossible for them to have the effect of curbing infringement.
As a result, there has been a serious conflict between short and long videos in the past few years. In 2021, several major long-form video platforms, together with a large number of film and television companies, twice issued joint statements calling for short videos to “respect originality and protect copyright”, bringing the conflict to public attention.
With the strategic co-operation among IQIYI, Tencent Video and TikTok in the short video sphere, the conflict waged between short and long video platforms over many years seems to have come to a temporary end.
However, the author would argue that this is not an authorisation mechanism that allows win-win co-operation between long and short video platforms to be found; rather it looks more like a unilateral, grudging compromise on the part of the long-form video platforms.
In contrast, outside China, no such fierce conflict seems to have arisen between such platforms as YouTube, Facebook, etc., that have relied on UGC for their growth, and such long-form video platforms as Netflix, Disney+, etc. This is probably attributable to the fact that video platforms like YouTube have established a model of proactive cracking down on piracy and win-win co-operation with copyright holders.
Taking YouTube as an example, its copyright protection mechanism consists mainly of copyrighted content takedown requests and content ID claims.
Based on the copyrighted content takedown request mechanism, if a rights holder finds that his or her work is posted on the platform without authorisation, he or she can submit a content takedown request to the platform, and the platform will remove the content after verifying the proof of rights.
The uploader will receive a copyright warning. After three copyright warnings, an uploader will face such serious consequences as having his or her account and associated channels closed, all videos removed and being unable to create new channels.
Based on the content ID claim mechanism, the platform will analyse the content material uploaded by the rights holder to the content ID database frame by frame and compare it with the video on YouTube. If, after comparison, it is found that the video or audiovisual file uploaded to YouTube is identical or similar, the system will automatically send a content ID copyright notice to the rights holder and the uploader.
Once the copyright notice is sent, the rights holder can see behind the scenes the content, duration, overlap ratio, number of views, etc., of his or her own compared content, and that posted by the uploader. Depending on the actual circumstances, the rights holder can set up copyright claim policies by region and take such measures as banning, revenue sharing (i.e. directly sharing the advertising revenue from the video) or tracking (i.e. tracking the statistics on the viewing of the video in question).
The notice and takedown model in China is somewhat similar to the copyrighted content takedown request mechanism. However, it is the proactive attitude of platforms in defending the interests of rights holders, and the more severe penalty measures, that have a much greater effect in deterring infringement and have had the actual effect of curbing infringement.
Compared to the content takedown request mechanism, the content ID claim is a technologically supported automatic content verification mechanism providing, from another perspective, a more efficient and convenient means for rights holders to protect their own rights. However, this does not mean that Chinese internet video companies can set sail on an always smooth sea for their going global journey.
Taking Mango TV’s international app as an example, piracy remains a serious problem in Southeast Asia, where it has a relatively active audience. In cracking down on pirated content abroad, Chinese internet video companies still face numerous difficult practical issues such as monitoring, limitations on the cross-border adducement of evidence, differences in judicial practices in other countries, and high litigation costs.
With the issuance of IP legislation and protection policies in a short period of time in China, coupled with several years of the “Sword at the Internet Campaign” – launched by Chinese authorities to crackdown on internet infringement and piracy – and continual sanctioning of infringement by the administrative law enforcement authorities, large-scale infringement in China is mainly a thing of the past. Chinese enterprises and Chinese users have essentially reached the industry consensus of “first license, then use”.
Although the issue of short video infringement has not yet been completely resolved and the ongoing global journey of Chinese content still faces challenges, the author is confident that with the continual efforts of rights holders, the judicial authorities will gradually go beyond the existing rules and more severely crack down on and deter infringement by the awarding of punitive damages, and require short video platforms to proactively assume more platform responsibilities so as to create a clear, bright and expansive creative environment in the media and entertainment sector that allows the culture industry to flourish and develop in a healthy manner.
Zou Xuzi is legal director of Mango Excellent Media