iQiyi, one of China’s mainstream video streaming services equivalent to Netflix, has sued Douyin, China’s version of TikTok known for its 15-second short videos, for infringements before many courts across the country in a campaign to safeguard its own rights.
iQiyi’s main business model is providing online video-on-demand services while charging advertising fees and VIP membership fees. The streaming business invested heavily in acquiring copyrights in movies and TV dramas.
Douyin, as a professional short-video platform that knew, or should have known, that many of its short videos infringed iQiyi’s rights to network dissemination of information, provided its users with services enabling online broadcasting and downloading of infringing short videos.
Douyin also edited, sorted and recommended the infringing videos by setting ranking lists or topics and actively pushing them to users. As a result, the infringing videos were distributed rapidly and broadly across the Douyin platform, diverting viewers from the iQiyi platform and seriously impairing the streamer’s commercial interests.
Given the sheer weight of numbers, iQiyi chose not to pursue the direct infringement liability of uploading users in its legal campaign against Douyin, a typical provider of user-generated content (UGC).
Instead, examining the presentation form of infringing short videos, iQiyi assessed whether Douyin had edited, sorted or recommended infringing videos while it knew, or should have known, the infringing acts, and pursued the platform’s contributory liability.
After a series of legal actions, a number of court judgments were awarded in favour of iQiyi, with more than RMB10 million (USD1.3 million) in damages. The legal action was included in the annual classic cases of multiple local courts.
Eventually, iQiyi and Douyin called a truce and reached a strategic co-operation agreement on 19 July 2022.
Crux of disputes
Numerous short-video content provided and distributed on short-video platforms such as Douyin, Kuaishou, Xigua Video, Bilibili and Duoduo TV are clips of audio-visual works such as movies, dramas and shows.
These take a heavy toll on the copyrighted video-streaming platforms. But short video platforms have argued that they only bear the “notify-delete” obligation under China’s Regulations on Protection of the Information Network Dissemination Right, and are not liable for infringement as long as infringing works uploaded by users are removed promptly from the platform.
To attract user traffic, however, these short-video platforms took various steps to actively edit, sort and recommend infringing videos, which is now ruled to constitute contributory liability.
Take iQiyi v Bytedance, for example, involving the information network dissemination right of the TV drama Story of Yanxi Palace. This was China’s first infringement case regarding a short-video platform’s recommendation algorithms.
The judgment provides explicit and meaningful guidance on the duty of care of online service providers, and duty of care against infringing algorithm-based recommendations.
The court held that short-video platforms provide users with information storage space services and information stream recommendation services. The widespread infringing of short videos is a combined result of users’ infringing acts and those two platform services.
In this way, short-video platforms have gained more user traffic and a sharper competitive edge, so they should have a higher duty of care against users’ infringing acts.
According to the China Internet Audio-Visual Development Research Report 2023, the number of short-video users in China reached 1.01 billion as of December 2022, an increase of 77.7 million or 8.3% year-on-year, and accounting for 94.8% of internet users.
Clearly, the short-video industry has huge commercial potential.
Amid this development of new media platforms, disputes have arisen between short-form and long-form video streaming platforms over whether the editing, segmentation, reposting and dissemination of movie and television works constitute infringement.
Unlike the business model of long-video platforms, short-video platforms use algorithm technology and the “manual + technology-assisted” recommendation mode to strengthen personalised feeds, in a bid to retain user traffic and maintain user stickiness. This user-retaining approach has intensified the battle between short and long-video platforms.
In examining whether the short-video platform can be exempted from liability under the “safe harbour” rule, the focus should be placed on whether the platform knows, or should have known, the platform users infringed on the information network dissemination rights of other platforms.
The courts have now found that the short-video platform’s practice of recommending infringing videos – by sorting them, creating special topics and establishing related content modules – constitutes a recommendation act, as prescribed in article 10 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving Infringement of the Right of Dissemination of Information Networks.
Therefore, the courts ordered that the operator of the short-video platform should assume contributory liability on the grounds that the operator did so knowingly.
Video-streaming platforms should uphold the philosophy of intellectual property protection. Any platform that uses algorithm-based recommendation technology should bear an obligation to examine whether the recommended videos are infringing works and, in particular, assume extra duty of care for popular film and television works.
Any infringing video, long or short, should be prohibited by law. The battle between long and short videos has clarified the extent to which short-video platforms should undertake the pre-censorship obligation for short videos related to film and television works.
It also defines what acts of short-video platforms will conclude that the platform knows, or should have known, the infringement. This regulates the short-video industry and protects the legitimate rights and interests of copyrighted video platforms.
Sun Liqing is a senior partner at Ronly & Tenwen Partners. He can be contacted at +86 133 0197 6983 or by e-mail at email@example.com.
Qiu Zhengtan is a partner at Ronly & Tenwen Partners. He can be contacted at +86 188 1783 6866 or by e-mail at firstname.lastname@example.org.