The newly revised Copyright Law that comes into effect on 1 June 2021 covers a wide range of topics. In particular, the revised Copyright Law changed “films and works created in a manner similar to that of film-making” in Item (6) of Article 3 of the original Copyright Law to “audiovisual works”. Are such works equivalent to films and TV dramas? How should we determine the connotation and extension of audiovisual works? What is the positive significance of the provision of audiovisual works in the newly revised Copyright Law?
Senior consultant
Gaowo Law Firm
The member states of WIPO (World Intellectual Property Organisation) signed the Treaty on the International Registration of Audiovisual Works in Geneva in April 1989. The treaty defines audiovisual works as any work that is composed of a series of interrelated fixed images, which can be seen with or without accompanying sound and can be heard with accompanying sound.
More than 30 years later, the revised Copyright Law replaces “films and works created in a manner similar to that of film-making” with “audiovisual works” as one of the types of works to be protected.
The law’s recognition of audiovisual works as a type of work indicates that the law no longer requires works to be mechanically “stably fixed” on a tangible carrier. As long as a work can be disseminated, seen and heard, it meets the legal provisions of fixed elements. From the perspective of judicial practice, with the rapid development of work carrying and dissemination technology, “films and works created in a manner similar to that of film-making” as provided in the original Copyright Law can no longer cover all forms of audiovisual works.
If the law continued to require creative achievements other than “films and film-like works” to be “created in a manner similar to that of film-making”, it would make it difficult to provide legal protection for some works.
From the technical level, traditional “shooting” methods are no longer used in the production of many audiovisual works. For example, some animated videos can be created directly on computers. If we continued to define works based on the requirement of “creation in a manner similar to that of film-making”, it would create a gap in legal protection.
Continued use of the classification of “films and film-like works” would lead to difficulty in determining the nature of live broadcast, online game images and other related videos and images. Some results of artistic design, such as musical fountains, light shows and firework displays, cannot be included in the protection of works under the Copyright Law. Some new types of audiovisual products created with the internet, digital technology and forms and means of intangible media are also difficult to be included in the original scope of protection of “films and film-like works”.
The regulation of the types of audiovisual works will bring more creative “achievements” into the scope of copyright protection. Does it mean in this sense that “pan-works” will be formed in the field of video performance based on the classification of “films and film-like works”? This is one of the challenges of applying the new Copyright Law.
Audiovisual works, as the basis of work types, originate from the emergence of micro-duration, micro-production, micro-platform, open and interactive audio-visual materials, as well as the enthusiasm of the public to participate in the creation of audiovisual clips and the widespread use of listening and watching devices such as PCs, mobile phones and Internet TV.
However, if any “carrier” that consists of a fixed image and can be seen with or without accompanying sound is an audiovisual work, is it still necessary to determine the originality of the work? Will pan-works cause more judicial conflicts and contradictions?
It is necessary to set a “threshold” for audiovisual works. That is, audiovisual works should be the result of people’s creation and cannot be separated from the definition and characteristics of works.
The “films and film-like works” provided in the Copyright Law before the revision set higher requirements for the originality of the works. For example, films and film-like works shall have a screenplay, including a plot, relationships between characters, music, songs, performances, etc. They are usually jointly completed by a creative collective with the director as the core. Therefore, the criteria for judging whether such works are original are relatively clear. Protection is also relatively easy in case of infringement.
However, the extension of “audiovisual works” covers a wider range of protection objects. These works do not rely on collective creation, nor do they necessarily have a clear plot. Even the content of a snapshot may become the object of legal protection. Therefore, we need to pay more attention to the determination of the protectability of “audiovisual works”.
The author believes that the determination of the types of “audiovisual works” will certainly expand the scope of protection. However, in judicial practice, when determining whether the object of dispute belongs to “audiovisual works”, we should still adhere to several elements for the recognition of works: that is, whether the work is created independently by the author, whether it has the attributes of being reproducible and transmissible, whether it has a certain theme and a unique way of expression, etc., in order to avoid identifying the audiovisual fragments without the above elements as works, thus leading to “pan-works”.
At the same time, it should be noted that although “films and film-like works” are replaced by “audiovisual works” in terms of category, these kinds of work are not the same as or equivalent to all audiovisual works. We should pay special attention to the protection of audiovisual works with strong originality.
Chen Jianmin is a senior consultant at Gaowo Law Firm. She can be contacted on +86 138 0121 0522, or by email at jianminchen@gaowoip.com
