On the evening of December 15, the China Online Audiovisual Association issued the "Detailed Rules for the Standards for the Review of Online Short Video Content (2021)" (hereinafter referred to as the "Detailed Rules"), which requires that short video programs and their titles, names, comments, bullet screens, memes, etc., must not contain 21 points and 100 small points of content in their language, performances, subtitles, pictures, music, and sound effects that endanger the socialist system with Chinese characteristics, split the country, damage the national image, divulge state secrets, damage the image of revolutionary leaders and heroes and martyrs, and undermine social stability Among them, articles 92 and 93 of the provisions on the cutting and adaptation of film and television dramas and films have aroused industry attention.
Specifically, article 92 stipulates that it is forbidden to play in violation of regulations clips of films, television dramas, online film and television dramas that have not yet been approved for broadcast by the State, all kinds of overseas audio-visual programs and clips that have not yet been approved for introduction, or audio-visual programs and fragments that have been expressly prohibited by the State; Article 93 stipulates that all kinds of audio-visual programs and fragments such as films, television dramas, and online film and television dramas may not be cut or adapted without authorization.
A brokerage analyst told Shell Financial Reporter that this time it is mainly aimed at the editing, handling and compilation of movies, TV series and variety shows, because many users will watch these short videos instead of watching the original films, and it is estimated that this part of the content accounts for about 10% of the total content of the short video platform.
Tang Xin, an independent Internet analyst, told Shell Financial Reporter that if the copyright issue is strictly implemented, it will be a devastating blow to the second creation of short videos.
Shell financial reporters asked Douyin, Kuaishou, B station and Weishi about these two provisions, as of press time, the platform side has not responded.
Experts: Cutting and adapting affect the income of film and television, and there are unintroded works to circumvent supervision
There are a total of 100 articles in the "Standard Rules for The Review of Online Short Video Content", but Articles 92 and 93 have triggered the biggest response. On the short video platform, there are many accounts that mainly focus on film and television drama editing content, and the number of fans is huge. Some netizens asked: Does this mean that there will be no ghost animals, movie commentary, and mixed cuts in the future?
In fact, in April, more than 70 units such as iQiyi, Tencent Video, Noonday Sunshine, and Great Aim Film and Television issued a joint statement. The statement said that a large number of public account production operators, without the authorization of the right holder, arbitrarily edited, cut, transported, disseminated, etc. film and television works, causing a series of piracy infringement problems and disputes, seriously infringing on the legitimate rights and interests of film and television rights holders, and even damaging the integrity of film and television works, distorting the original intention of the content of film and television works, and affecting the long-term development of the film and television industry. The joint statement pointed out that centralized and necessary legal rights protection actions will be launched against the production and operators of public accounts that currently appear on the Internet for unauthorized editing, cutting, handling, and dissemination of film and television works.
According to media reports, the 2020 China Online Short Video Copyright Monitoring Report shows that from January 2019 to October 2020, the center monitored more than 100,000 original short video authors, the National Copyright Administration's early warning list and fragments and short videos of key film and television variety works, and monitored a total of 30.0952 million suspected infringing short videos, involving 2.72 trillion hits.
Tang Xin told Shell Financial Reporter that the China Online Audiovisual Program Service Association is the only state-level industry organization (first-level association) in the field of online audio-visual, a non-law enforcement agency, and has no law enforcement capabilities. This provision is an initiative issued by the Association, although it is not mandatory, but it may represent the official attitude in the future.
On the evening of December 15, the official website of the State Administration of Radio and Television also released the "Detailed Rules for the Standard Review of Online Short Video Content (2021)".
In his view, cutting, adaptation, etc. have indeed seriously affected the traditional revenue channels of a number of film and television works, such as the box office, and some are film and television works that have not been introduced by the state, bypassing the review link. In addition, these problems are now more widespread, and there are more complaints.
There are also judicial circles who study content copyright and told Shell Financial Reporter that for the creation of short videos using film and television copyright, whether it is possible to refer to the scope of judicial fair use, try not to "beat the creator to death". At the same time, short videos also have a publicity effect on film and television works, and whether long and short videos can be further explored from the perspective of publicity cooperation and copyright sharing in the future.
A management person of the live broadcast and short video platform told shell financial reporters that there were relevant regulations in March 2018, when it mainly affected ghost animals and secondary creation content, this time it was a further emphasis on film and television copyright. This kind of short video about movies, many platforms are doing, very pull user time, but also the focus of each platform, but are done in silence, not publicly. He also said that in the gradual development of the platform, it also respects copyright, and the content that infringes copyright is also managed.
How to resolve short video copyright disputes? "Safe haven" or "red flag" law
In the end, how to regulate the copyright of short videos in a reasonable, legal and efficient manner is also controversial in the academic community.
Tao Qian, associate professor of the Master of Laws School of China University of Political Science and Law and director of the Intellectual Property Innovation and Competition Research Center, said that for the issue of short video copyright, determining the responsibility of the platform is complicated, because in each case, when looking at whether the platform will "pay" for user behavior, there is a strong case-based determination of the duty of care of the platform, and the degree of the duty of care is very uncertain. It is the diversity of user behavior and the ambiguity of the nature of infringement that make the platform uncertain in judging fault.
At present, the more popular sayings are the safe harbor principle and the red flag principle. The "safe harbor" principle means that in the event of a copyright infringement case, when the ISP (Internet Service Provider) only provides space services and does not produce web content, if the ISP is informed of the infringement, it has the obligation to delete it, otherwise it is considered to be infringing. If the infringing content is neither stored on iss the ISP's servers nor is it told which content should be removed, the ISP is not liable for infringement.
The "red flag" principle means that if the fact of infringing the right of dissemination of information networks is obvious, just like the red flag flying, the ISP cannot pretend to be invisible, or shirk responsibility on the grounds of not knowing the infringement, if in such a case, the necessary measures such as deletion, blocking, disconnection and so on are not carried out, although the right holder has not issued a notice, it should also be determined that the network service provider knows of the infringement of a third party.
So, in the end, should the "red flag" principle and the "safe haven" principle be applied? "UGC, which relies on the Internet to allow the whole people to participate in creation, can provide ordinary netizens with the opportunity to show their creativity, but it will also cause many problems, including copyright infringement." Zhang Li, a professor at the School of Civil and Commercial Law of Southwest University of Political Science and Law, said in an interview that users upload film and television works through secret shooting, scan and upload books without permission, edit and use part of film and television works without permission, or copy other people's works to form part or all of their own works, etc., these acts may constitute infringement, and sometimes the platform will also provoke lawsuits and become defendants, which is the "red flag" principle applied.
"There is no doubt that users who upload infringing content are responsible, and if the platform fails to fulfill its duty of care, it should also bear corresponding responsibilities." Qiu Baochang, president of the E-commerce Rule of Law Research Association of the Beijing Municipal Law Society, stressed that when the right holder claims rights to the platform, the platform should promptly disconnect and block the relevant links, and if it still fails to act after receiving the notice, the platform should bear joint and several liability for the expansion of the infringing part, and if malicious collusion is liable for joint infringement.
Xu Shengjian, dean of the Master of Laws School of China University of Political Science and Law and director of the Internet Governance Research Center, said that the crackdown on short video infringement should follow the principle of "safe harbor", because it defines the boundaries of the dissemination of various knowledge content, and also takes into account the openness, sharing and equality of the Internet. "The number of video uploads per day by hundreds of millions of short video users in China is very huge, even if a large number of prior reviews are carried out, the investment of manpower, financial resources and time behind it is unimaginable." Suppose that most of the work and focus of the review of short videos is placed in advance, there is a review process in advance, the review time will be greatly extended, the frequency of updates will be reduced, and it is not conducive to improving the customer experience, which will lead to a decrease in users and further affect the operation of the platform. Xu Jianjian said.
Standardizing film and television cutting strips, handling, speed watching, etc. has a long history
In fact, the supervision of cutting and changing film and television has a long history.
On March 22, 2018, the State Administration of Press, Publication, Radio, Film and Television issued the Notice on Further Regulating the Order of The Dissemination of Online Audiovisual Programs. The circular requires that the illegal capture, cutting, and adaptation of audio-visual programs be resolutely prohibited, and that similar re-edited programs, including those uploaded by netizens, be strictly managed, and that no channels of dissemination be provided for edited and adapted audio-visual programs with problems with orientation, copyright, or content. Shell financial reporter found that cutting, adapting and secondary creation of videos is one of the basic methods for short videos and medium video film and television explanations.
In April this year, more than 70 film and television media units and more than 500 artists spoke out, saying that there was infringement in the editing and secondary creation of online short videos. The joint proposal is a more specific and instructive proposal after the joint statement issued by a number of film and television media units on April 9. The joint proposal puts forward specific suggestions and guidelines for rights protection actions in view of the current phenomenon of online short video infringement, and calls for the clean-up of unauthorized cutting, handling, speed-up and compilation of film and television works.
On April 25, at a press conference held by the Information Office of the State Council, Yu Cike, director of the Copyright Administration Bureau of the Central Propaganda Department, responded to the infringement of short videos. He said that with the rapid development of digital technology and mobile Internet, China's network short video has also developed rapidly. At the same time, the problem of short video infringement and piracy is more serious, which has aroused social concern, and the National Copyright Administration also attaches great importance to it.
Yu Cike said that this year, the National Copyright Administration will actively respond to the voices of the majority of rights holders in accordance with the deployment of the central government to comprehensively strengthen the protection of intellectual property rights, support and protect the legitimate demands of the majority of rights holders: First, continue to increase the crackdown on infringement in the field of short videos, and resolutely rectify the infringement of short video platforms and self-media and public account production operators who copy, perform and disseminate other people's films, television, music and other works without authorization. The second is to promote short video platforms, self-media, and public account operators to fully perform their main responsibilities, effectively strengthen the construction of the copyright system, improve the copyright complaint handling mechanism, and effectively perform the obligation to report illegal and criminal clues and cooperate with investigations. The third is to encourage and support collective management organizations for film copyright to strengthen their own construction, carry out collective management of copyright in film works in accordance with law, and give play to the role of the link between safeguarding the legitimate rights of right holders and facilitating the lawful use of users.
Beijing News shell financial reporter Bai Jinlei Editor Xu Chao Proofreader Liu Baoqing