Image source @ Visual China
Text | Zinc Finance, author | Wu Chenguang and Gao Heng, Editors | gale
On December 15, 2021, the China Online Audiovisual Program Service 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 clearly stated that it is not allowed to cut or adapt all kinds of audio-visual programs and clips such as movies, TV series, online film and television dramas without authorization.
Two months on, how has the response been?
Zinc Finance found through interviews with a number of Douyin short video clip bloggers that a complete industrial chain has long been formed between the platform, bloggers and fans, and in the face of huge interests, the "Detailed Rules" have become a decoration.
The main monetization methods include: First, the platform cooperates with bloggers, the platform releases tasks, takes the initiative to provide film and television dramas, allows bloggers to cut and create, according to the ranking of page views after release, for the top works, the platform will give bonus support ranging from 1000-5000 yuan; second, bloggers who charge teaching, and bloggers with millions of fans can earn more than one million a month in tuition fees. And fans can also be "teachers" and then charge "believers" after completing their studies; the third is to receive advertising, according to a blogger with more than 5 million fans, its official advertising offer reached 38,000, and the monthly advertising income can reach hundreds of thousands.
Some experts pointed out that the main reason why the "Detailed Rules" have been ignored, in addition to the factors of interest, is that this is a self-regulatory document within the association and does not have the effect of mandatory application at the level of legal application. On the other hand, there is still a dispute over the definition of shearing and secondary creation, and at present, some litigation cases between large manufacturers have not yet been finalized, and there are not many cases that can be referred to. In order to curb the increasingly widespread infringement and suspected infringement, it is also necessary for the relevant state departments to introduce policies to rectify it.
In April last year, the relevant person in charge of the Copyright Administration Bureau of the Central Propaganda Department publicly stated that the National Copyright Administration attaches great importance to the problem of short video infringement and will actively respond to the voices of the majority of rights holders and support and protect the legitimate demands of the majority of rights holders in accordance with the deployment of the central government to comprehensively strengthen the protection of intellectual property rights.
But the reality is that as long as the state has not yet stepped in to rectify, these phenomena will continue to spread. Because the short video platform needs the traffic brought by these bloggers, the bloggers cannot do without the platform, and they will not take the initiative to give up the way to make a profit. As for the "Detailed Rules", hehe.
Most bloggers dismiss it
Taking Douyin as an example, searching for the term "film and television editing" within the platform, there are more than 100 users, and the number of fans of film and television giants ranges from hundreds of thousands to tens of millions, and the total number of likes reaches tens of millions or even hundreds of millions.
Zinc Finance randomly asked several bloggers. Among them, a blogger named Lucky Clip is displayed as the official account of Lucky Star Network Business Company, with more than 9 million fans. Zinc Finance first learned through the WeChat id inquiry provided by Lucky Clip that it can charge for teaching and teach people how to edit film and television dramas. When asked about the promulgation of the Detailed Rules, what will be the impact? Will not pay the money after not letting it do. The blogger was dismissive, responding with "nothing, there is no such thing". Then Zinc Finance asked, for the "Detailed Rules", the platform will not respond? In this regard, the blogger said: "Oh, then you don't have to learn, there are too many things." Zinc Finance was immediately blocked.
Subsequently, Zinc Finance entered the lucky clip vibrato live broadcast room, and continued to ask in the message area: after the introduction of the "Detailed Rules", why are you still teaching? The blogger instantly intensified his tone and asked, "Which person does not have the copyright to edit the work?" While talking, he posted a feishu document called "The Copyright List of the Latest Movies and TV Series". When Zinc Finance asked, "Do you have these copyrights?" The blogger said: "I don't have it, but I can send it, you take care of yourself." ”
Film and television bloggers with 749,000 fans have been waiting overnight to inform Zinc Finance that the short videos edited by bloggers are generally copyrightless because the impact of copyright issues is limited. If you are not at ease, you can make foreign films, and generally no one will complain.
When asked if the Rules had an impact on film and television editing, the blogger said: "We've been doing it and haven't taken that association seriously." The short video platform will not pursue copyright issues, because you are creating traffic for him, and the platform will only remove your video when the copyright party comes to complain. ”
For some bloggers who claim to have copyrights, Yi Yi waited for a very affirmative answer: "That is all a lie, the copyright of a movie is less than 100,000 yuan, how much do you think they can pay?" ”
For copyright issues, the blogger Ah Tian, who has 14.057 million fans, told Zinc Finance that copyright issues can be circumvented by means. "Although the policy is released, it is not certain when it will be implemented, and film and television occupy such a large market as Douyin, how can it be directly kicked off."
During the interview, it was found that not only big fans such as Ah Tian Film and Television Clip and Lucky Clip ignored the "Detailed Rules", but even the Douyin bloggers who only had tens of thousands of fans were the same.
Yichen Film and Television said bluntly to Zinc Finance: China Online Audiovisual Program Service Association is just an association. The short video platform has not yet made an announcement, as long as it is not updated, the solo drama can be. At present, the flow of film and television editing is very large, and with traffic, you can make money and monetize.
Synthesizing the answers of most bloggers, Zinc Finance learned from it that the copyright of many film and television dramas ranges from hundreds of thousands to millions or even tens of millions, and most bloggers cannot afford it. Even if a small number of head bloggers can afford it, they will not pay a huge cost for it. In addition to some bloggers who can edit after obtaining the authorization of the film and television copyright party, many other bloggers rely on some editing and secondary creation methods to avoid infringement risks.
Platform review is useless
At present, major short video platforms have corresponding descriptions of copyright and portability, but the provisions on the review mechanism of uploaded content and the re-dissemination of film and television drama editing, erchuang and other re-dissemination behaviors are much more vague.
In the Douyin Rules Encyclopedia, the relevant description of copyright and handling is reflected as follows: Regarding the copyright of film and television comprehensive audio games, that is, the work is suspected of unauthorized use of other people's intellectual property rights content such as film and television comprehensive audio games, which can easily lead to copyright risks. Regarding porting, that is, the work contains low-cost editing/screen recording/picture carousel of film and television variety show content, the use of stickers/mosaics to obscure the logo of a third-party platform, the explicit expression of the video transferred from others, the superposition of different vibrato watermarks, and the original watermarks that have nothing to do with the author.
Watermelon Video describes the relevant version of the review rules as follows: Under normal circumstances, only the copyright owner can decide whether others have the right to use their works. Theoretically, as a self-media, once other people's works are used as materials without authorization, and do not constitute fair use, statutory permission and other statutory exemptions, it is suspected of infringing the copyright of the work, and the content that is not created, photographed or not authorized by the copyright owner may have copyright risks, including the unauthorized use of other people's materials for secondary processing.
What is the review mechanism for the video content uploaded by users? Zinc Finance asked ByteDance, but as of press time, the company had not given an answer.
In this regard, Zinc Finance also called the customer service of ByteDance's Douyin and Watermelon Video to inquire and learned that the movies in the Douyin Movie and Watermelon Video Movie Screening Hall have copyrights, and users can watch them.
For the copyright movies that Douyin and Watermelon Video already have, can users take them to cut, create and publish? As of press time, ByteDance also has no reply.
Douyin customer service did not have a clear answer, only said that if there is a question can be sent to the app feedback, someone will answer.
The customer service of Watermelon Video replied directly: These behaviors are not allowed. Zinc Finance asked: "Since it is not allowed, why are there so many bloggers doing it?" The customer service also said: "You can send the question to the app's feedback." Subsequently, Zinc Finance went to the watermelon video feedback to ask questions in accordance with the operation method given by customer service, but as of press time, no reply was received.
However, in fact, Zinc Finance found that there are many bloggers on the Douyin platform who do not have much traffic, and they are cutting, creating and successfully releasing solo dramas on other long video platforms.
Some bloggers said that in general, solo dramas and newly released film and television dramas should not be cut, which is risky. However, bloggers with small fans are generally not managed, because the number of such bloggers is very large, and the copyright owner has no time to take care of them.
Subsequently, Zinc Finance tried to use its Douyin account and watermelon video account to simply cut the film and television dramas "JiangZhao Dawn" and "Happiness Duo" solo broadcast by Mango TV, the fifth season of the solo variety show "Singer Dangda Year" and "Longing for Life"; iQiyi's self-made drama "Gongzi Falling City" and "The Hidden Corner", the second season of the self-made variety show "I Am a Singer-Songwriter" and the second season of "Summer of the Band"; Tencent Video's solo film and television drama "Sweeping the Black Storm", the fifth season of the self-made variety show "Spit Conference", and the "Talk Show Conference" The fourth season; Youku and CCTV broadcast the film and television drama "Emergency Public Relations", the fifth season of the self-made variety show "Mars Intelligence Bureau", and then successfully uploaded and released these works.
Among them, all the cut videos on the Douyin platform were quickly passed, from upload to release, and no review prompt was given. After the watermelon video was uploaded, after a period of review, most of them passed at once. "Gongzi Allure" failed, showing that the reason was: infringing material. And when Zinc Finance tried to upload again, and did not make any modifications, this time it was successfully passed.
Some bloggers have reflected that the threshold for Douyin users to upload video content is very low, the platform often first through the published content, if there is a copyright owner found infringement, will notify the platform and ask for removal, then the platform will remove the infringing video. This is a typical "safe harbor" principle, and short video platforms have often tried to exempt infringement liability through the "safe harbor" principle.
As early as September 2018, the National Copyright Administration interviewed 15 video content platforms such as Douyin and Station B, requesting that copyright management be strengthened, that other people's works such as film and television and music should not be directly copied or disseminated without authorization, and that the "safe haven" principle should not be abused in the name of user upload.
In April last year, more than 70 film and television companies and industry associations, long-form video platforms such as Mango TV, Tencent Video, Youku, iQiyi, and more than 500 artists issued joint statements and joint initiatives to jointly call for the protection of film and television copyrights and oppose infringement by short video platforms.
The "Detailed Rules for the Review of Online Short Video Content Standards" (2021) issued this time is a comprehensive revision on the basis of the 2019 version. When the "Detailed Rules" were first introduced, some voices believed that it would cause a devastating blow to film and television cutting bloggers such as "three minutes to watch movies".
However, some bloggers calmly believe that film and television cutting and secondary creation content contribute greatly to the traffic of short video platforms, and the platform is simply reluctant to cut off this "fat meat". Moreover, the China Online Audiovisual Program Service Association is a social organization, not a relevant state department, and the "Detailed Rules" issued by it do not yet have the deterrent effect of national laws and regulations. Therefore, the short video platform is still in the stage of taking a step to see a step, although some platforms have had internal rectification actions, but most of them are thunder and rain, just make a look.
Up to now, short video platforms such as Douyin have not responded to the "Detailed Rules" issued by the China Online Audiovisual Program Service Association.
The industrial chain has long been formed
In fact, the vague attitude of the short video platform is only one aspect, and the huge chain of interests behind it is the biggest reason why many bloggers ignore the "Detailed Rules", and teaching and selling materials have become the most common traffic monetization methods in the short video editing circle.
In the interview, Zinc Finance learned that the general fee for the teaching of two-creation and cutting bloggers is 499-998 yuan, and the charging standards for bloggers with large fans range from 1000-thousand yuan.
Take Lucky Clip as an example, its teaching price is 499 yuan, and the time is from 11 noon to 12 am, teaching at any time. Lucky Clip said that as long as a mobile phone, even if it is 0 basic, it can be learned in 1-7 days, and it is lifelong teaching, and the follow-up is no longer charged.
Ah Tian's film and television editing is divided into three files, which are 998 yuan for the primary class, 1680 yuan for the senior class, and 2680 yuan for the worship class. Among them, the primary class includes the production, operation, and monetization teaching of the basic foundation of the powder. The Advanced Class covers all elementary classes. Both beginner and senior are assistants to teach. The worship class is his own one-on-one tutoring and teaching of the entire course.
From the blogger's circle of friends, it was found that most of the film and television clips were the current outlet, the apprentice works became explosive, and the information that made hundreds of dollars by playing with the mobile phone at home easily every day.
For why the price is so high, Ah Tian Film and Television Clip said: "There is a reason why you are expensive, you can also see the speed of my fans, my student feedback record circle of friends also exists, are real, and the late income of my students is several times that of the worship class every month." ”
According to Zinc Finance, fans can reach millions or even more bloggers, they generally record a unified editing tutorial, wholesale sales, a month in tuition income can be more than one million.
In addition to teaching, there is also advertising revenue. A blogger with nearly 6 million fans told Zinc Finance that the official offer for one of its ads is 38,000, and it is good to earn hundreds of thousands of dollars a month just by advertising.
However, some bloggers also admit that this industry is mixed, and many of them cut leeks. Some so-called "masters" sell video tutorials to "apprentices" and then give up, and whether "apprentices" can make traffic by themselves is completely dependent on themselves.
In addition to the "mentoring and apprenticeship" type of interest chain between bloggers and fans, short video platforms are also providing bloggers with a lot of welfare space.
Some Douyin bloggers with a small number of fans, from the genuine film and television provided by Douyin and Watermelon Video, after the cutting and two creations are released, a link will appear in the lower left of the video to guide users to the watermelon video to see the full version, and the watermelon video will issue bonuses to the bloggers according to the diversion ranking, and the bonuses are generally ranging from 1000-5000 yuan.
Based on this reward model, many bloggers rely more on the welfare of the platform, and the platform also needs these bloggers, because the number of these bloggers is obviously much larger than that of bloggers with large fan numbers.
So, the question is: even if the platform owns the copyright, what about the bloggers?
It is reported that some copyright parties cooperate with the platform first, and the platform then selects a certain number of bloggers for cutting, secondary creation and other dissemination, but after all, the cooperative bloggers are designated and the number is limited. And this set of gameplay of Douyin and Watermelon Video is more like guiding more bloggers to come in, will the copyright owner and the platform cooperate with each blogger?
The crackdown still needs to be intensified
Why is it that nearly two months after the release of the "Detailed Rules", short video platforms and bloggers have ignored its existence? What effect can the promulgation of the Detailed Rules have?
Xia Hailong, a lawyer at Shanghai Shenlun Law Firm, said that the "Detailed Rules" are self-discipline documents within the association, which rely on the conscious compliance of each member unit, are not mandatory and binding, and cannot be legally effective externally.
Shan Qidi, a lawyer at Zhejiang Kenting Law Firm, also said that the Detailed Rules can be understood as "industry norms", which do not have the effect of mandatory application at the level of legal application, but it has the effect of reflecting industry self-discipline or industry practices, so it is helpful for understanding the review obligations of short video platforms and the development of the industry.
According to the official website of the China Online Audiovisual Program Service Association, the association was established on August 19, 2011, is the only national-level industry organization (first-level association) in the field of online audio-visual, and is also one of the largest industry associations in the field of Internet in mainland China. The association has more than 700 member units, including radio and television broadcasting institutions such as China Central Radio and Television Corporation, Hunan Television, Zhejiang Television, mainstream new media institutions such as People's Network, Xinhua Net, and China Net, Internet companies such as Alibaba, Tencent, Baidu, etc., audio-visual program service agencies such as Youku, iQiyi, Sohu Video, and Station B, film and television program production companies such as China Film, Huace, Ciwen, Noonday Sunshine, and Perfect World, as well as network technology companies such as Huawei and ZTE, covering the entire industry chain of the online audio-visual industry.
Liu Yue, a partner lawyer at Beijing Daqi Law Firm, said that according to the second paragraph of article 12 of the Standardization Law of the People's Republic of China, the industry standards are formulated by the relevant administrative departments of the State Council and reported to the competent administrative departments for standardization under the State Council for the record, so the Detailed Rules should not be industry standards in the sense of administrative law. However, as the industry standard rules promulgated by industry associations, there is no doubt that they are quite binding on enterprises in the audiovisual industry, especially for enterprises within the association, and once they are implemented, they should and must be universally implemented and complied with.
According to the official website of the China Online Audiovisual Program Service Association, Beijing ByteDance Technology Co., Ltd. is the vice president unit. It can be seen that as a member of the member unit, ByteDance is still debatable in terms of conscious compliance.
And is it an infringement for the increasingly widespread acts of handling, shearing, and secondary creation?
Shan Qidi told Zinc Finance that at present, short videos are mainly divided into direct handling, mixing and cutting, and secondary creation (such as explaining the plot). Among them, the direct handling of short videos generally does not process the film and television works, or only does a simple removal of the title, end of the film, advertising, or selects part of the content in the complete plot for sliced porting, which obviously constitutes infringement.
The mixed cut and secondary short videos need to be combined with the video content, and it is necessary to judge whether it is in line with the "fair use" situation from the essence, and it is necessary to evaluate whether such videos are really "original", showing the expression of the video producer's ideas different from the original video. Fair use presupposes that the video author has indeed created a new work, and that the reference to the original work is in the service of that new work. If the proportion of the original work cited is too high, or if it is "noisy" compared to the new work, it may be difficult to constitute fair use.
Liu Yue also pointed out that on major short video platforms, many movies and TV series are only condensed editing of the original content, and do not constitute any new expression, because they do not have any new original content, so such condensed editing often constitutes an alternative expression, which is a serious copyright infringement. For example, "three minutes to watch a movie", usually a condensed clip, constitutes alternative use, and usually constitutes infringement.
From the perspective of other infringements, the creation of short videos may also involve infringement of social public interests such as portrait rights, reputation rights, privacy rights, and minors' physical and mental health, and it is necessary to conduct specific analysis in light of specific circumstances.
So, what is fair use coverage?
Liu Yue said that fair use refers to the situation in which a work is used in accordance with the circumstances referred to in Article 24 of the Copyright Law, and remuneration may not be paid to the copyright owner without permission, but the name or title of the author and the name of the work should be specified, and the normal use of the work must not be affected, and the legitimate rights and interests of the copyright owner must be reasonably damaged.
"If a short video plays a substantial substitute role in the original work through the photo collection or video clip editing, it caters to the fast food culture, and substantially damages the legitimate rights and interests of the copyright owner, and it is not a 'fair use'." In addition, some short videos are made by using the material clips provided by the platform, and it is necessary to define the ownership and interests between the platform, the right holder of the material work, the editor, etc., and then judge the ownership of interests. Liu Yue said.
In the view of many legal persons, the main judgment on whether acts such as short video cutting and secondary creation constitute infringement lies in whether it is original and whether it is fair use. However, at present, many cuts and secondary creations rarely involve the creations mentioned in the sense of the Copyright Law, and usually do not constitute "original" content with "new".
On the other hand, the dispute between infringement and non-infringement on long and short video platforms has always been large, and it is difficult to briefly summarize it, and can only be analyzed in specific cases. However, as of now, the copyright lawsuits between some large manufacturers have not yet been finalized, and there are not many cases that can be referred to.
Some experts pointed out that the current situation is mainly caused by the pursuit of commercial interests by platforms and bloggers, and with the increase in the attention of all sectors of society, the problem of short video infringement will continue to be amplified, so it is urgent for the state to introduce relevant policies to rectify.