Short video infringement cases are common. Experts： The platform must not abuse the safe haven principle.

　　With the growing prosperity of short video, short video infringement cases are also increasing.

　　The first case accepted since the establishment of Beijing Internet Court last year — — Tik Tok, a short video App, sued Baidu, a subsidiary of Internet technology giant, for infringement of information network communication rights. On April 22nd this year, Haidian District People’s Court of Beijing sentenced Beijing ByteDance Technology Co., Ltd. to Beijing Aiqiyi Technology Co., Ltd. for infringement of information network communication rights, and the topic of short video infringement attracted attention from all walks of life.

　　When the dispute strikes, short video producers and publishers are inevitably caught in the whirlpool. Can the short video platform get away calmly? Recently, the "Legal Daily" reporter interviewed industry experts on related hot topics.

　　Judge whether it belongs to a work.

　　Three requirements must be met.

　　Whether a short video belongs to a work has always been one of the focuses of controversy in the industry.

　　According to Article 2 of the Regulations for the Implementation of the Copyright Law of People’s Republic of China (PRC), the term "works" in the Copyright Law refers to the intellectual achievements that are original and can be reproduced in some tangible form in the fields of literature, art and science.

　　Zheng Ning, deputy director of the Law Department of the School of Political Science and Law of China Communication University, analyzed that a work needs to meet three requirements: first, the specific expression in the fields of literature, art and science; Second, it is original; Third, it can be copied in some tangible form. "If the short video meets the above three requirements, it constitutes a work."

　　According to Zheng Ning, judging from some current court cases, short videos are usually regarded as electric works, which refer to works that are shot on a certain medium, composed of a series of pictures with or without sound, and projected by appropriate devices or spread by other means.

　　According to Zhang Xingshui, director of Beijing Jingding Law Firm, short videos belong to the works referred to in the Copyright Law only under certain conditions. It must meet at least the following two conditions: first, it must be reproducible, and the works protected by copyright law are intellectual achievements that can be expressed in the form of material reproduction, including printing, recording, photography, painting and performance; Second, it must be original, which is also the core requirement of the object protected by copyright law, that is, it is conceived independently by the author and cannot be copied, plagiarized or tampered with by others’ works.

　　"China’s copyright law does not define the specific meaning of originality, but in judicial practice, it is generally required that works must reflect the author’s ‘ Choose and judge ’ That is, the work is independently created by the author and reflects some characteristics such as choice, choice, arrangement and design. " Zhang Xingshui said.

　　If a short video belongs to a work as mentioned in the copyright law, how does the copyright belong?

　　Zhang Xingshui replied that copyright is the legal ownership of the right to copy computer programs, literary works, musical works, photos, movies, etc. Short video belongs to the works mentioned in the copyright law, and the right holder enjoys copyright. For the problem of the right boundary between short video platforms and between short video platforms and users, the ownership of short video rights should be considered first.

　　"The right holder of short video may be a user or a short video platform. If the user is the right holder of the short video, the short video platform may obtain the copyright based on the employment relationship, or may obtain the copyright through transfer. " Zhang Xingshui said.

　　Spreading video against standards

　　It is strictly forbidden to exceed the scope of use.

　　Some people think that with the increase of short video platforms, the number of short videos increases, and if others’ works are used for non-profit use, it does not constitute infringement.

　　In Zhang Xingshui’s view, the unprofitable use of other people’s works also constitutes infringement. Article 22 of the Copyright Law stipulates 12 kinds of scope of fair use, and Article 6 of the Regulations on the Protection of Information Network Communication stipulates 8 kinds of scope of fair use, which are mainly judged according to the purpose, nature and degree of using the work and the market influence of the used work.

　　"For personal study, research or appreciation, use the published works of others, or introduce and comment on a work or explain a problem, and appropriately quote the published works of others in the works. Therefore, when spreading videos, the public should remember to refer to the standards and judge whether their behavior falls within the scope of reasonable use specified above. If it is not within the scope of fair use, it will be considered as infringement. " Zhang Xingshui said.

　　So what are the common types of infringement of short videos?

　　According to Zheng Ning, there are three common types of short video infringement. One is to use other people’s short videos without permission; The second is to spread film and television works, sports, variety shows and other fragments without permission; Third, unauthorized use of other people’s music, words, art and other works in short videos.

　　Zhang Xingshui believes that the copyright infringement of short video refers to the act of uploading and downloading without the permission of the copyright owner and without legal basis, reprinting between networks or exercising the rights exclusively enjoyed by the copyright owner in other improper ways on the network.

　　Zhang Xingshui said that there are five basic types of online copyright infringement:

　　One is to publish his works without the permission of the copyright owner. Infringement of the copyright owner’s right to publish under the network environment mainly takes the following forms: making his works public without the author’s permission; To publish a work in advance or delay against the author’s will; Publicizing a work in other forms against the author’s wishes.

　　Second, the works are used for network communication by means of copying, exhibition, distribution and projection without permission.

　　The third is to use other people’s works for online communication, without paying remuneration as agreed.

　　The fourth is to distort and tamper with other people’s works. Under the network environment, compared with traditional media, it is easier for others to distort and tamper with works, and the copyright owner’s right to protect the integrity of works is more vulnerable to infringement.

　　The fifth is to plagiarize other people’s works. Infringe on the copyright owner’s right of publication, signature and reproduction. Plagiarism of other people’s works has two forms: one is to copy the works of the copyright owner completely or mostly; The other is to change the content or form of the copyright owner’s work to a certain extent for plagiarism.

　　How to identify the infringement? Zheng Ning said that there are two criteria for determining whether it constitutes infringement:

　　First, contact is similar to substance. Contact means that the previous works can be obtained by the public, and the substance similarity is complicated, which requires the accused infringing works to be substantially identical or similar to the original works in expression, and it is enough to influence readers’ choice and evaluation of the original works. There are many methods to judge substantive similarity, such as overall comparison method, reader observation method, partial comparison method, etc., which are usually comprehensively judged by courts or professional copyright appraisal institutions.

　　The second is to see if there is a legitimate defense. Article 21 of the Regulations for the Implementation of the Copyright Law stipulates that in accordance with the relevant provisions of the Copyright Law, the use of a published work without the permission of the copyright owner shall not affect the normal use of the work, nor shall it reasonably harm the legitimate interests of the copyright owner.

　　How to use short videos does not constitute infringement? Zheng Ning suggested that, first, it should be authorized by the copyright owner; Second, rational use does not affect the normal use of the original work, and cannot unreasonably harm the legitimate rights and interests of the copyright owner.

　　The platform shall fulfill its due obligations.

　　Avoid joint infringement.

　　In the case of short video infringement, is the platform released by the infringing short video liable except for the litigants?

　　In this regard, Zhang Xingshui bluntly said that from the perspective of industry development, the short video platform, as the promoter and operator of the short video industry, has a natural high obligation and responsibility for the standardization of short video communication behavior and the benign development of the industry. However, in the existing infringement cases, short video websites are often based on the safe haven principle, claiming that as a network service provider, they only have the responsibility of notifying deletion.

　　Zhang Xingshui believes that according to the law, whether the platform party, as a provider of short video content storage and link services, can be exempted from liability should first analyze and consider the following three factors: First, whether the short video website knows or should know that the content on its platform is infringing; Second, whether the content provided by the client has not been changed; Third, whether to get economic benefits from infringing short videos.

　　"To sum up, no matter from what angle, the short video platform cannot be exempted from short video infringement of popular movies, variety shows and well-known sports events based on the safe haven principle." Zhang Xingshui said.

　　In Zheng Ning’s view, there are exceptions to the safe haven principle. The "Red Flag Standard" stipulated in Article 23 of the Regulations on the Protection of Information Network Communication Rights states that if an Internet service provider knows or should know that the linked works, performances, audio and video products are infringing, it shall bear joint tort liability.

　　At the same time, whether the platform belongs to "should know or know" in Article 9 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Civil Dispute Cases Infringement of Information Network Communication Right is mainly determined from the following aspects: First, the type, popularity and obvious degree of the alleged infringing content; The second is the duration of infringement; Third, whether the platform has taken reasonable measures to prevent infringement; Fourth, whether the platform has taken the initiative to select, edit or other recommended active behaviors; The fifth is whether the platform obtains direct economic benefits from it.

　　"Therefore, if the short video platform fails to take timely measures after receiving the infringement notice, or knows or should know the infringement, it should bear the corresponding tort liability." Zheng Ning said.

　　Zheng Ning bluntly said that the frequent short video infringement cases are mainly caused by high infringement income and low infringement cost. She suggested that the first is to strengthen the short video copyright registration; The second is to strengthen the evidence collection and deposit of infringement through blockchain and other technologies; Third, strengthen administrative protection and improve administrative complaints and administrative penalties; Fourth, strengthen judicial protection; Fifth, the short video platform strengthens content review; Sixth, trade associations should strengthen self-discipline.

　　"Performing other people’s works without permission, the webcast platform should also bear the tort liability when it is known. For these problems, the responsibility of the live broadcast platform should be clarified through legislation; Establish a common network supervision model, improve the collective management system, and set up institutions specifically to deal with problems in this field; Strengthen relevant publicity and awaken public awareness of rights. " Zhang Xingshui said. (Reporter Han Dandong Intern Jiang Shan)