Hotspots · Analysis

Second Creation Short Video: Is it a Fast Food for Film and Television or a Minefield of Infringement?

Recently, famous director Zhang Yimou publicly called on the public to abandon the habit of watching short video movie commentary on mobile devices, which has once again sparked discussions on the topic of "secondary creative videos" and made it to the hot search.

In today's era of explosive and high-speed information dissemination, content such as "watching 'XXX' in one breath" and "watching a movie in three minutes" is flooding major short video platforms. This kind of short video, which is defined as "secondary creation", is a kind of short video that the creators edit and rearrange the original film and television works, and extract the plot outline and essence fragments to meet the needs of the audience to quickly understand the story of the film in a very short time.

However, although "secondary creative videos" meet the fragmented entertainment demands of modern people with their fast and efficient dissemination characteristics, their development path is fraught with obstacles. On the one hand, it exhibits a unique charm of cultural dissemination; On the other hand, it is deeply mired in infringement.

Infringement dilemma

At present, infringement disputes in secondary innovation videos are not uncommon, and many typical cases of rights protection lawsuits are coming in droves. For example, because of the infringement dispute of "Yunnan Insect Valley", Tiktok was awarded more than 32 million yuan by the court to Tencent, which broke the historical record of compensation for online film and television copyright cases by Chinese courts; IQIYI sued Kwai for infringing the broadcast of Langya List and Jiumen. The court ruled that Kwai had to compensate iQIYI for economic losses and reasonable expenses totaling 2.18 million yuan.

From a legal perspective, most acts of "secondary creation" are essentially adaptations without the legitimate authorization of the original copyright owner. Undoubtedly, this has already infringed upon the copyright enjoyed by the original author. Unauthorized use of original materials for creation and widespread dissemination is difficult to meet the "reasonable use" requirements stipulated in Article 24 of the Copyright Law in the vast majority of cases. Although the law provides a detailed list of specific scenarios that can be considered as "reasonable use", in the complex ecosystem of creation and dissemination in reality, by comprehensively weighing multiple factors such as the creative intention, work attributes, scale of use of original materials, and potential market impact of "secondary creation" short videos, it can be clearly seen that the vast majority of such works have significant differences from the legal standards of "reasonable use".

Development turning point

Despite facing many obstacles, the "secondary creation" short video industry still presents a positive development trend and turning point. Long and short video platforms are gradually abandoning the previous confrontational situation and actively exploring new models of cooperation and win-win outcomes, especially in copyright cooperation where they have achieved many substantial results. Short video platforms have successively reached deep copyright cooperation intentions with multiple mainstream long video platforms in China, obtaining authorization and licenses from copyright owners in accordance with laws and regulations, and building excellent creative spaces for their short video bloggers engaged in "secondary creation", providing strong creative guarantees.

It is strongly recommended that video creators thoroughly study and understand relevant legal provisions, accurately understand the boundaries of infringement risks, and not build their own account growth and personal reputation accumulation on a video creation model with high infringement risks. Otherwise, once involved in legal disputes, the hard work accumulated over the years may be in vain.

Industry · New Policies

1. Beijing Intellectual Property Administration revises the "Measures for the Recognition and Management of Intellectual Property Agglomeration Development Zones for Small and Medium sized Enterprises in Beijing"

On December 12th, the Beijing Municipal Intellectual Property Office announced the "Notice on Revising the Measures for the Recognition and Management of Intellectual Property Agglomeration Development Zones for Small and Medium sized Enterprises in Beijing".

After the revision of the Measures, it is clarified that work guidance and policy support will be provided to the identified agglomeration development areas, including:

1. It is recommended that enterprises in the agglomeration development zone participate in the application for intellectual property advantage units and the cultivation of national intellectual property advantage demonstration enterprises.

2. Establish a working system such as a national patent examiner practice base to provide convenient conditions for the application, confirmation, and protection of intellectual property rights of enterprises in the cluster development zone.

3. Guide enterprises to connect with intellectual property service resources, carry out intellectual property layout and navigation analysis, and effectively explore and cultivate high-value patents.

4. Guide enterprises to establish intellectual property alliances with upstream and downstream industry entities, promote industrial collaborative innovation, and jointly address intellectual property risks.

5. Encourage enterprises to engage in industry university research cooperation with universities and institutions, and carry out joint research and development, transfer and transformation of intellectual property and technological achievements.

6. The Beijing Municipal Intellectual Property Bureau shall provide appropriate financial support to the designated cluster development areas based on the approved budget for the fiscal year, to support the implementation of intellectual property services as described in Article 9, and shall not provide duplicate support for work items that have already received support.

2. The revised draft of the Anti Unfair Competition Law is submitted for review

On December 21, the 13th meeting of the Standing Committee of the 14th National People's Congress reviewed the Law of the People's Republic of China on Combating Unfair Competition (Revised Draft).

The draft mainly clarifies the overall requirements for combating unfair competition, improves the description of departmental responsibilities, enhances relevant regulations on unfair competition behavior, and improves regulations on anti unfair competition supervision and punishment. The revised draft aims to improve the regulation of confusion behavior, stipulating that operators shall not use new media account names, application names or icons that have certain influence from others without authorization, or set product names, enterprise names, etc. that have certain influence from others as their search keywords, causing confusion; Operators shall not provide convenience for others to engage in confusing behavior. In addition, the draft requires strengthening the governance of commercial bribery, improving the regulatory system for unfair competition on the internet, perfecting relevant regulations on false advertising, unfair sales with prizes, commercial defamation, and abuse of advantageous positions that harm the legitimate rights and interests of small and medium-sized enterprises, and adding provisions for "punishment to individuals" for the legal representatives, main responsible persons, and directly responsible personnel of operators who engage in commercial bribery. The draft specifically stipulates that operators shall not use new media account names, application names, or icons that have a certain influence on others without authorization, or set product names, enterprise names, etc. that have a certain influence on others as their search keywords without authorization, causing confusion.

3. Regulations on the Submission of Tax related Information of Internet Platform Enterprises to the Public for Comments

On December 20, 2024, in order to promote the healthy and orderly development of the platform economy, the State Administration of Taxation issued the Regulations on the Submission of Tax related Information by Internet Platform Enterprises (Draft for Comments) (hereinafter referred to as the Regulations) and solicited public opinions. The deadline for soliciting opinions is from December 20, 2024 to January 19, 2025. The public can submit their opinions and suggestions by logging into the website of the State Administration of Taxation, mailing letters, and other means.

The Regulations further regulate Internet platform enterprises to submit tax related information of operators and employees within the platform to tax authorities, and make clear provisions on who reports tax related information, what to report, how to report and other matters. The Regulations especially emphasize that when Internet platform enterprises handle tax related matters such as withholding declaration and declaration on behalf of operators and employees in the platform according to regulations, the tax related information already filled in may not be submitted repeatedly; The income information of employees engaged in convenient labor activities such as delivery, transportation, and housekeeping may not be reported. Tax related information that can be obtained through departmental information sharing will not be submitted repeatedly by Internet platform enterprises.

According to the Provisions, Internet platform enterprises shall, within the tax declaration period of the next month after the end of the quarter, submit to the competent tax authority the relevant income information summarized by the operators and employees of the platform in the previous quarter, and there is no need to report the stock income information before the implementation of the Provisions. The tax department will keep confidential the tax related information obtained in accordance with the law.

At the same time, the Regulations also clarify the contents of reducing the burden of information submission of platform enterprises, ensuring information security and quality, and legal responsibility. For tax related information shared by industry and information technology, human resources and social security, transportation, taxation, market supervision, and online information departments with tax departments, the Internet platform may not submit repeatedly.