Short Videos’ Infringements Issue in China
Short videos have a vast market in China. The year of 2000 was considered the "first year of online short videos," with a market size of CNY 940 million. By 2022, the short video market had grown to CNY 10.17 billion, and in 2023, it reached CNY 37.39 billion. It is expected to exceed CNY 50 billion in 2024. On December 18, Goldman Sachs analysts emphasized in a report that the domestic short video/mini-video market size (TAM) has already surpassed the film market and is close to 70% of the long-video streaming market, with expectations to reach CNY 91 billion by 2027. Due to the enormous commercial benefits, copyright infringement of short videos has become a hot topic. How to determine whether a short video constitutes an adaptation of a literary work, and how to determine whether the platform has effective supervision over the short video?
(I) How to determine whether a short video constitutes an adaptation of a literary work?
In judicial practice, the determination of copyright infringement follows the "access and substantial similarity" principle. Generally, in cases where short videos infringe on literary works, the literary works usually have a certain degree of popularity, making it relatively easy to prove that the defendant had access to the plaintiff's work. The controversy often lies in whether the copyrighted work and the alleged infringing work have substantial similarities.
The Supreme People's Court has published a case study on this issue. The popular short video "Dear Night Prince" was sued for infringing on the copyright of the serialized novel "The Wall-Climbing King's Concubine." The court ruled that the copyrighted work and the alleged infringing work were different types of works (i.e.literary work and audio-visual work), so when judging substantial similarity, the differences in work types should not be considered. Instead, the comparison should focus on aspects such as main plot design, background setting, character setting, and plot structure. In this case, the copyrighted work and the infringing short video had similarities in plot design, story mainline, background setting, story theme, character setting, and dialogue, which could be recognized as having a creative source relationship, constituting an adaptation of the copyrighted work, and infringing on the adaptation right. Furthermore, the defendant's production of the short video was based on a script that was an adaptation of the copyrighted work, without the permission of the copyright owner, which also infringed on the production right.
(II) Can the platform that plays the short video also be sued for infringement?
According to the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in Civil Disputes over Infringement of Information Network Dissemination Rights," if the plaintiff provides preliminary evidence that the network service provider has provided the relevant work, performance, or sound and video recordings, but the network service provider can prove that it only provides network services and has no fault, the people's court shall not recognize it as an infringement. The people's court shall determine whether the network service provider bears the responsibility of instigating or assisting in infringement according to its fault. If the network service provider has not actively examined the network user's infringement of information network dissemination rights, the people's court shall not recognize it as having fault. If the network service provider can prove that it has taken reasonable and effective technical measures but still cannot discover the network user's infringement of information network dissemination rights, the people's court shall recognize it as not having fault. Therefore, if the network platform company has reasonably noticed but still failed to discover the copyright infringement, it cannot be recognized as having fault.
In conclusion, the rapid growth of the short drama market in China has led to an increase in copyright infringement cases, making it essential to establish clear guidelines for determining whether a short video constitutes an adaptation of a literary work and whether a platform has effective supervision over short videos. By following the "access and substantial similarity" principle and examining the platform's measures for detecting and preventing copyright infringement, courts can make informed decisions in copyright infringement cases. Furthermore, platforms must take proactive steps to prevent copyright infringement, including implementing effective content recognition technologies, establishing clear guidelines and rules for users, and providing educational resources and warnings to users who upload infringing content.
Ultimately, the key to resolving copyright infringement disputes in the short drama market lies in striking a balance between protecting the intellectual property rights of creators and promoting the development of the industry. By working together, copyright owners, platforms, and regulatory bodies can create a fair and sustainable ecosystem that supports the growth of the short drama market while respecting the rights of all parties involved. As the market continues to evolve, it is essential to remain vigilant and adapt to new challenges and opportunities, ensuring that the rights of creators are protected and the industry can continue to thrive.
