A Study on the Determination of Originality of Chinese Short Video Templates
Zhang Chunyu1*, Zinatul Ashiqin Zainol1*
1 Faculty Law, Universiti Kebangsaan Malaysia (UKM), Malaysia
*Corresponding Author: [email protected], [email protected]
Accepted: 15 April 2023 | Published: 30 April 2023
DOI:https://doi.org/10.55057/ijbtm.2023.5.1.35
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Abstract: Under the rapid development of the Internet, China's short video industry has entered a period of rapid development. As an emerging technology product born in recent years, Short Video has the characteristics of a low creation threshold, convenient viewing method, and fast dissemination, which users love. Many bloggers have gained massive traffic through the Short video and thus have gained huge economic income. With the explosion of the short video industry, large short video companies have launched video editing software to support the video platform, such as Byte Jumping's cut screen APP and Racer Technology's fast shadow APP. Moreover, B station must cut APP (China Association of Network Audiovisual Program Services, 2021). Compared with traditional video editing software, this application's creation difficulty is low and easy to operate. In contrast, the application provides a variety of internal templates, and users only need to follow the prompts to upload pictures or videos can be. The appearance of short video templates helps users save many learning and time costs and dramatically increases user activity and dependence. However, with the popularity of short video templates, academics, and practitioners have not reached a unanimous conclusion on whether "short video templates" can be protected by copyright. This article takes the first case of a copyright dispute over short video templates in China as an example and discusses the relevant issues.
Keywords: copyright protection, short video template infringement
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1. Introduction
On February 27, 2020, the short video creator "A Bao" released a short video template on Cut Screen. On February 28, Tempo's video editing software released the same short video template (China Quality News Network, 2022). On April 16, 2021, the Hangzhou Internet Court ruled that Tempo had infringed on the plaintiff's right to information network dissemination. In this regard, the defendant should immediately stop providing the infringing short video in Tempo App and compensate the plaintiff for economic losses and reasonable expenses totaling 60,000 yuan.
As the Short video template infringement case in China, the verdict of this case provides a judicial basis for the copyright ability of short video templates and points the way to clarify further the classification and originality judgment standards of short video templates. This article will further clarify the definition and classification of short video templates and clarify the judgment standards and factors for determining the originality of short video templates, to
provide theoretical support for the orderly development of the short video industry based on the first Short video template infringement case.
2. Short Video Concept Analysis
At present, the industry and academia have not yet used a unified standard for defining the concept of short video. Ariadne believes that the length of short videos should be within five minutes, the level of creation is not high, with strong social attributes, short time required for users to watch, convenient to use the scene, catering to the fragmented consumption habits of users in the mobile Internet era. According to EWI, short videos are born in the mobile Internet era, and they have the characteristics of meeting the communication and interaction needs of various groups of users, with the length of short videos not exceeding twenty minutes, and the subjects of shooting, uploading and sharing may be users or professional teams. According to China Business Industry Research Institute, short video is a new form of video, the length of which should be counted in seconds, and can be quickly shot and beautified and edited using mobile intelligent terminals, and can be shared and seamlessly connected on social platforms anytime and anywhere. Short video integrates text, voice and video together, and users can express and communicate more directly and imaginatively, meeting people's needs for display and sharing.
3. Short Video Template Concept Analysis
A "short video template" is generally a short video of no more than 20 seconds made by the creator of a video template based on a specific theme, which consists of video, pictures, text, filters, effects, background music, and other materials combined. Users can generate short videos by replacing the template's videos, pictures, or texts. From the technical point of view, the essence of the short video template is that the creator spreads out the pr-selected effects, pictures, and other materials on the video editing track and reserves the position for replacing the materials. Then the user can automatically generate the short video he wants after inserting his materials.
4. Short Video Template TUPE Analysis
As significant short video companies launch their corresponding editing Apps, there are many categories of short video templates. They are becoming more and more detailed, taking the editing APP as an example. We generally divide the content of short video templates into card points, travel, life blog, style blockbusters, and other types. From the perspective of video template creators, short video templates divide into User-Generated Content, Professional User-Generated Content, and Professional Generated Content. Professional User-Generated Content and Professional Generated Content (Cong, 2019).
From the perspective of judging copyright originality, video templates divide into the following two categories, which is also the classification adopted in this paper: 1. Basic templates. This type of template mainly shows photos or plays videos according to the change of music rhythm, and the template's creator only needs to set the position of inserting pictures or videos. This type of template needs more creativity and storytelling, the form is monotonous, and the templates made by different producers according to the same music are the same. 2. Special effect type template. This type of template mainly uses editing skills and creativity. The picture is beautiful and shocking. The special effects type template generally has a specific theme, and the content and form are more creative, requiring intellectual input from all aspects of the
producer. The producer needs to select the background music in line with the video's tone according to the emotion and style they want to express and select a variety of stickers, filters, transitions, text, and other elements, according to the personality. The various elements' order, location, and duration vary according to each individual's expression. The selection, order, and design of the various elements reflect the personalities and styles of different producers. This article will also focus on the analysis of special effects templates.
5. Short Video Template “Work” Attribute Analysis
At present, the latest "Copyright Law" in the concept of works made a significant revision, is the current copyright law implemented "statutory work type" mode into "open work type"
mode. Article 3 of the current Copyright Law lists the types of works (Wang, 2021). The last category (Item 9) is "other works stipulated by laws and administrative regulations," which is general. However, the "generalization" is strictly limited. It must be stipulated by "laws and administrative regulations" and cannot be stipulated by other normative documents (Wei, 2002). So far, no law or administrative regulation has defined a new type of work. This means that the works recognized by the people's court in judicial practice must be classified into the eight categories of works listed in the first eight items of Article 3 of the current Copyright Law. Alternatively, the compilation works stipulated in Article 14 cannot be recognized as new works by themselves. This is the "statutory model of work type" model, the same model used in copyright legislation in the United Kingdom, Australia, New Zealand, Ireland, South Africa, Nigeria, Kenya, Malaysia, and the Special Administrative Region of Singapore. It should be pointed out that the "legal type of work" is not, as some views think, based on the premise that a specific intellectual achievement fully meets the requirements of works, whether it belongs to the legal type of works if not, such works will not be protected.
On the contrary, the "statutory type of work" is a limitation on the forms of expression that constitute a work. It means that in all intellectual achievements of human beings, only those with specific forms of expression may belong to works and be protected by copyright law.
Therefore, we can summarize the specific constitutive requirements of the work: First, the field of the work needs to be literature, art, or science; Secondly, the work needs to be an intellectual achievement in a particular form; Finally, the work needs to meet the standard of
6. The Originality of the Short Video Template is Determined
6.1 Criteria for determining the originality of short video templates
The final purpose of the short video template is to form a short video uploaded to the video- sharing platform for dissemination. There needs to be a clear conclusion on the criteria for determining the originality of the short video template. From the perspective of the short video, there are three main views in the academic community. one view is that the standard for short video should not be too high, emphasizing that the work should have a minimum level of creativity; Wei represents this view. Wei represents this view. Another view is represented by Wu Han dong, who believes that a work must contain the author's emotions and thoughts in order to reflect originality. The third view is a combination of the first two views, which believe that the work should have a little creativity and simultaneously reflect the author's style or personality. [5]For the criteria of originality of a short video template, we should start with a short video and clarify the relationship between a short video template and a short video. The low standard of user re-creation means that the originality standard of the short video template should be higher than that of the short video itself. Suppose the originality standard of the short video template is lower or equal to that of the short video itself. In that case, the resulting short
video does not meet the " minimum originality" standard. Such videos cannot be protected by copyright law. Of course, the protection standard of short video templates should be reasonable, as short video templates can carry a wealth of information and assume multiple functions, such as cultural dissemination, socialization, etc. A higher protection standard will counter copyright law's purpose to encourage creativity and promote cultural prosperity (Wu & Wang, 1999).
In this case, the court started from the balance between the personal interests of the copyright owner and the public interests. It held that the short video template relied on the short video platform to produce, which has the characteristics of short duration, distinctive style, prominent social attributes, and simplified production process, and therefore should not adopt an excessively high judgment standard in judging whether it has originality. The author agrees with the court's reasoning that the determination of the originality standard should be based on the principle of balancing interests and finding commonality between the producer's personal interests and society's public interests. Therefore, the author believes that as long as the short video template reflects the author's individuality and low level of intellectual creation in the content, it is considered to have originality under the premise that the work is the result of the author's independent creative work. The originality requirement is met.
6.2 Considerations for determining the originality of short video templates
In this case, the defendant argues that the video template does not meet the originality requirement because the short video template uses public elements and is too short in length.
However, these two reasons need to be more convincing. Generally speaking, originality refers to "intellectual creativity." The expression can reflect the author's intellectual judgment and choice. Originality is closely related to the space of intellectual creation. If work is done mechanically by merely relying on rigid rules, even if the worker needs to have specific skills or knowledge, even if such skills need to be cultivated for a long time to obtain, the result will not have originality. The short video template uses many overt elements, such as background music, animation effects, pictures, special effects, etc. However, the use of public elements does not affect the author's intellectual creation space, how to combine, display and arrange these elements to express the author wants to express theme of ideas, which requires the author's intellectual judgment, the results of different people must be different, the effect is also bound to be very different, the author's choice and arrangement of these public elements is precisely its "intellectual creativity The author's choice and arrangement of these overt elements is precisely the manifestation of his "intellectual creativity". If the use of overt elements is used to deny the originality of the work, then I am afraid that all compilations will not have originality. Again, length is "length" for short video templates. However, length is always one of the considerations of originality, not the determining factor. For example, a short poem of about 100 words, as long as its expression differs from the existing content, meets the requirement of originality and constitutes a written work. I endorse the reasoning of the Beijing Internet Court in its judgment in the case of Shake-yin Short Video . HUOPAI Small Video - the length of the video is not necessarily related to the determination of originality. The length of the video is not necessarily related to the determination of originality. Therefore, using public elements and their short duration can acknowledge the originality of a short video template.
The World Intellectual Property Organization defines the concept of originality as "a work that is the author's creation and is not copied at all or substantially from another work." The court clarified the criteria for judging the originality of a short video template. Secondly, the creativity of the video template should be considered. In other words, the two factors of
"originality" are "original" and "creation." "Originality" requires that the short video template
should be done independently by the producer, not a copy of anther's work, which is easier to prove in judicial practice; "creativity" is to determine whether the template is highly creative intellectually from an objective aspect because different people can find new ideas in the expression. The following analysis will focus on determining the creativity of the short video template.
The consideration of short video creativity must be distinct from the constituent elements of the short video template itself. The objective elements are the existing elements, such as background music, animation stickers, special effects, and filters. Subjective elements refer to the video theme, expression style, content presentation, and the selection and arrangement of objective elements. Taking the template in question as an example, the objective elements in the template include background music, animated stickers such as rainbow, love, stars, and warm white filters. The subjective elements include the theme of "love expression," the plot from inner hesitation to the determination to harvest happiness, and the arrangement of various animated stickers reflecting the heartbeat. At the same time, the background music changes with the ups and downs of different stages of the state of mind.
In this case, the court found that the short video template in question was creative in terms of the plot arrangement, the combination of images, the expression of emotions, and the presentation of style. These factors are all subjective factors of the short video template, and the consideration of the originality of the short video template should also be determined from the subjective aspect. Because, in just a few dozen seconds of video, the unique plot arrangement and distinctive style of the picture is the most direct manifestation of the producer's intellectual creation, is the essential feature to distinguish from other works, but also the ablest to reflect the creator's personality and emotion. To some extent, subjective factors set the overall tone of the video template. First of all, the video maker needs to think about the idea that the template wants to express.
Based on this, the maker selects and matches elements such as stickers, special effects, and filter animations and coordinates the arrangement, order, and duration of various objective elements according to his understanding and certain logic. Making short video templates requires a lot of thinking and intellectual input from the producer, which is the crystallization of his wisdom and reflects his distinctive personal style. As for objective elements such as background music, stickers, and special effects, their fundamental role is to serve the theme and style of the video, which is the choice of subjective factors to highlight the performance.
Moreover, although they have specific differences, they are not the essence of the originality of the short video template. The production of short video templates must be distinct from the elements produced by various existing video production platforms. However, each template maker can express different themes and feelings through the same or similar elements to achieve a very different style of video effects. Therefore, we should focus on the connection between the creator's subjective emotion and individual expression to determine the originality of short video templates. As long as the creator is independent and can
Short video templates that reflect their personality and style enough should be protected.
7. Conclusion
The rapid development of the short video industry has led to the development of major short video companies that have developed the corresponding short video editing software and short video templates as an emerging product of the Internet era. There are many legal (Wang, 2009).
The protection of short video templates is closely related to the future development of the short video industry, so it should attract the attention of academic and practical circles. Based on the
"First Case of Short Video Template Infringement Dispute," this article clarifies the attributes of short video works, the standard determination of originality, and the consideration factors of originality determination, clarifies the work type of short video templates. Moreover, it explores the consideration factors of short video templates constituting works from the short video templates themselves. It shows that short video templates are copyright-protected works and should be protected by copyright. It also clarifies that short video templates are copyright- protected works and should be protected by copyright to facilitate the healthy development of the short video industry.
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