Research On The Judicial Identification Of Audio-visual Works

The change of "film works and works created by similar film making methods" into "audio-visual works" is a major change in the copyright law of the People’s Republic of China revised in November 2021.This amendment broadens the coverage of such works,but retains the binary structure of "audio-visual works" and "video products",and the problem of identifying audio-visual image works still exists.At present,there are disputes over the division between works and products in the theoretical circle.The research on audio-visual works is mainly aimed at a specific category of audio-visual works,and there are few results on the overall level of audiovisual works from the perspective of system.Through the analysis of 155 relevant cases,it is found that the number of cases related to the identification of audio-visual works shows an upward trend.The court’s identification of different types of audio-visual works is mainly reflected in three aspects:the different understanding of the constituent elements,the vague identification of the originality standard of audio-visual works and the complexity of the examination of the originality elements of audio-visual works.These problems have their institutional roots.On the one hand,the connotation and extension of audio-visual works are not clearly defined in China’s copyright law,and the originality standard is not clear on the basis of establishing the dichotomy legislative model.On the other hand,China’s judicial interpretation lacks appropriate guidance on the originality elements of audio-visual works.Based on the theory of dichotomy between image and content,the definition of audio-visual works should start from its essential characteristics and pay attention to the visual,listening and continuous image itself.Therefore,the requirement of "shooting on a certain medium" must be deleted,the requirements for the production method and fixity of audio-visual works must be excluded,and the scope of audiovisual works should be avoided from being artificially limited.Not demanding the height of creation,taking "personalized expression" as the judgment basis for the originality of continuous pictures.This approach follows the relationship between copyright and neighboring rights,and is a general and special legislation.It is operable.While returning to the basic principles of copyright law,it can also respond to the urgent needs of the current development of audio-visual industry.Considering the integrity of the system,audio-visual works are different from other works.On this basis,due to the diversity of types of audio-visual works,different types of audio-visual works have different original elements.The complexity of original elements will make it difficult for judges to judge in the trial and bring litigation burden to the parties,which determines that the original elements of audio-visual works should be determined from the overall level.Based on the producer’s contribution to continuous images,the originality elements of audio-visual works should be divided into three links: process event visualization,image shooting and editing,and the contents of discontinuous images,such as music,interpretation and plot,should be excluded from the originality elements.In addition,in view of the current identification difficulties of different types of audio-visual works,we should refine the rules according to the characteristics of different types of audio-visual works,and build a set of feasible judicial identification rules of audio-visual works,so as to provide clear guidance for judges to try such cases in practice.