Research On Fair Use Identification Of Secondary Creation Short Videos

On March 2,2023,China Internet Network Information Center released the 51 st Statistical Report on the Development of the Internet,which showed that by December2022,the number in China was 1.067 billion,an increase of 35.49 million compared with December 2021,and the number of short video users exceeded 1 billion for the first time.The user usage rate is as high as 94.8%,and "secondary creation" has become the "traffic password".However,with the rapid development of "secondary creation",the related infringement cases also keep appearing,among which "piracy" is the most prominent.The users of the secondary creation short video randomly edit,cut and transport the contents of film and television works,variety shows,sports events and so on often happen.This has caused a series of infringement problems and disputes,which has seriously affected the long-term development of our short video industry.As the secondary creation of short videos is related to existing works,it is bound to have the risk and liability of copyright infringement.Meanwhile,due to the existence of secondary creation,its infringement judgment is also very difficult.Once it is not handled properly,it will cause great legal risks and interest disputes,and "fair use" has become a defense frequently used in many copyright infringement cases.In essence,the question of whether the use of other people’s works is an infringement can be transformed into a question of fair use.However,in China,there is a considerable lag in the fair use system,because of its content is still not perfect,and the understanding of the relevant provisions of the differences,so that the line between "fair use" and "infringement" blurred.In this context,this paper will discuss the rules and suggestions for the fair use of secondary creative short video in our country’s short video industry from the perspective of copyright.This paper first defines the definition,nature and short videos of secondary creation’s type,and draws out the easy infringement risk.Then,combining with the status quo of tort identification of secondary creative short video,it analyzes the rules of fair use at home and abroad,and finally discusses the perfect opinions on fair use identification of secondary creative short video,hoping to provide a useful reference for judicial practice.Specifically,the first chapter is an overview of the research object of short videos of secondary creation.It mainly clarifies the definition and attributes of short videos of secondary creation,discusses the concept of short videos of secondary creation and whether they may constitute works,summarizes the types of short videos of secondary creation and their possible infringement risks,and concludes that under the condition of satisfying originality,There is still the possibility of infringement of the short-sighted frequency of secondary creation.The second chapter discusses the legislative status and realistic predicament of the fair use system.Through the summary of the judicial practice,it shows the disputes and problems existing in the fair use identification rules.The third chapter is a comparative analysis of domestic and foreign fair use recognition rules from the perspective of legislative mode and adjudication technology,respectively from three legislative modes and two major inspection methods to discuss,hoping to provide reference and experience for the improvement of domestic system through comparative analysis.The fourth chapter puts forward some suggestions on the fair use identification of secondary creation short videos,and proposes a perfect idea of auxiliary judgment based on the three-step test method and the introduction of four-element standard.