Study On Fair Use Of Secondary Creation Short Video

With the development of internet technology and the self-media industry,secondary creation of short videos has gradually become one of the important ways for people to participate in social and cultural life.However,the secondary creation of short videos inevitably involves the use of previous works by others.Whether this behavior is infringement or fair use has received widespread attention from society and academia.Whether the secondary creation of short videos can be considered as fair use requires a legitimate examination.From three aspects of the legislative value of secondary creation of short videos in line with the balance of interests,the protection of the public’s right to free expression and the promotion of social and cultural development,we can demonstrate that it is legitimate to use the fair use to defend.However,the current fair use system in China has significant limitations in determining the fair use of secondary short videos,which are manifested in two aspects:the closed listing of fair use situations and the difficulty in applying appropriate citation clauses.Based on the above two reasons,the "three-step test method" has limited effectiveness in determining the reasonable use of secondary creative short videos.Therefore,there is currently a problem of inconsistent standards for determining the reasonable use in judicial practice in China.Compared to the conservative and cautious three-step test method,the "transformative use" rule derived from the "four element" standard in the United States is more flexible and can better adapt to the rapidly developing network digital environment.However,the "transformative use" rule belongs to a general clause,and it is not suitable to directly introduce it in China’s Copyright Law,otherwise it will lead to the excessive expansion of judges’ discretion and the scope of reasonable use.Therefore,it is necessary to explore how to improve China’s fair use system on the basis of current laws to resolve disputes in the determination of fair use of secondary creative short videos.Firstly,it is suggested to change the existing minimum clauses of the fair use system in China’s Copyright Law to "other specific situations that are in line with social interests",in order to transform the fair use system into an open legislative model;Then,using "competitive use" to determine whether the degree of citation is appropriate,in order to solve the application difficulties of "appropriate citation clauses";Finally,a rule combining the "three-step test method" and "transformative use" was established as the standard for determining the reasonable use of several common types of secondary creative short videos,providing ideas for determining the reasonable use.Therefore,on the basis of the current law,we should explore how to improve the rational use system in order to resolve the dispute in the determination of the rational use of short videos.Firstly,it is suggested that the existing fallback provision of our country should be changed to "other specific circumstances that are in the interest of society" so as to change the reasonable use system into an open legislative model.Secondly,the rule combining the three-step-test and the transformative use as the reasonable use criteria is established,which provides some ideas for the reasonable use of several common types of short videos.