Research On Copyright Fair Use In Short Video Creation

Short video is an important form of "user-generated content" in the audiovisual field in the era of digital technology.The appearance of short videos not only stimulates the enthusiasm of the public to create works,but also expands the ways of cultural communication among the public,thus bringing positive effects to the prosperity of the social and cultural market.However,the large scale short video also plagiarized,copied and adapted the original works,which seriously infringed the personal rights and property rights of the original author.The concealment of the infringement of short video and the high cost for the right holders to protect their rights further aggravated the flood of short video infringement.Copyright fair use system is a balance between copyright rights and public interests,and also a yardstick to define the infringement of short video creation.However,the copyright fair use system in China has a certain hysteresis when evaluating the public welfare property contained in the short video creation process,and its lack of openness and the ambiguity of the extension of the relevant provisions often lead the short video into the dispute between fair use and infringement.Based on this,this paper studies the judgment and perfection of copyright fair use in the process of short video creation.The text is divided into four parts:The first part is the basic theory of copyright fair use in short video creation.The short video mentioned in this paper refers to a new video form that can be uploaded,edited and played on various short video platforms and can be Shared in real time,as opposed to the long video,which generally lasts no longer than 5 minutes.Based on the consideration of the utilization degree of short video to existing works and its own creative elements,short video can be divided into two types: simple clip short video and mixed short video.Among them,simple clip short video may have new functions such as retrieval on the whole.From the perspective of theoretical basis,the fair use of existing works in short video creation is the concrete application of the theory of interest balance in copyright law and the embodiment of the constitutional protection of freedom of expression.The second part is about the problem of copyright fair use in short video creation.The judgment of fair use of copyright in short video creation mainly has four dilemmas: the limitation of the reasonable use of closed examples is difficult to deal with the new works or new ways of use including short video;The condition of reasonable use is not clear and it is not operable in practice.It is difficult to establish the limit of "proper citation" in short video creation due to the restrictions of diversified forms of commentary,diversified forms of quoted material and transformational use.The identification of fair use in short video creation only focuses on the direct legal basis and lacks the cognition of relevant factors.The third part is the regulation of copyright fair use rules on short video creation.In the legislative mode of fair use,there are mainly three legislative modes: rulesism,factor doctrine and mixed doctrine.Among them,the compound normative structure formed by the new Japanese law is innovative,which has important reference significance for the open legislation of fair use in China.In terms of the substantive determination of fair use,except China's transformation of the "three-step test method" in international treaties,the four elements theory of American copyright law and the transformational use judgment rule have the most extensive influence in the world.The four factors should be considered comprehensively to determine whether the use behavior in short video creation constitutes reasonable use.It has the advantage of flexibility,but also has the disadvantage of great uncertainty.The rules of transformational use weaken the role of the four elements,which focus more on the investigation of the new value,function or nature in the process of short video creation.The fourth part is the suggestion of perfecting the determination of fair use of copyright in short video creation.From the perspective of legislative perfection,on the one hand,it is necessary to clarify the application of existing legislation to the judgment of reasonable use in short video creation,that is,to regulate the "personal use" behavior in short video creation,reduce the judgment standard of "appropriate citation",and expand the rationality scope of short video creation behavior under the purpose of comment or explanation.On the other hand,it is suggested that on the basis of the framework of the copyright law(amendment draft)in 2014,the provisions of the bottom line should be adjusted to "other situations with the purpose of social public welfare,except for the purpose of cultural communication".From the perspective of judicial perfection,first of all,transformational use should be regarded as an innovation of interpretation rather than the creation of system,and play its role in determining the restrictive conditions of reasonable use.Secondly,the reference to the identification of fair use of works of different nature,the public's demand for the creation of short videos and the law of the dissemination of the works to be used should be taken into consideration in the identification of fair use of copyright in short video creation.