On The Fair Use Of Original Works In Clips From Movies And TV Series In Short Video Era

Short videos have become one of the most popular forms of cultural entertainment in our era,where clips from movies as well as TV series are widely favored on various social media platforms.It is of great practical significance to study the use of original works in movies and TV series clips,analyzing whether it constitutes fair use,in order to abide by the basic principle of copyright protection with the aim of protecting copyright owners while encouraging creativity and innovation based on original works.This article is divided into three chapters,which clarifies definition,classification,industry characteristics,works attributes and causes of infringement of movies as well as TV series clips,and,in accordance with the "three-step test" stipulated in international treaties on intellectual property rights,the "four elements" standard of the United States Copyright Act,fair use provisions of Chinese copyright law,as well as relevant judgements,analyzes in depth issues on determining the fair use of original works in clips from movies and TV series.The article aims to fill in the gaps in existing researches,form an academic research report based on characteristics of contemporary short video industry,international rules and its domestic application,relevant judicial practice,with fair use in clips from movies and TV series as the research object,so as to provide useful references for judicial practice.The first chapter of this article,aiming at clarifying basic copyright concepts involved in movies and TV series clips,consists of four subsections,which provides reference for analysis in the following chapters.The first section starts from the article title itself,where concepts of short video and video clip are formulated.Then,movies and TV series clip is interpreted as a video with a duration of no more than 10 minutes that contains part of the original movies or TV series,which is edited through mobile Internet devices and uploaded to short video platforms,then spreads on social media.Characteristics and development of this industry are also outlined.The second section classifies movies and TV series clip into three categories based on video content:trailer-like clips,commentary and secondary creation,with explanation of how original works are used respectively.Sections 3 and 4 focus on basic copyright issues related to movies and TV series clips,including their work attributes and causes of infringement.The author argues that except for trailer-like clips,where originality is absent,all other types of clips belong to copyright works and may infringe copyright of original works.This leads to discussion on the boundary of copyright protection and analysis on the fair use of original works in movies and TV series clips in subsequent chapters.Chapter 2 discusses the use of original works in movies and TV series clips under the framework of three-step test in order to decide whether it constitutes fair use.Firstly,the author compares the provisions of international treaties on three-step test and its application in current Chinese legislation.Then,the topic is analyzed based on provisions above and relevant judgements,with types,characteristics and marketing models of movies and TV series clips taken into consideration.Among them,as to whether the use belongs to certain special cases,the author focuses on whether the use is specific and exceptional,as well as whether there is a correlation between the way and purpose of reproduction;in terms of whether the use conflicts with the normal exploitation of original works,the author argues that whether economic interests are harmed should be considered,including the substitute or negatively substitute role that the clips may play;as to whether the use unreasonably prejudice the legitimate interests of the author,the analysis pays close attention to artistic expression,author’s reputation,etc.,not limited to economic gains.The third chapter analyzes the fair use in clips from movies and TV series from the perspective of four elements.The first section briefly introduces the legislative process and judicial practice of four elements in the United States,as well as summarizes their reflection in Chinese legislation.The second section researches the topic based on the content of four elements along with practical views both in China and overseas,taking into consideration types,characteristics and marketing models of movies and TV series clips.In terms of the purpose and character of use,the author believes that the legislative purpose of fair use and bad faith of video makers shall be considered,whereas commercial nature and public significance of the use need to be reviewed separately;as for the nature of the used works,it is reasonable to divide the original movies and TV series into those containing a large number of factual contents and those having a higher degree of originality,the copyright of which should be protected to different extents;when judging the amount and substantiality of the portion taken,the "quantity" and "quality" of the used part shall be analyzed separately before making the correct conclusion,among which,the quality of the portion contributes more to the final judgement;as for the effect of use upon the potential market,the last two steps of three-step test may be referred to,with gains and damages to the market interest or value of the original works distinguished.The third section further analyzes the fair use of original works in movies and TV series clips in terms of transformative use,the frontier theory of fair use.The author argues that characteristics of transformative use in thematic spoiler and commentary clips are more obvious,while secondary creation clips are even more distinctive when it comes to transformative use features.However,transformative use should not be adopted as an independent criterion,and it must be combined in three-step test or four elements so as to reach a final conclusion on whether clips from movies and TV series constitute fair use of original works.