Beijing Internet Court: whether a short video is original or not has nothing to do with its length

Do you have TikTok on your phone? Well, this Kat does – only, she has the Chinese version: Douyin (‘抖音’, which literally means ‘shaking sound’). 

Launched in September 2016, Douyin rapidly gained huge popularity. By December 2018, Douyin had 250 million average daily active users and 500 million monthly active users in China (source: 2018 Douyin big data report). 

The success of Douyin is no surprise. It provides a much easier way for users to express themselves: no computer or laptop is required – a mobile phone and an app are sufficient – and users can freely add music or ‘special effects’ from an in-app library to make their video more appealing. In addition, Douyin videos are normally maximum 15 seconds in length, which allows users to post or view videos much faster than on other video sharing apps. 

With its fast-emerging development, Douyin is starting to face some legal challenges, which, of course, include copyright issues. Earlier in March, this Kat introduced the ‘The 10 Highlights of Copyright in China 2018’, in which the seventh highlight related to a copyright case involving Douyin: 

7. Beijing Internet Court hears the first copyright case 
The Beijing Internet Court was established on 9 September 2018. The first case heard by the Court was a dispute in relation to the rights to distribution through Internet between short video streaming platforms Douyin and Huopai. The case was also the first in China in which a platform helped users defend their rights. Douyin requested the court to order Huopai to stop the infringement, apologise, and to pay a fine of CNY 1 million. 
The case is not final yet. One significance of the case was that the Court confirmed short videos could fulfil the originality requirement. 

This case has now been finalized and selected as one of The Top Ten IP Cases of 2018 in China. 

Background 

The plaintiff, Beijing Weibo Shijie Technology Co., Ltd., is the operator of Douyin, whilst the defendants, Baidu Online Network Technology (Beijing) Co., Ltd. and Baidu Wangxun Technology Co., Ltd., run Huopai – a similar video-sharing platform on mobile phones. 

In May 2018, ‘Black Face V’, a popular ‘Douyiner’ with 26.37 million followers, posted a 13-second video entitled ‘I want to tell you’ on Douyin, in which the watermarks of ‘Douyin’ and ‘ID: 145651081’ were embedded. 

Later on, an individual with ‘ID451670’ re-uploaded the same video on Huopai, without showing the said two watermarks, and provided download services. The plaintiff argued that the video made by ‘Black Face V’ should be subject to copyright protection, the result of which meant that the defendants’ unauthorised distribution and watermark-removal amounted to infringement.

For better reference, the video in discussion is presented below (it can also be watched via this link): 

The video was made in memorial of the tragic Wenchuan earthquake happened on 12 May, 2008. A rough translation of the gestures is: '512 (12 May), 10 (years), prayer, heart'. 

The bone of contention: originality and the length of short video 

(Case reference: [2018] Beijing 0491, First Instance Civil Judgment No. 1)

The defendants argued that, in essence, the video in dispute should not be considered a ‘work’, as defined in Chinese copyright law, due to its lack of originality. At a mere 13 seconds, the length provided very limited space for creativity, not to mention that there had been many other short videos made around the same theme (the tenth anniversary of the Wenchuan earthquake); and with regard to the cut-out of the black silhouette, this could hardly fulfil the originality requirement for works created by a process similar to cinematography. 

The Court opined differently: 

(1) The length of the video did not necessarily relate to creativity. Objectively speaking, if a video was too short, it could be difficult to form an original expression. However, some authors are still able to achieve originality; in which case, the shorter the video, the more difficult it was to be original, and so the more likely it was that the finished work would actually be a creative one; 

(2) Although the video at issue made use of some ready-made materials, the arrangement and selection of them, together with its presentation, contained many aspects of the author’s intellectual labour, and was completely different from the other videos on the same theme. It therefore represented an individual expression; 

(3) The video resonated emotionally with audiences. On the tenth anniversary of the Wenchuan earthquake, the video conveyed a consolation of rebirth, a warm blessing, and a forward force – this spiritual enjoyment was also evidence of creativity. 

The Court thus ruled that the video at issue fulfilled the requirement of originality as a work created by a process similar to cinematography, as stipulated in Article 15 of the Interpretation of the Supreme People's Court Concerning the Application of Laws in the Trial of Civil Disputes over Copyright: 

For the works created on the same theme by different authors, the expressions of which are creative and independently completed, the authors enjoy independent copyrights in relation to the corresponding works. 

The first judgment has now come into effect, as neither party appealed. 

Comment 

This case was highlighted as the Top 1 ‘Hot Spot Case’ on the Beijing Internet Court’s one-year anniversary celebration page (here), with an introductory title of ‘Whether short video is original or not has nothing to do with its length’. of course not, This case reiterates the Court’s favourable attitude towards the short video industry, as noted in the judgment itself: 

The creation and dissemination of short videos is conducive to the public’s diversified expression and the culture prosperity. Therefore, when judging whether a short video meets the creativity requirement, as long as it can reflect the individual expression of the producer, it can be considered creative – the height of creation should not be demanding. 

Photo courtesy: Oriental IC

The video presented in this post was downloaded from Douyin.