Inevitable Substitution of Audiovisual Works for Video Products

Yue Lihao,[Copyright]

 Yue Lihao

Senior Judge of Intellectual Property Tribunal of Guangdong High People's Court

Origin of video products a hidden problem left from enactment of the law
The Copyright Law of 1991 distinguishes between video recording works and video products. The former is listed as a type of works along with movie and television works; 1 whereas video product is provided in the chapter of neighboring rights. The first revision of the Copyright Law in 2001 introduced the concept of "cinematographic works and assimilated works expressed by a process analogous to cinematography" (cinematographic works), which is in line with international treaties by reference with Berne Convention requirements,2 and hence the concept of "video recording products" remained under the Copyright Law in China.
Under the current provisions of the Implementing Regulations of the Copyright Law (the Regulations), the cinematographic works refers to work of a series of pictures fixed in certain tangible media, accompanied or not by a series of sound, to be displayed by the aid of projector devices or disseminated by other means. Whereas video recording products refers to recordings of continuous images or graphics with or without accompanying sound other than cinematographic works.3 By such exclusionary definition, it is hard to distinguish video recording products from cinematographic works. Therefore, judges in judicial practice would frequently rely on the originality provision,4 and distinguish by degree of originality between cinematographic works and video recording products—the less original, the less likely to be categorized within the protective range of cinematographic works; the more original, the more likely to be protected under cinematographic works and less likely to be categorized into video recording products.
This has become a commonly accepted definition among scholars and judges. For example, the Guangdong High People's Court in 2012 issued a litigation directory, explaining in detail the method of defining cinematographic works and video recording products originality is strongly required for cinematographic works which generally feature unique personal characteristics of cinematographic producer or director; adopting photographic technique of using script as blueprints, and employing editing method of montage; with cooperation of actors, screenwriters,  photographers, editors, costume designers, musicians, gaffers, makeup artists, and set dressers, etc.; having relatively significant amount of investment and so on. In shooting dramas,, sketches, vaudevilles or other performances, the photographer would not, by zooming, editing, repositioning, artistic designing at the beginning or end, or relocating the scenes from indoor to outdoor, etc., produces cinematographic works, and the photographic products should be listed as video recording products. The MTVs with following features should be recognized as video recording products where there is no individualized creation of directors or producers, or no producers' information; where there is no plot or only a simple replay of a singer's performance with accompaniment; where the only purpose is for karaoke rather than for display in cinemas or television stations; wherein lyrics and music play the major role, with major contribution from lyric writers or composers; where there is limited financial investment, etc.5
On the face of it, it appears to be practical to distinguish between cinematographic works and video recording products from their originality, but tends to lead to different results due to inconsistent subjective standards followed by the judges. What is more troublesome is the neighboring rights which refer to the secondary creative work of a disseminator in disseminating a work. Video recording products are listed in the chapter for neighboring rights of the Copyright Law, which intrinsically regulate the dissemination of existing works. In reality, video recording products may cover not only using others' existing works, but also works of original creation (such as performances, interviews, competition, animals, sceneries, and other original recordings by technical means). Such video recordings are more than just the dissemination of existing works, and their productions do not depend on existing works. That these recording products are categorized as video recordings is the hidden trouble from the moment of enactment of the Copyright Law. In the 1991 Regulations, it explicitly indicates that the mechanical recordings of performances or sceneries shall not be recognized as cinematographic, television or recording works. 6 Though this term has been deleted from the 2002 revision, it has deeply rooted in judicial practice that recordings of performances, sports competition, and natural sceneries are non-cinematographic works.
The mystery of video recording products competing interests between droit d'auteur system and the copyright system
The copyright law may be divided into two theories: protection of the author, or droit d'auteur (continental law), and the protection of exploitation of works (Anglo-American law). The Copyright Law in China is clearly influenced by the droit d'auteur theories. The continental law countries play emphasis on the protection of the rights of the authors, and built the system of droit d'auteur. 
Germany, e.g. is a typical continental law country which adheres to the unification of moral rights and property rights whereby the author of audio visual work is strictly defined, who is treated as an author only when creating a work. Moreover, the mere producer of an audio visual work can never be an author, and may never hereby attain the identity of an author. Therefore, the author of an audio visual work must only be who actually creates the work, and a producer merely obtains the exclusive rights of reproduction, publication, etc. by getting the permission from the author.7 The German practice of protecting video recording producer's right as neighboring rights whereby to categorize the less original video recording products in the scope of neighboring rights as moving images which, explained by Prof. Manfred Rehbinder, may be understood as putting together a series of images with sound effect, which is not an original creative work, such as filming sports events, natural phenomena or military activities, etc.8 The practice in our country to categorize the less original recording products into neighboring rights, with the terminology of video recording products, is consistent with the German practice.
Originality is a unique concept in the droit d'auteur theory, which is under the influence of transcendentalism and the aesthetics if romanticism. The copyright law under droit d'auteur theory takes the work as the representation of the persona of its author, lending a strong humanistic hue to originality. The neighboring rights are derived from the concept of originality, are the institutional creations to maintain which the integrity of the legal theory. 9 They are aimed at protecting the interests and efforts invested in the dissemination of works, which become the significant part of the droit d'auteur of copyright law for performer rights, video recording producer rights and dissemination rights as a result of the emergence and development of new dissemination technologies.
In comparison, Anglo-American countries place more emphasis on the interests derived from the works, and build the copyright theories around the exploitation of the works. Under this theory, considering capital investment factors, the right for producers to acquire works according to their investment and to receive fair reward from the works will help promote the creation and exchange of audiovisual works. Therefore, the protection of producers' interests seems to follow under Anglo-American law. The UK Copyright Law provides an author is one that creates the work for which the original copyright belongs to. In cinematographic works, it is the producers and directors that create the works. In the United States, audiovisual work is considered a work for hire, and it is defined in the Copyright Act that the employer who is hired for the work is the author, entitling to original authorship. In other words, an American movie producer as an employer could be the author, and entitled to the original copyright for audiovisual works.10 Contrary to droit d'auteur countries, the copyright law countries treat works completely as a form of property with no neighboring right concepts, and as such the originality requirement is low. The U.K. Copyright Committee in its 1987 comment for amendment of the copyright act pointed out, Protection of any neighboring rights should be of no difference than protection for work of authorship. In other words, that an author creates a work, that a performer performs the work, or that a recordist records the work, it is all the same the creation of a work with no fundamental distinction, and should be treated equally for copyright protection.11
Ever since the emergence of the copyright regime, the droit d'auteur system with the neighboring rights (including video products) and the copyright system without neighboring rights live peacefully together, accommodating each other without too much trouble, until the beginning of this century.
The problem of video products: the we-media impact upon neighboring rights
The copyright law is by all means one of the bodies of law most closely associated with technological improvement. Paul Goldstein once commented, From the outset, the copyright is the son of technology. 1 2 After prompting copyright laws, technology continues to impact on the change of copyright law by promoting more extensive dissemination of works.
After the turn of the century with the drastic improvement in video, storage and display functions in cell phones and other electronic devices, the internet leads to substantive jump in the speed and scope for information dissemination, promoting the development of video shares and we-media. Production of video products involves very low cost, without any special qualification and approval process, easily accomplished and published by any non-professional that may turn himself into a reporter, a photographer, a director, an actor, a screenwriter and an investor, by means of a computer or cellphone. The impact and potential economic profit are also stunningly surprising a few seconds of a cute kitten will melt the hearts of the public, attracting tens of thousands of hits; a rare snow leopard caught on video in the wild might easily produce millions of hits. As more and more recording products are made without using any existing works, the distinction between cinematographic works and video recording products becomes increasingly blurred, washing away the foundations of the neighboring rights regime, and grilling the droit d'auteur theory for the bottom line of originality. Why would a footage of animal activity in the wild be protected as cinematographic works if it has been shot by a photographer with editing, but the same would only be a video recording product if captured in a field with infrared camera, even if for a considerable commercial value?
The concept of originality has in fact been questioned ever since the beginning. Some scholars point out that the standard for originality has never been an objective and fair evaluation mechanism, but merely a tool for balancing different interests, and therefore not a wise choice for the attempt to define whether video recording products would qualify for works by the originality standard. 13 For example, the judgment of originality for a video recording product not based on others' works is fundamentally a matter of subjective opinion. No matter who did the shooting or photographed what, a work would always involves a certain amount of differentiated choices, editing and re-creation, and how much differentiation is enough to constitute originality in the legal sense is entirely a subjective matter of personal choice and value judgment.
The standard for originality is a transcendental value judgment by which any works determined to be original are transcendentally judged to have higher artistic value. That a video recording product in a droit d'auteur regime is considered unoriginal because it is usually taken as having limited artistic value, and therefore is inconsistent with the romantic nature of authorship. The artistic value, nevertheless, should not be a factor for copyright consideration. Though the graffito by a child is no comparison with that of Picasso, they both are works deserving the copyright protection. For the same reason, the artistic value of a video recording product should be an academic question to be judged by an academic scholar, and its economic value ought to be judged by the market to form a reference for commercial valuation or determining the amount of damages. Video recording products with lower economic value will be naturally eliminated from the market, while the ones of higher economic value will certainly remain.
Relatively speaking, originality is viewed more rationally in a country adopting copyright regime, which in a deeper sense is recognized as a property system so as to focus the statutory rules and institutional arrangement in practical operations. American judicial practice, e.g., maintains a very low requirement for originality which is satisfied with any selection of video recording equipment, lenses or locations. 14 Such originality requirement was confirmed by the legislative report of the US House of Representatives.15 The live broadcast of sports events is protected under American Copyright Law precisely because it satisfies the originality requirement. But in China, the nature of the sports coverage not only stirred up a huge theoretical turmoil but also wound up in completely different judicial results.16 In the view of the author, the droit d'auteur countries are long inclined to the hostile attitude toward mechanisms and crafts, mostly holding that video recording products lack originality because the recording is obtained mechanically and automatically.17 Yet, if originality is denied to video recording products simply because of the subjects or objects of the products, it has doubtlessly put the originality myth to the extreme. For this reason, it would be more realistic to study the institution of the copyright regime to solve the dilemma for the legal protection of video recording products in the we-media environment.
Final destination of video recording products inevitable substitution by audiovisual works
The phrase "audiovisual works" in substitution of movie works or other works made by cinematographic process is coined with the technological development and relevant interests. It is gradually accepted by the copyright laws of various countries in the world, which is more concise for legislative language. The World Intellectual Property Organization (WIPO) once attempted to streamline the cinematographic works and video recording products by using the concept of audiovisual works. In April 1989, WIPO sponsored the International Treaty for Registration of Audiovisual Works, which defines the audiovisual works as the works of a series images with or without accompanying sound which is fixed on certain media and reproducible for people to see or hear.18 The US Copyright Act of 1976 interpreted "audiovisual works at the beginning, outlining its scope to cover films, television programs and video works based on images."19
Copyright law regulates the ownership and exploitation rights of a work, and it is property law in nature. The legal protection of audiovisual works is rooted in its current or potential economic interests. In the environment of we-media, video recording products are made every day involving tremendous efforts of their producers without relying on others' works. But in China's judicial practice, most of such recording products are not protected as audiovisual works, and the producers could only enjoy limited rights for video recording products under neighboring rights. The deficiencies of the personal right in their copyright make it impossible to sufficiently realize their economic benefits, which all will dampen their recreational spirit, and run counter to the fundamental purpose of the copyright regime to encourage for more creations. Therefore, it is of primary significance to give recognition of audiovisual work status to video recording products without using others' works, according their authors thereby complete personal and property rights for authorship.
The concept of audiovisual works is currently absent in China's Copyright Law, but it has been introduced into the draft for the third revision of the Copyright Law. Meanwhile, the terminology of video recording products has been deleted from the draft.20 A number of scholars have pointed out that audiovisual works, in comparison with movie works and cinematographic works or video recording products, covers a wider range, and is inclusive of works of different artistic expressions.21 The author fully agrees with such progressive measures, and firmly believes the installment of the institution of protecting audiovisual works will play an active role in promoting the socialist cultural cause in our country.
(Translated by Zheng Xiaojun)  

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