The Application and Refinement of Fair Use Principles in China's

Secondary Creation Short Video Sector

Qihao Gong

, Chenyu Liu

and Zihan Wang

Faculty of Law, Nantong University, Huaian, China

School of Business, Xianda College of Economics and Humanities Shanghai International Studies University, Shanghai, China

Faculty of Law, Jiangnan University, Wuxi, China

Keywords: Secondary-Created Short Videos, Principle of Fair Use, Copyright Protection, Internet Culture.

Abstract: With the rapid advancement of internet technology and the continuous strengthening of the digital trend, short

video platforms like Douyin and Weibo have risen rapidly, becoming new channels for content dissemination.

Short videos created through secondary creation, such as adaptation, splicing, and editing, meet the

personalized needs of the audience by re-creating original works. However, the issue of copyright

infringement in secondary creation short videos is becoming increasingly prominent. How to protect the rights

of the original authors while promoting cultural innovation and freedom of expression has become an urgent

problem to be solved. This article aims to conduct an in-depth study on the fair use of secondary creation short

videos, proposing practical suggestions to find a balance between protecting the rights of the original authors

and promoting cultural innovation.

INTRODUCTION

With the rapid progress of The Times, the trend of

digitalization has been significantly enhanced, and

traditional media such as newspapers and radio and

television are gradually being replaced by digital

platforms and emerging communication methods

such as Weibo and Douyin. In recent years, many

network short video applications have emerged, the

capital market's enthusiasm for the short video field

continues to rise, the number of content creators in the

short video industry has achieved a blowout growth,

marking that the industry is entering a new stage of

rapid development. According to the data provided by

the 2023 China Short Video Industry Market

Operation Report, the size of China's short video

market has reached 376.52 billion yuan in 2022, an

increase of 83.6% compared with the previous year,

and it is predicted that the figure will jump to

1,066.08 billion yuan by 2025. At the same time, the

54th Statistical Report on the Development of China's

Internet pointed out that as of June 2024, the number

of short video users in China has reached 1.05

billion, accounting for 95.5% of all Internet users,

and it is expected that this user group will continue

to expand in the future, and the short video platform

also shows a rapid growth trend, especially on the

Douyin platform. 2023 Film and television

entertainment short video account fans growth rate is

the most significant(Wei, 2024).

Driven by these new media, the secondary

creation of audiovisual works, including adaptation,

splicing, editing and other forms, has become a new

trend in the field of network communication.

Secondary creation refers to the re-creation of a single

or multiple works by the audience based on their

personal interests and emotional preferences. In this

process, the personal views and creations of the

creators are integrated, and new forms of works are

spawned. Second creation of short video refers to the

short video produced by the publisher using the

original video materials, such as film and television

comprehensive, animation, sports competition and

games, etc. Short videos have the following features:

They are based on the original video material; The

duration is short, usually controlled within 3 minutes;

Use a lot of editing, dubbing techniques(Zhang et all,

2023).

Second creation of short video range is wide,

covering all types of works. As a new phenomenon of

media culture, it breaks the boundary between content

consumption and content production, promotes

the deep involvement and personalized interpretation

of cultural products by individuals, and effectively

meets the increasing personalized and deep-level

needs of audiences.

146

Gong, Q., Liu, C. and Wang, Z.

The Application and Reﬁnement of Fair Use Principles in China’s Secondary Creation Short Video Sector.

DOI: 10.5220/0013974400004912

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st International Conference on Innovative Education and Social Development (IESD 2025), pages 146-150

ISBN: 978-989-758-779-5

With the continuous expansion of short video user

base and market scale, the conflict of interest on the

second creation of short video gradually surfaced.

Although the China Network Audiovisual Program

Service Association has issued the "Rules for Online

Short Video Content Review Standards" on

December 15, 2021, which clearly prohibits

unauthorized cutting and adaptation of audiovisual

programs and their clips, such as movies, TV dramas,

and online movies and TV dramas, relevant disputes

still occur frequently due to the limited binding force

of the regulations(Cai, 2024). However, some

secondary creators arbitrarily dispose of films, TV

plays and other works without authorization, or

convert them into part of their own works, which

infringes on the copyright of the original authors and

constitutes double damage to the rights and interests

of the original works and their creators. Therefore, in

the process of promoting the future development of

secondary creation, it is necessary not only to protect

the audience's freedom to deconstruct and recreate the

original text, but also to effectively protect the

creator according to law, so as to balance the

relationship between innovation protection and the

rights and interests of the original.

As a new and dynamic force, the second creation

of short video has been widely penetrated into our

daily life and become a universal cultural

phenomenon. As a new form of cultural expression,

the second creation of short video is deeply rooted in

the Internet, and the Internet also provides fertile soil

for its prosperity.

However, the academic research on the copyright

infringement of the second creation short video is still

insufficient, and there are many mysteries and

disputes to be solved. This paper aims to fill the gap

in this research field and deepen the cognition of

short video copyright infringement. Through a

comprehensive and systematic study, this paper will

further reveal the intrinsic nature and operation rules

of the infringement problem of secondary creation

short video, laying a solid theoretical foundation for

subsequent academic research and judicial practice.

At the same time, the in-depth discussion of the

infringement problem of the second creation of short

video will also reveal the challenges and

shortcomings of the existing copyright legal system

in dealing with this new field. Through the detailed

analysis and conclusion of specific cases, this paper

will point out the limitations of current laws in

defining the scope of reasonable use of short videos

created twice and judging the composition of

infringement acts. These research results will provide

valuable suggestions for improving the copyright

legal system, and promote the legal system to keep

pace with The Times and constantly optimize. In

addition, the research and demonstration of this paper

spans multiple disciplines such as law,

communication, information science, etc., and

requires comprehensive use of multidisciplinary

knowledge and methods for interdisciplinary

research. This interdisciplinary research method not

only helps to deepen the understanding of the

infringement problem of short video, but also

promotes the communication and integration between

different disciplines, and promotes the development

and progress of related disciplines.

APPLICATION OF THE FAIR

USE PRINCIPLE IN THE

INFRINGEMENT DEFENSE OF

SECOND CREATION SHORT

VIDEO

2.1 The Reasonableness of the

Protection of Second Creation Short

Video

As a new cultural phenomenon, the protection of the

second creation short video has great public interest

value. Re-created short videos are often adapted and

innovated on the basis of existing works or materials,

which contributes to the wide dissemination and

sharing of information and enables more people to

have access to diversified video content (Li, 2019).

Moreover, the production threshold of the second

creation short video is low, and its popularization can

enrich the public's cultural and entertainment life. The

production threshold is low, and the general public

can also participate in the creation, which will not

only increase the public's sense of participation in

cultural products, but also promote the overall

cultural literacy of the society(Yao, 2024). Moreover,

the second creation of short videos often contains

comments and reflections on social phenomena,

which can be used as a window to observe and

understand the social dynamics, and play an

important role in promoting public discussion and

improving social awareness.

The protection of re-created short videos can also

promote cultural prosperity. Secondary creation is not

only a re-use of original works, but also a catalyst for

new ones(Xu, 2024) . It encourages creators to

innovate on the basis of respecting original works,

The Application and Reﬁnement of Fair Use Principles in China’s Secondary Creation Short Video Sector

147

which can stimulate more creativity and innovation

and promote the development of cultural diversity.

Through the secondary creation of classic works,

some videos can make traditional culture be accepted

and loved by the new generation in a way that is

closer to modern life, so as to realize cultural

inheritance and development.

The second creation of short videos provides a

platform for ordinary users to express their own

opinions and creativity. The secondary creation of

short videos is an important way for individuals to

express their opinions and emotions, and it allows

creators to freely express their ideas and creativity

without infringing on the copyright of others.

Everyone has unique ideas and creativity, and

through the communication and interaction between

creators with different backgrounds and views, the

secondary creation of short videos helps to enhance

the pluralistic understanding and tolerance of society

and promote the harmonious development of society.

2.2 The Principle of Fair Use Is the

Focus of Tort Defense of Second

Creation Short Video

In the context of the second creation of short videos,

the key to judging whether the video constitutes

infringement lies in whether it can fall under the

scope of the fair use principle. The principle of fair

use is an important concept in copyright law, which

allows the use of a work without the permission of the

excessive restrictions on creation and the free flow of

information. According to Article 24 of China's

works to introduce, comment on or illustrate a certain

issue. The principle of fair use provides a legal basis

for the re-creation of short videos, helps alleviate the

contradiction between information monopoly and

resource sharing, and can promote the healthy

development of short video industry(Dong, 2022).

The determination of fair use has become the core

standard to determine whether the infringement of the

second creation of short video is established. The

application of the principle of fair use needs to

consider many factors, including the purpose and

nature of the work used, the nature of the work used,

the quantity and substance of the used part, and the

impact of the use on the market value of the original

work. In a secondary creation short video, the creator

will often cite snippets of the original work to express

his opinion or comment, in which case such use may

be considered reasonable if the reference is made for

non-commercial educational or critical purposes and

does not cause material harm to the market of the

original work.

However, the principle of fair use is not an

absolute defense, and there is no clear definition on

whether the secondary creation of short videos

constitutes fair use at present. At the same time, the

principle of legal use in China's copyright law also

has some problems.

On the one hand, the fair use system can provide

a legal "safe harbor" for the second creation of short

videos, so as to prevent creators from restricting their

freedom of creation due to excessive worries about

clarifying the applicable conditions and standards of

fair use, the legitimate rights and interests of original

authors can be better protected and unreasonable

damages to the market value of original works caused

by second creation can be avoided(Zhu and Jiang,

2022). Therefore, improving the fair use system is not

only the consensus of the academic community, but

also the key path to solve the infringement problem

of second creation short videos.

IMPROVEMENT

SUGGESTIONS

3.1 Adopt Both "Enumeration" and

General Ways to Supplement the

Deficiencies of Enumerative

Legislation

By setting a series of factors, such as the nature of the

work, the purpose and nature of use, the quantity and

substance of use, and the impact of the original

market value of the work, etc., to comprehensively

judge whether a certain behavior constitutes

reasonable

use (Dong,2022).

Such

a legislative

model can not only better adapt to the diversification

and complexity of the secondary creation of short

videos in the Internet era, reduce the gap in the

application of law, but also more comprehensively

cover the situations that are in line with the original

intention of legislation but are not specified in

practice.

3.2 Build a Clear and Unified

Interpretation Path

By critically absorbing the rational use of the four

elements and the conversion use standard, the four

elements are comprehensively considered. However,

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in the legal order, the four elements rules are located

in the Regulations on the Implementation of the

located in the copyright law, and the legal order of the

four elements is under the "three-step inspection

method". In the application rules of "three-step

inspection law", the first step is "specific and special

circumstances", which is reflected in Chinas law in 12

specific circumstances and one guarantee clause in

Article 24 of the Copyright Law. Four elements rules

main role in out clause "other circumstances of laws

and administrative regulations" to supplement, make

legal reasonable use situation closed become

relatively open, but not on the whole out of the "three

step inspection" applicable order, while ensuring the

stability of the law and do flexible cope with complex

reality requirements(Gao, 2023).

3.3 Optimize the Rational Use Mode of

Secondary Creation Under the

Internet Environment

In the Internet environment, the rational use mode of

secondary creation of short video should pay attention

to balancing the interests of the creator, the original

author and the public. To this end, it is suggested to

clarify the reasonable scope of the use of secondary

creation works based on the types of secondary

creation in the Internet, establish the updating

mechanism of secondary creation to solve the

problem of legal lag, and at the same time ask the

wishes of the original author to ensure that reasonable

use will not infringe on the legitimate rights and

interests of the original author. In addition, the

creators should be encouraged to respect the spirit and

essence of the original work in the second creation, to

avoid causing unnecessary damage to the original

work(Yang, 2023). Through these measures, we can

promote cultural innovation and freedom of

expression while protecting copyright, and provide

legal guarantee for the development of cultural

diversity in the Internet era.

CONCLUSION

Second innovation, as an emerging cultural

phenomenon, has been deep into our life. It relies on

the Internet, gets material and inspiration, and spreads

quickly. But the openness of the Internet could lead

to copyright disputes. Therefore, while encouraging

innovation, copyright and creator reputation must be

protected to balance innovation and protection. The

principle of rational use is the key mechanism to

balance copyright protection and public interest,

especially in the secondary creation of short videos.

Reasonable use shall meet the conditions such as not

affecting the normal use of the original work, not

harming the rights and interests of the copyright

owner, and having the purpose of appropriate

reference. The identification criteria include the

"quality" and "quantity" quoted, the purpose and

nature of the use, and the influence of the original

work. The responsibility of the short video platform

also involves the application of the principle of

reasonable use. However, due to the limitation of

Chinas legislative model, there are

misunderstandings in the principle judgment

standard, and the exercise of discretion is

uncontrollable. Therefore, the application of the

principle of rational use in China is tudied and the

perfect suggestions are put forward.

AUTHORS CONTRIBUTION

All the authors contributed equally and their names

were listed in alphabetical order.

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