论二次创作短视频引发的权利冲突与救济

随着网络数字技术的快速发展,视听作品的创作方式和传播途径较之前发生了巨大转变,网络短视频应运而生,成为继文字、图片、音乐之后风靡全国的娱乐新形式.二次创作短视频在短视频行业中占有重要地位,但在现行著作权法规定之下,二次创作短视频却引发了一系列权利冲突问题.高举“合理使用”的“免死金牌”,二次创作短视频从未停下脚步.纵观合理使用的内涵与外延,将二次创作短视频完全纳入合理使用辐射范围不切实际,纠纷解决过程困难重重.基于公平与效率原则,兼顾在先作品著作权利与二次创作行为的积极性,建议在司法实务中,运用“四要素检验法”帮助判断是否构成合理使用,构建新型著作权集体管理组织和区块链智能合约,力求在源头解决权利冲突.

Analysis of the Right Conflict and Relief Caused by the SecondCreation of Short Video

With the rapid development of network digital technology, the creation and dissemination of audio-visual works have changed greatly. Short video has appeared, becoming a new form of entertainment after words, pictures and music. The second creation of short video plays an important role in the short video industry, but under the current copyright law, the second creation of short video has caused a series of rights conflicts. Holding the "gold medal for exemption from death" of "reasonable use", the second creation of short videos has never stopped. Looking at the connotation and extension of "reasonable use", it is unrealistic to bring the second creation of short videos into the sphere of reasonable use, the dispute resolution process is fraught with difficulties. Based on the principles of fairness and efficiency, taking into account both the right of prior works and the enthusiasm of secondary creation, this paper suggests that in judicial practice, the "four-factor test" should be used to help judge whether reasonable use is constituted, new collective management organization of copyright and block chain intelligent contract should be constructed to solve the conflict of rights at the source.