DOI：10.19685/j.cnki.cn11-2922/n.2024.02.014



Abstracts：In the context of the integrated publishing era，emerging technologies for publication and communication，such as the Internet and streaming media，have separated the creation and dissemination of cinematographic works from TV play works.The copyright ownership rules of audiovisual works in the Copyright Law of the People's Republic of China transplant the work made-for-hire doctrine in solving the challenges that the long video industry has posed for efficiency.Such rules of copyright ownership place the profits of the creators in the construction of the contract law，as well as embed the purpose of promoting private autonomy of the Intellectual Property Law in the contracts.However，it does not mean that the solution，in conformity with the long video industry，to grant the copyright of the works to the producers to promote the development of emerging publications and communication has failed.In the absence of the support of detailed rules for copyright contracts，it is necessary to improve the internal and external regulations on copyright contracts，such as the fair remuneration mechanism of the first payment，in order to alleviate the illegitimate loss of interests of the creators caused by the concentration of copyrights in the long video industry and realize the goal of balancing the interests of Intellectual Property Law in copyright contracts.
Key Words：integrated publishing；long video industry；copyright ownership；copyright contract
CLC：D 923　DC：A　Article：2096-9783（2024）02-0139-10
1 Raising Questions
　　The World Intellectual Property Organization（WIPO）defines the copyright industry as a collection of industrial activities that function under the protection of copyright and related rights in its Guide on Surveying the Economic Contribution of the Copyright Industries（2015 revised edition）.The long video industry takes video copyright resources，as core assets，of films，TV series，variety shows，documentaries，and other network videos shot and edited by professional institutions with special equipment in professional places，which is part of the core copyright industry that is wholly engaged in the creation，production and manufacture，performance，broadcasting，communication，distribution，and sale of works and other protected subject matter［1］.In April 2022，the Publicity Department of the Chinese Communist Party issued the Guiding Opinions on Promoting the In-Depth Integrated Development of Publishing，which proposed to build a new publication system in the digital era and strengthen the development of content for in-depth integrated publishing.Integrated publishing refers to a new form of publishing that integrates the publishing business with emerging technology and management innovation.As one of the major economic contributions of the copyright industry，long videos have generally achieved digitalization；for example，the film industry's online release is seamlessly connected with pulling from theaters，which has considerable derivative value for film and television resources.In addition to the conventional cinematographic works requiring licenses for producing movies and licenses for public projection of films，there are also online films requiring licenses for the distribution of network dramas.The integration of business models and digital publishing has further amplified the value of copyright and has also aggravated the separation of the creation process and dissemination.As a result，although the creators are in the primary order of film production，from script to screen，their status in the industry chain is declining.The long video industry is a capital-intensive industry，and the completion of work is usually accompanied by a large amount of investment.The interaction between business rules and creation rules generates a unique type of copyright owner in the long video industry.Whether the understanding of producers and creators is consistent affects the expression of creators.It is of great significance to coordinate the conflict of interest demands among industrial subjects and realize the special effect of copyright rules to provide economic incentives and institutional guarantees，which will promote the integration of publishing industry practice and encourage the sound development of the long video industry.
　　Resources controlled in many cases by individuals thwart the promise of a new technological paradigm，and the development of emerging publications has also led creators to waive property rights.Article 17，Section 1 of the Copyright Law of the People's Republic of China（hereinafter referred to as Art.17.1）stipulates the copyright ownership of cinematographic works and TV play works in audiovisual works，which shall be enjoyed by producers.Through the legal formulation of copyright rules，investors who produce the non-creative labor in the process of dissemination of works own the overall copyright of the works.The creators transfer their creative labor to the producers and enjoy limited moral rights and property benefits from the works.The remaining rights are distributed to all participants in screenwriting，shooting，distribution，projection，and other activities upstream and downstream of the industry chain.In the course of many amendments to the Copyright Law，there has always been a dispute between the concept of copyright and the author's rights in the understanding and application of this clause.This paper intends to further study and clarify the theoretical basis and legal logic of this clause and put forward suggestions for law enforcement and legal adjustment to meet the needs of copyright development and dissemination operations in the long video industry.
2 An Analysis of the Pattern of Benefit Distribution in the Long Video Industry
2.1 The Efficiency Realization of the Copyright Ownership Rules in the Long Video Industry
　　The essence of intellectual property is the exclusive rights that people enjoy by law over intellectual products.Its philosophical theoretical basis is mainly based on utilitarianism and/or pluralistic grounds，including the labor theory of property，etc.Locke's theory of property appropriation puts forward the concept of original common ownership.Every person has an inalienable part of the overall resources in their natural state.Through labor，something is separated from the state of common ownership of mankind.The resources in the state of common labor are appropriated，and the goods become their private property［2］.Therefore，when the creators’labor is mixed into the public domain of intellectual property and the starting materials are transformed into literary and artistic works with a personal imprint，the creators naturally enjoy property ownership.Long video is one of the most complex production systems in the field of creative industries that has evolved since the industrial era.The original expression of each author，such as screenwriter，director，photographer，lyricist，and composer，on the presentation effect of long video works is clearly visible，rather than being integrated into an indistinguishable whole under collaborative work.Therefore，long video works meet the definition of “cooperative works”.However，it cannot be considered that the creators of the above enjoy independent authorship with respect to long video works.In other words，the production of long video works comes from the creative behavior of the creators.Its original creative motivation included meeting the needs of the creators to express themselves.The professional activities of the creators also give birth to the artistic value of long video works，while the industrial or commercial value comes from the producer's industrial ties，distribution，and business operations.The producer drives the above labor，including editing，special effects，and other post-production，through investment，brings in production channels，and attaches this labor to the creative labor of original creators，such as scriptwriters and directors.The copyright rule does not grant independent property rights to dependent labor.Instead，it retains the monetary compensation after concealing the labor.It can also be explained by the classic theory of Locke，that is，recognizing that labor and a property right claim based on labor can be transferred through contract，which is expressed in Art.17.1，which stipulates that the original creators of the cinematographic works and TV play works do not enjoy the copyright property rights.Their remuneration basis only comes from the constraints of the copyright contract.The Copyright Law and Film Industry Promotion Law of the People's Republic of China both stipulate that the copyright owner and the public should be the dual stakeholders，which is intended to unify the dual value goals of protecting private rights @@ and promoting public interests in the efficiency of knowledge production［3］.However，reviewing the various performances of the domestic long video market，one cannot help but wonder whether the principle of interest balance and efficiency behind intellectual property protection is always persuasive when producers directly obtain copyright to long video works through the rules.When copyright ownership of long video works flows to producers，can intellectual property rules based on encouraging individual autonomy continue to be legitimate in the view of utilitarian theory？
　　Reviewing the development of the modem copyright system，most scholars believe that the author's property rights in a work originated with the Statute of Anne in Britain.In the common law system，copyright law is mainly based on the concept of property，which stems from the recognition of the exclusive right to copy works for commercial purposes.Therefore，the right is called copyright，but rather the protection of the author's personality［4］.While civil law countries are guided by the moral right，the concept of the moral rights of copyright originated in France.The values of personality provide the philosophical basis for copyright law.It introduced the idea of natural rights into copyright theory and enriched modem copyright.The Declaration of the Rights of Man and of the Citizen（1789）stated that the free communication of ideas and opinions is one of the most precious of the rights of man.Every citizen has the right to speak，write，and print freely.Established copyright as a constitutional and fundamental right，works were viewed as the externalization and extension of the author's personality.Authors enjoy the natural rights of their works and have the right to control the inseparable connection between their personalities and their works.Historically，in the development of long video works，the common law system of the United States and the civil law system of France experienced a period of rights allocation with similar purposes but different approaches.The cinematographic works and TV play works are the original and central long video works.In 1908，the Berlin Conference adopted a proposal to regulate the adaptation of films from existing works.Article 14 of the Revised Berne Convention for the Protection of Literary and Artistic Works（Berlin Act）stated that cinematographic works were protected as literary or artistic works.Later，the rights of authors of cinematographic works and TV play works were discussed at several conferences to revise the text of the Berne Convention.These discussions led to the gradual transformation of the standards into legislation or bilateral agreements between contracting states［5］.In the 1930s，the United States reached a deadlock in its attempt to join the Berne Convention.The reason for this was that，as the biggest beneficiaries of the American film industry，producers were always trying to maintain control over copyright and exclude the moral rights of creators from cinematographic works and TV play works copyright.Special interest groups in the United States turned to adopting a new convention more compatible with the domestic copyright system，i.e.，the Universal Copyright Convention developed by UNESCO in 1952.Neither the Berne Convention nor the Universal Copyright Convention considered specifying the identity of the film's author until France's Law of March 11，1957，on Literary and Artistic Property，clearly proposed that cinematographic works and TV play works should be included in the list of protected works.The law also specified the identity of the author of the cinematographic works and TV play works，adopting the principle that the creator of the original expression in a work is its author.However，the United States did not specify the identity of the author of cinematographic works and TV play works in its copyright law until 1976.Under the work-made-for-hire doctrine，the employer of the creator of a motion picture or other audiovisual work is considered the author of the work［6］.For decades，two communication revolutions and the global cultural market influence pattern of the audio-visual industry have constantly highlighted the difference between the author's right and copyright，and the international competition for cultural influence has also led to domestic legal reforms in major film and TV series exporting countries.
　　China's Copyright Law adopts the provisions of the two legal systems on the identity of the author.While recognizing that the copyright owner is in most cases the creator of the original expression，there is a special provision that investors can be regarded as authors（works of a legal entity）.The provisions on the category of authors in the current law reflect that China's intellectual property system was shaped by the local social development background，such as the socialist market economy and public awareness，in the process of legal transplantation［7］.Among them，the labor theory of property represented by Locke has not been completely internalized as a guide in China's intellectual property field［8］.This is especially true in industries where capital and labor are separated and the fruits of labor do not belong to laborers.In addition，as the basis of ownership，labor cannot demonstrate how property relations are constructed［9］.It is impossible to demonstrate the relationship between people and others based on intellectual labor achievements that are essential to intellectual property rights as legal rights.Instead，under the guidance of the justice of efficiency，laborers’control over labor achievements is strictly restricted in highly industrialized work types.As the Chicago @@ school of legal economics generally believed，we shall be examining cases，doctrines，and principles from the standpoint of whether they are efficient in an economic sense and，if not，how they might be changed to make them efficient［10］