Intellectual Property Use and Management in Corporate Digital Audio-Visual Creation

◎ Lai, Wenchi

“When TikTok sounds, parents raise their children in vain” – beyond mocking TikTok’s influence on teenagers, we must also acknowledge the fact that audio-visual media spreads more easily than text. Many adults often lose track of time scrolling through short videos on their phones, and elderly people frequently share video files with each other via LINE. Whether actively or passively, enterprises need to enter the field of digital audio-visual creation in order to reach more users with their brands, products, or services. However, compared to text, audio-visual creation has not only higher creative barriers but also more complex copyright issues. The following provides a preliminary explanation of matters requiring attention in the use and management of corporate audio-visual creation.

1. Audio-Visual Creation Usually Involves Multiple Works

From advertisements and short videos to TV series and films, all are “audiovisual works” protected by copyright law. However, the bigger problem is that to respond to today’s rapidly changing market, there is a high probability that these audiovisual works will use other existing works during production, especially musical and sound recording works, and may also use other materials. These works do not lose their copyright simply because they are filmed or recorded in an audio-visual creation. On the contrary, the subsequent public use of the audiovisual work simultaneously constitutes public use of these other works contained within it. Therefore, handling audio-visual creation is particularly complex, requiring clear distinction between what is self-created and what uses others’ existing works.

Table 1: Examples of Works Frequently Used in Audiovisual Works

Since audio-visual creation involves many types of works, it is often difficult for a single creator to complete all creation independently. When it is necessary to use others’ works as creative materials, legal authorization must be obtained. This requirement does not disappear simply because the audio-visual creation is an independent audiovisual work protected by copyright law – creators must still obtain authorization for each creative material individually.

2. Distribution Through Different Media Involves Different Types of Work Usage

However, obtaining authorization does not automatically make everything legal – one must also check whether complete authorization has been obtained for various subsequent public uses. For example, for an advertising video production company, from the production company’s perspective, their use of these creative materials typically involves “reproduction” and “adaptation,” because the production company is not responsible for subsequent advertising placement. Therefore, when a company commissions others to produce audio-visual advertisements, even if the contract stipulates that the production company must guarantee that the results produced in executing the contract do not infringe others’ intellectual property rights, for the production company, it is sufficient to obtain authorization for reproduction and adaptation needed for audio-visual production. However, this does not allow the video to be disseminated through television media or social networks, because the production company has not obtained authorization for subsequent use. Of course, some production companies will assist enterprises in obtaining authorization for all media channels for relevant materials, making it convenient for enterprises to place content on any media channel without paying additional royalties.

Table 2: Rights Involved in Digital Audio-Visual Creation Distribution Channels

When enterprises invest in digital audio-visual creation, they naturally hope the creative results can be widely disseminated, but different digital media channels may require different authorizations. If all media channels need to be available for use, one must understand the resulting increased costs and market operations. Taking traditional television media as an example, TV stations typically obtain blanket authorization for public broadcasting of music and sound recordings from copyright collective management organizations, and since advertising is the main revenue source for TV stations, TV media advertising production may not necessarily require authorization for public broadcasting of music and recordings. However, if playing through internet or social media, since these platform operators typically do not obtain public transmission authorization for users, enterprises need to handle this themselves.

3. Pay Attention to Rights Attribution and Authorization Restrictions

In addition to involving multiple types of works and complex rights types, digital audio-visual creation may involve many subjects. For example, a brand image video may involve the input of directors, screenwriters, actors, art production, or other filming and post-production personnel, and these personnel may not all be company employees. For enterprises, creations completed by employees in the course of their duties are relatively straightforward – without special agreement, copyright belongs to the enterprise. However, if the creation is commissioned by paying others to complete it, it mainly relies on contractual agreement. Without special agreement, according to Article 12 of the Copyright Act, both moral rights and economic rights belong to the commissioned party (outsourced vendor or professional), and the enterprise may only use it within the scope of funding. For audio-visual creation requiring greater flexibility in subsequent use, contractual agreement becomes very important. If it can be agreed that the enterprise obtains the copyright, that is naturally best. Otherwise, the scope of authorization and whether it can be sub-licensed to others should be clearly agreed upon.

Additionally, audio-visual creation may use others’ existing works. Generally speaking, copyright holders are usually unwilling to directly assign copyright, so this may be handled through obtaining authorization. In addition to obtaining authorization from rights holders case by case, there are also many photography or art libraries, video or animation databases, and music (sound recording) libraries in the market providing relevant authorization. However, each vendor may have different scope and restrictions on authorization. Whether negotiating with individual rights holders or directly purchasing authorization from material database vendors, attention must be paid to any restrictions on use, including: territory, time, media, etc. Some materials containing human portraits may also prohibit use in certain industry advertisements (for example: not to be used for medical or gambling-related services).

4. Conclusion

In summary, digital audio-visual creation is complex because it involves many types of works, subsequent applications may require different authorizations depending on distribution to different media channels, and the above-mentioned rights may require separate contact with different parties due to contracts, authorizations, and other relationships. This makes the use and management of copyrights in digital audio-visual creation a complex problem. If enterprises want to enjoy the marketing advantages brought by digital audio-visual creation, they cannot avoid dealing with copyright issues.

Based on my personal experience, the more complex the matter, the more it needs to be simplified. The best simplification strategy for enterprises investing in digital audio-visual creation is to start management from the creative source. Concentrate complete rights in the enterprise itself as much as possible, list and manage the use of others’ works (for example: clearly record at which minutes and seconds others’ music, sound recordings, or audiovisual works are used), and retain contracts or authorization documents related to creation. Combined with the enterprise’s intellectual property management system, one can clearly determine the scope of rights enjoyed by the enterprise and the media channels available for external distribution, making it a digital asset rather than a liability for the enterprise.