Study On The Obligations Of Internet Intermediaries Under The System Of Intellectual Property Rights

To correctly guide the Internet Intermediary’s engagement in e-commerce,accurately identify the joint liability of Internet Intermediary, and establish andmaintain the right order of Internet related intellectual property rights, this dissertationexplores and discusses the topic of obligations of Internet Intermediaries under thesystem of intellectual property rights. The dissertation includes four chapters.Chapter One discusses three basic theoretical categories addressed in thisdissertation. The Internet Service Provider, the Internet Intermediary, and the InternetContent Provider constitute a concept system. The Internet Service Provider is thecommercial body that provides any Internet related communication services; theInternet Content Provider provides directly accessible content which is thecommercial body that undertakes Internet communication; and the InternetIntermediary does not release content, however, it provides support and technical aidfor Internet communication. The Internet Intermediary may be divided into threetypes, Internet Access Provider, Web Hosting Provider(hébergeur, in French), and theInformation Location Service Provider.The analysis of the legal obligations of the Internet Intermediary shall start fromthe relationships between the intellectual property rights holder, user, government andthe Internet Intermediary, and shall follow the principle of the balance of interests.When setting up the obligations for an Internet Intermediary, it shall follow theprinciple of consistency between rights and obligations, abandon the logic of "all in"or "all out" in setting up of obligations, so as to achieve diversity, systematicness and progressiveness in the types of obligations. From the perspective of industrial policy,the rule of coordinated development of various industries should be followed, that is,the development of e-commerce should not be at the cost of other industries’developments such as the cultural industry.The relationship between obligation and faute is that, the nature of obligationsdecides the nature of faute, and the extent of obligations decides the extent of faute.The duty of care is the systematic tool for the materialization of the “rational people”standard, the value of which is to identify the negligence. Knowledge or should-knoware statuses of awareness, which do not have accountability; under the situations ofknowing or should-know, only non-implementation of legal obligations shall beaccountable and shall constitute intention.Chapter Two summarizes and compares the legislation and justice systems in theUnited State of America, France and China focusing on the types of obligations. Theobligation on preserving and submitting the information on user’s identity differs tosome extent on the scope of body of application among the three countries. TheTiscali case sets out limits on the content of obligations. In terms of the nature of thisobligation, France and China are inclined to the view that it bears the nature of publiclaw.In terms of the examination obligation, there are actually divergence of viewsbehind the superficial consensus of the countries. The SOPA under the discussion ofthe US Congress tries to set up new types of obligations, such as obligations toprevent users from accessing infringing websites, obligations to suspendadvertisements, to express the dissatisfaction on current rules that indulge the InternetIntermediary’s inactive protection of intellectual property rights. Although theEuropean Union shares the view that the Internet Intermediary does not bear thegeneral nonitoring obligation, it preserves the legislative possibility for its membercountries to set up monitoring obligations in a specific case. Compared to thediscretion in legislation, the judicial practice in China has audaciously explored theapplication of examination obligation, even though, generally speaking, the judicialpractice is still in the stage of coming back and forth between the duty of care and theexamination obligation.In the judicial practice of US and France, the duty of care is not a systematic toolfor finding the negligence in intellectual property rights infringement for an InternetIntermediary. In China, although the duty of care is not stipulated in the legislation, in judicial practice it is seen as an important tool for finding faute, and there is a trend ofover-using it. US, France and China have all stipulated the proceeding of "notice andtake-down", however, there is difference in the detailed implementation rules.The obligation of cutting off net access or freezing account is a feature in theFrench legislation, which applies on the basis that the user commits minor copyrightcrime, and which belongs to enforcement measures for criminal accessorypunishments. In the cases of fighting repeated infringements and Internet intellectualproperty crimes, this type of obligation is of reference for China.It may be found through comparison that, the types of Internet Intermediary’sobligations under the system of intellectual property rights do not remain unchanged.Rather, the system of setting up obligations is a system that is undergoingdevelopment, which shall be analyzed and explored with a developing eye and anactive attitude, by engaging in the global trend of amending rules dynamically.Chapter Three demonstrates the reasonableness of setting up obligations from theperspectives of necessity and suitability. According to the theory of "dualcharacteristics of basic right", right is not only a body’s subjective right, but alsorepresents an objective value and order. Therefore, it is not sufficient for agovernment to bear only the obligations of marking sure rights are not infringed,instead, the government shall further bear the protective obligations and shall protectthe basic rights more actively. Being a basic right, intellectual property right is not aprivate right, but represents the basic proprietary order in the time of intellectualeconomy. However, with the time changing, in the age of Internet, it is only thecountry that shall bear active protective obligations, but also the relevant socialsubjects including the Internet Intermediary. Being a pivot of e-commerce, theInternet Intermediary is of close interests with intellectual property rights, and bearsthe necessity for protecting actively the intellectual property rights. Meanwhile, asshared obligations between the Internet Intermediary, the government, the rightholder, and the user, the active obligations an Internet Intermediary bears will have itslimits.The obligations of an Internet Intermediary under the system of intellectualproperty rights shall be set up suitably. In choosing the type of obligations, it shalldistinguish the target of dissemination. Because, where the target is different, thedifficulty for judging the legitimacy is different. The lower it is for finding thelegitimacy, the heavier obligations a service provider shall bear. It shall also differentiate the business model; because, the more detailed the business model is, themore aid or lure it may cause, and the more likely it will lead to infringement, and theheavier duty of care that an Internet Intermediary shall bear. It shall differentiate theprofit factor; because a reasonable and careful businessman shall firstly identity thedetailed means, ways, and subjects of profiting and whether it is legitimate. The morestraightforward a profit model is, the clearer the legitimacy is, and the heavierobligations shall an Internet Intermediary bear. To sum up, the detailed types ofobligations shall be different according to target of dissemination, business model,and profit factor.Chapter Four demonstrates respectively the application basis of four majorobligations, and proposes systematic legislative proposal. The obligation ofpreserving and providing user’s identity information of an Internet Intermediary, is atype of basic protective obligation, which have multiple legal characteristics ofjudicial obligation, administrative obligation, and civil obligation. Procedurally, theimplementation of the obligation shall entail a request to the judical authority, for thejudicial authority to review and consider according to judicial procedure, and then todecide whether to issue an order.Duty of care is a systematic tool that accompanies the negligence being a form offault, which serves the purpose of finding the liability of infringement on negligence.Duty of care only requires an Internet Intermediary to pay necessary and carefulattention in daily operation. Therefore, the conditions for an Internet Intermediary’sduty of care are as follows: general foresight on legitimacy of a piece of on-linecontent, normal interest thereof, not conflicting with policy requirements.Examination obligation is a systematic tool that accompanies the intention beinga form of fault, which serves the purpose of finding the liability of intentionalinfringement. Different from the duty of care, the examination obligation requires theInternet Intermediary to actively prevent joint infringement. Therefore, if theillegitimacy is obvious for a target of disseminate, or if the business model isprofessional and detailed, or there exists direct profit, an Internet Intermediary shallbear the examination obligation for legitimacy of on-line content.As for a user who is a repeated infringer, it is necessary to set up the obligationof cutting off net access or freezing account for an Internet Intermediary. However, itis improper to directly copy the measures from France, as it shall be recognized thatthese obligations have dual characteristics of civil obligation and administrative obligation. Where certain conditions are satisfied under the law, the judicial authoritymay directly order, or the intellectual property right holder may request the judicialauthority to order, that an Internet Intermediary shall suspend a specific user’s accountor net access in a certain period."Obligation of take-down" is not an obligation, which is certainly not a type ofobligations that is parallel to the four types of obligations discussed above. Theaforesaid four obligations which have various functions and conditions respectively,constitute a system of obligations. From the perspective of leveled protection ofintellectual property rights, the levels of obligation are as follows: the obligation ofpreserving and submitting user’s identity information provides basic protection, theduty of care provides regular protection, the examination obligation providesemphasized protection, and the obligation of suspending net access or accountprovides punitive protection.