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A Study Of The "Safe Harbor" Provision

Posted on:2011-05-06Degree:MasterType:Thesis
Country:ChinaCandidate:L L BianFull Text:PDF
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Safe Harbor Provision first appeared in Digital Millennium Copyright Act (DMCA) of the United States, which provides a certain limitation of damage liability caused by the act of internet service provider (ISP) who meets the statutory requirement. China's Regulation on the Protection of the Right to Network Dissemination of Information also borrows the Safe Harbor clause from the United States'DMCA, and sets up a Safe Harbor in copyright for four types of ISP. The Clause 36 of Tort Liability Act which implemented on July 1, 2010 also provides limitation on the intermediate liability of ISP, however, due to the lack of unification in legislation and lack of priacality and guidance, Safe Harbor Provision encounters a few difficulties and problem in application. This thesis, starting from the emergence and legislation of the Safe Harbor Provision, summarizes the limitation of liability of ISP and the significance of the Safe Harbor Provision, and by studying on the hot issues in judicial application, tries to put forward a improved and sound advice on the application. This article, in addition to the foreword and the conclusion, contains four parts: The first part of the article is the overview of the emergence and legislation of SafeHarbor Provision. As first emerged from the judicial practice in the United States, SafeHarbor Provision was written in Digital Millennium Copyright Act (DMCA). Since the said provision meets the needs of network development and complys with the historical trend, China, Germany, the European Union and other countries and organizations, by referring to the DMCA of the United States, has made their own version of Safe Habor.The second part of the article is about the legal analysis and significance of Safe Harbor Provision. The writer believes that in order to study the liability limitation of internet service provider (ISP), we must first analyze the cause, form and doctrine of liability of the intermediate liability undertaken by the ISP. Our law explicitly regulates that ISP with subjective fault shall bear responsibility of compensation for damage to its network user. This principle of fault liability puts the ISP into a dilemma, on the one hand, ISP, in order to avoid tort liability, should promptely delete the information of infringement once receiving notice of the obligee; on the other hand, ISP will be forced to make legal judgement whether the accusation in the notice is founded, or it will be held responsibility of breach in terms of deleting the user information presumptuously. The meaning of Safe Habor Provision here is to release the ISP from the role of a quasi-judicial body, and urge a better cooperation between ISP and the obligee, so that the right and intertests of the obligee will be timely protected.The third part is about the difficulties and problems of Safe Harbor Provision in judicial application. As to subject applicable to Safe Harbor Provision, the writer holds that only the ISP who provides storage, search or linkage service for user could be the subject with network infringement indirect liability and applicable to Safe Habor Provision. When dealing with specific tort liability of ISP, we should base on its particular role and status in the infringement involved to determine the category of ISP; As to subject elements applicable, by referring to the"Red Falg"of the United State and the general duty of care in civil law, we could measure the subjective status of ISP according to objective factors and criteria, including whether it supports standard technology, stops repeated infringement, commits act of inducement or fulfills the general duty of care; As to objective elements applicable, the writer holds that the notice shall be in legal form, however for the notices which do not meet the legal requirements could be deemed as the evidence proving whether ISP has any subjective fault.The fourth part is some thoughts on improving the Safe Harbor Provision in China. The writer argues that lack of unification in legislation and practicality has made Safe Habor Provision lost its practical meaning. We should, on the basis of making clear that ISP has no obligations of examination and inspection, refine the criteria and standard of the"awareness"of the ISP, and improve the the standard of effective notification brought forward by the obligee in Tort Liability Act.
Keywords/Search Tags:Safe Harbor Provision, Internet Service Provider (ISP), limitation of liability
PDF Full Text Request
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