Research On Notification Rules In Network Infringement

As the population of the Chinese netizens continues to grow, more and more netizens will publish their views about public events and public figures on the Internet,it also lead to an increasing number of network infringement cases. Due to the Internet has features of virtualization and real-time interactivity, when some netizens make commons on the Internet, they infringe other people’s rights without scruple, their behaviors constitute infringement.The second paragraph of article 36 of the 《 Tort Liability Law 》 established "notice- delete" rules, the rules require network service providers to investigate whether the claimer’s rights have been infringed or not after receipting the claimer’s notification. If the answer is Yes, the network service providers ought to take necessary measures to delate,shielding and broken links etc. in time. If the network service providers unable to take the necessary measures in time and thus make the damage further expansion, the network service providers shall undertake joint and several liability with the Internet users who infringed others’ rights.Notification rules first originated in the United States which legislate “Digital Millennium Copyright Act” in 1998, Chinese laws, judicial interpretations of the Supreme Court and the administrative rules of the state council make legal provisions for notification rules. But the rules do not yet form a relatively complete theoretical system, it’s also difficult to solve some problems in the judicial practice. Therefore, in the background of Internet infringement,network service providers how to efficiently handle infringement notice, and how to maximize the protection of the claimer’s rights and interests, it needs to apply a full set of explicit and definite rights and obligations of notification rules, and it will be able to maintain a balance between network service providers’ interests and Internet users’ interests, at the same time it can also furthest guarantee the freedom of speech on Internet.This paper takes the “Cai Jiming vs. Baidu Co.,Ltd.” as a guide, summarizing the four controversial focus of this case, combining with the basic theory of civil law, focusing on the notification rules by discussing and analyzing the case. This paper uses the empirical analysis and interpretative theory of civil law to discuss the notification rules, and compares the basic theory of civil law with notification of infringement in terms of legal nature, in order to find the similarities and differences between them. Besides, this paper also discusses the claimer’s rights and network service provider’s obligations from different aspect, such as the content and form of the notification, the legal subject of the notification, the sending object and the validity of notification. When applying to notification rules in practice, we will face tough problems. For example, how to identify the notification of infringement has arrived at network service provider, how to identify the network service provider knows infringement act, and how to identify the notification of infringement delivered successfully when sending notification by E-mail, all of these problems have been made detailed analysis in this paper.