Research On Related Legal Issues Of The "Haven Principle" For Information Storage Service Providers

With the in-depth development of knowledge economy and economic globalization, intellectual property is increasingly becoming a strategic resource for national development and the core element of international competitiveness. And, information storage service providers are playing a more and more important role."Haven Principles"are the defenses commonly used by information storage service providers in the event of infringement proceedings. For internet infringement cases are emerging, the rules have been widely accepted in China. But as"exotic"rules, the application of"Haven Principles"in China still faces many difficulties.This paper will discuss through four parts:The first part analyzes the"Haven Principles"in theory of law, describes the meaning and value of the"Haven Principles", and expounds the origin of the"Haven Principles". The principles first came into being in the case Religious Technology Center v. Netcom in the U.S. and later were set down in statute in the U.S. 1998"Digital Millennium Copyright Act". China absorbed and referred to the provisions on"Haven Principles"in U.S. legislation for the stipulation of 2006"Protective Regulations for Information Propagating Right on Network", and introduced the"Haven Principles"in China legislation after that.The second part describes the applicability of the"Haven Principles"for information storage service providers. The first section defines the legal status of the information storage service provides; the second section analyzes the present situation of the application of the rules in China. The application of the"Haven Principles"in China has a problem of undistributed references to the DMCA, resulting in different decisions in different courts for the similar cases. Compared to similar cases in the U.S., in addition to the problem of undistributed references to the U.S. legislation, there are still many other objective reasons, such as more stringent administrative supervision and other factors; the third section discusses the principle of culpability of information storage service providers. The author mainly discusses in the paper the indirect infringement of the information storage service providers.The third part focuses on the analysis of the provisions on"Haven Principles"in Article 22 of"Protective Regulations for Information Propagating Right on Network", among which the five exemption conditions are analyzed in detail. The author believes that"not clearly marked"in the first clause of this Article is not the component of the infringement of the information storage service providers;"not changed"in the second clause shall be strictly construed to avoid imposing too severe responsibility to the information storage service providers; scientific criteria shall be applied to the standards"should have known"for the application of"red flag standard"in the third clause; in the fourth clause,"direct benefit"shall also be more clearly explained. When the information storage service providers have not got direct economic benefits from the infringing contents uploaded by their registered users, the provision of this clause is applicable; clear standards shall be formulated for the"subjective fault"in the"notice + removal"in the fifth clause, so that the courts can have clear verdict criteria for judging similar cases.The fourth part is the legal thinking of the author for the information storage service providers to apply"Haven Principles". First, no-fault liability can not be generally applied for the principle of culpability of the information storage service providers; second, analysis shall be made according to concrete situations for the identification of the subject faults of information storage service providers, in combination of other evidences, to determine whether the applicable standards of"Haven Principles"are met, or whether the"red flag standards"are reached or not while losing the conditions of the"Haven Principles"; third, on the use of the provision"notice + take down procedure", non-compliant notices shall not be evidence as to determine the faults, or the provision on"notice + take down procedure"in the"Regulations"seems to be no practical significance.