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Study On The "Safe Harbor Rules" Refer To Information Storage Service Providers In China

Posted on:2014-02-14Degree:MasterType:Thesis
Country:ChinaCandidate:Z Q XuFull Text:PDF
GTID:2246330398979971Subject:Law
Abstract/Summary:PDF Full Text Request
How to identify the Information Service Providers’liability in tort is not only directly related to the interests of the Information Service Provider and the copyright owner and, also directly affect the public’s freedom of speech, knowledge diffusion, and the development of internet service industry. Therefore, correctly apply the "Safe Harbor Rules" is particularly important.The "Safe Harbor Rules" evolved from America. In early American judicial practice, the tort liability of Information Service Providers has experienced from strict liability to indirect responsibility, and ultimately established the "Safe Harbor Rules" in the Digital Millennium Copyright Act. The "Safe Harbor Rules" refer to Information Shortage Service Providers in American includes five elements. Providers who can not meet the conditions will not be able to apply to the "Safe Harbor Rules" for exemption, and may bear the corresponding legal responsibility. Based on the experience of the US, China has established the "Safe Harbor Rules" refer to Information Shortage Service Providers in the "Regulations" Article22, which defined the five conditions for service providers to enter the "safe harbor" from both subjective and objective aspects. The "notification" clause and the "awareness" clause in the Article36of "Tort Liability Act" are provisions about "Safe Harbor Rules". However, because of the difference of early judicial practice and the legislation style between China and the United States, there is a misunderstanding of the principles in the "Regulations", as well as a conflict between the traditional civil law like the "Tort Liability Act". It’s necessary to reinterpret the effectiveness of the "Safe Harbor Rules" refer to Information Shortage Service Providers, and interpret the exemption clauses as the negative terms of the Liability Fixation including three parts:clauses related to direct infringement; clauses related to help tort liability; and clauses have nothing to do with the imputation of liability.As to the phenomenon of "similar cases but different judgments" in the judicial practice, a judge shall firstly take an accurate understand of the various legal concepts. Combined with the specific circumstances of the case, the judge shall accurately identify whether or not the Information Storage Service Provider meets the terms:it cannot be affirmed as infringement if the Information Storage Service Provider doesn’t mark its service nature, but requiring the service provider to prove it is not a content provider; in order to realize the network communication process, the service provider implemented changes like changing the format or adding its site logo on the works, which are just form changes not involving the substantive content, therefore these changes are not those in the "regulations"; we shall take into account all the conditions of the provider and the work, and combine the care duty of the provider under certain conditions, to identify the provider’s subjective fault; the general advertising fees or service charges the service provider received do not belong to "gaining economic interests directly" usually, the key point lies in whether there is an inevitable link between the benefits and the tort; a qualified notice shall enable the service provider easily locating the infringing material, but it is not the sole basis in the subjective fault identification, and a failure notice is not completely ineffective but considering its affection on the provider’s subjective state according to the content of the notice.
Keywords/Search Tags:Safe Harbor Rules, Information Storage Service Provider, Information Propagating Right on Network
PDF Full Text Request
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