Study On Notice And Takedown Rules Of Internet Infringement

The second paragraph of article 36 of “Tort Liability Act” has established notice and takedown rules in the legal aspects for the first time in China.However, due to provisions of the paragraph are oversimplified and lack of maneuverability,in practice it is more based on the provisions of notice and takedown rules of "Information Network Transmission Right Protection Ordinance" to handle network infringement.After all, "Information Network Transmission Right Protection Ordinance" has its specific scope,there is some controversy that Whether it is reasonable to expand the Ordinance apply to outside of the intellectual property right infringement case.Until recently Supreme People’s Court issued judicial interpretation [2014] No. 11 to make provisions on the application of the law of the rules applicable to the field of personal interest, it provides a relatively clear guidelines for the application of notice and takedown rules for us.Although judicial interpretation [2014] No. 11 further clarify the specific institutional arrangements of notice and takedown rules,but the judicial interpretation does not completely solve the theoretical dispute relating to notice and takedown rules.In addition,there are many inconsistencies between judicial interpretation [2014] No. 11 and "Information Network Transmission Right Protection Ordinance".This paper is analyzed on the basis of the foregoing,and expect to help to understand and apply notice and takedown rules.This paper is divided into five parts:The first part:The theoretical basis of notice and takedown rules.Correct understanding of notice and takedown rules of legislative purpose and legal nature is to understand and apply the rules of the premise. Legislative purpose of notice and takedown rules is to balance the interests of right people, network service providers and network users,the full protection of human rights, while the dissemination of information to be minimal limit the freedom of Internet users and can not unduly restrict development of the network industry.Although our notice and takedown rules borrowed from the US "safe harbor" rules, but both are the shape of miraculous, in our system of Tort Law, the notice and takedown rules should be characterized as a network service provider’s imputation requirement rather than the exemptions.The second part:The judgment of the effective notice.Judicial interpretation [2014] No. 11 and "Information Network Transmission Right Protection Ordinance" provide comparative analysis of the form and content of effective notice, this paper clears the specific criterion when notice and takedown rules apply in the field of intellectual property rights and personal rights field.On the form of effective notice, intellectual property rights have been infringed shall be in writing, personal rights have been infringed can use in writing or other ways of network service provider of the public.About the content of the effective notice, whether it’s intellectual property rights are violated or holder of the personal rights and interests are violated, the notice shall meet the following conditions: The first is to provide the right holder’s name and contact way; The second is to provide the location of the infringing content information, the network address of infringing content or enough to pinpoint the infringing content related information;The third is the description of infringement facts, which can provide preliminary evidence that tort formed material or reason.Has been clear about the criteria to judge effectively notified later, still need to review how Internet service providers notice were discussed. To this, this paper argues that network service providers to notify the review should be higher than the formal audit, but don’t reach the degree of substantial examination by the judicial organ, the network service provider similar to the Anglo-American law system should be taken to a "reasonable person" standard to review notice.The third part:The legal effect of the notice.According to the different situation of notice meet effective notice requirements,notice will be divided into effective notice, defect notice and error notice, and its legal effects will produced by systematic explanation.The legal effect of the effective notice include: Internet service providers to take necessary measures in a timely manner; no legal liability to Internet users after the network service provider to take necessary measures in a timely manner; presumption network service provider knowing violations exist.The legal effect of the defect notice include: network service provider has no obligation to assist the rights of people to complement defective notice; considered effective notice is not issued; not produce presumption network service provider knows the effect of the existence of the infringement.The legal effect of the error notice include: error notice to the network service provider in terms of the effective notice has the same effect, the damages of network users due to an error notice are compensated by the right people who issue a notice.The fourth part:Network service providers’ legal liability for breach of notice and takedown rules.First of all, the network service provider’ joint and several liability under the notice and takedown rules is discussed, refuting the view that the network service provider’s joint and several liability is not the real joint liability.Secondly, analyzing the theoretical basis of joint and several liability of the network service provider.Legislation in our country has not established theory of indirect infringement, but continue to use the traditional tort liability law path, in order to help tort theory as the theoretical basis of the network service provider to assume joint and several liability.The fifth part:The Suggestions of improving the notice and takedown rules.This paper puts forward improving Suggestions from the improvement of the legislation and the network service provider industry self-discipline two aspects, including the following points:First, clearing the network service provider’s obligation to inform, the network service provider shall inform the public in a manner acceptable in its pages a prominent position, and after taking effective measures in accordance with the notice, the network service provider should convey the contents of the notice to the Internet users;The second is to stipulate the anti-notification rules,which is,network users being taken measures consider to upload information does not constitute infringement,network users shall have the right to issue an anti-notification to the network service providers,requiring network service providers to restore the information;The third is to strengthen self-discipline of network service providers, which suggested that the Internet society could summarizes the practical experience of the network service providers how to handle notice,on this basis,developing industry standards on network service providers processing notice.