Study On The Indirect Infringement Liability Of Copyright Of Internet Service Provider

In recent years, the network technology has greatly developed people’s life, and promoted the prosperity of the network industry. But with the development and diversification of the service network operation mode, assuming liability of Internet service provider has become the focus of discussion. This paper is divided into four parts to discuss the issue.The first part is a basic overview of the indirect infringement liability. The indirect infringement liability of Internet service provider refers to which does not directly infringe the exclusive right, but for the infringement of Internet users to provide help or instigate, also has the subjective fault of tort. So the key to determine the indirect tort liability includes: first, if the objective behavior promote the direct infringement; second, if it has the subjective fault. Then the article analyzes the changes in the law of the evolution of China’s problems and points out our country`s legal system construction at present.The second part mainly introduces the relevant system of USA and EU. Their legal and judicial practices are more mature, so it is worthy of our reference. In American "Digital Millennium Copyright Act" 512 nd, internet service providers are divided into four categories, and the provisions of its statutory exemptions also known as the Safe Harbor Rules; the EU has developed the E-commerce Directive, clearly defined the contents of free internet service providers and all criminal and civil liabilities of third party.The third part analyzes the indirect infringement liability of internet service provider for the copyright, basing on the comparison of Chinese and foreign laws and regulations, combining with the discussion of some cases. There are four elements: first, the internet service provider must be in indirect infringement. The indirect infringement should be distinguished from a direct violation of the right to network dissemination of information, but to provide help or instigate behavior objectively. Second, the internet service provider must have subjective faults. Because the internet service providers are not in direct infringement objectively, the existence of subjective fault has become a key and difficult point. Third, there must be some damages to the facts. Fourth, there must be a causal relationship between the indirect infringement of rights and the damage to the network information. In these four elements, the first two elements are the keys of the whole responsibility.The fourth part will focus on the aspects of commitment and limitation of liability. We should discuss separately according to the specific characteristics of internet service providers. We can`t take the same measures for all service providers, so as to ensure the balance of society. On the limitation of liability, the Safe Harbor Rules provides good guide, however, there are some problems in the process of the transplantation of law, for example, we don`t understand the nature of the Safe Harbor Rules accurately. Therefore, the whole legal norm of our country still needs to be further improved.