A Study Of The ISP’s Tort Liability For An Indirect Infringement Of Copyright

Prior to the internet age, the copyright field demonstrates the relationship between traditional right-holder and infringer. However, as internet technology develops, the above situation has changed that right-holder, infringer and internet service provider(hereinafter as the ISP) coexist for interest allocation. The universal application of P2P and other technologies makes the copyright infringement through internet low-cost and convenient, which renders the interest of copyright owner confronted with severe threats. Especially in the background that trends of decentralization, anonymity, young-age and limited compensation ability exist in internet users as direct infringers, it is always time-consuming and demanding for us to only pursue the tortious liability of the direct infringer, which cannot restrain intensified internet copyright infringement. The breakthrough lies in varieties of internet service providers with advanced technologies and stronger capacities of damage prevention. Therefore, the ISP will be required to carry reasonable due diligence. In this case, when internet users take advantage of their internet service to conduct the infringement for which they undertake fault liability, the ISP will be called to account for their own proportionate tortious liability. This will be more beneficial to strengthen protection of copyright owner in internet background.Based on systematical illustration of fundamental theories on the ISP’s indirect copyright tortious liability, this paper conducts a comparative analysis between the legislation of the indirect copyright infringement in other countries and the related regulations on the ISP’s indirect copyright infringement in China. Meanwhile, this paper concentrated on understanding of the term 36 of Tort Liability Law, and has put forward the ought-to-be state of tortious liability of the ISP. Specifically, this paper is divided into four parts.The first part analyzes the fundamental theories of the ISP’s copyright infringement. Beforehand, it defines the concept of the ISP and classifies the ISP. In the following, it analyzes the characteristics of the ISP’s indirect copyright infringement. In the end of this part, this paper introduces main theories for the ISP to assume the tortious liability.The second part introduces the related legislation regarding the ISP’s indirect copyright infringement in China and overseas. Through comparative analysis, enlightment has been given to the corresponding legislation in our country.The third part describes the judicial practice of ISP’s indirect copyright infringement and analyzes the controversial issues and problems of concern in the judicial practice from the perspective of transmission right infringement of information network case by Zhongqingwen Culture and Media Co.,Ltd versus Baidu Library.The fourth part conducts reflection on theory and practice of ISP’s indirect tortious liability in China, and criticizes the current viewpoint that the ISP and internet users are jointly and severally liable in China. Besides, the paper think it is the out-to-be legal state for the ISP to assume the sharing liability according to the proportionate fault based on analysis of fundamental principles of law ruling, judicial practice and the perspective of comparative law.