The Suitable Position And Legal Application Of "Notice And Take Down" Rule In The Copyright Law Of China

Due to the inaccurate understanding of the rules of "notice and takedown" and"safe harbor",confusions exist in Chinese jurisprudence about the properties and functions of the two rules.Usually,people would equate the two rules and identify the"notice and take-down" rule as a kind of exemption.Nowadays,there isn't any consensus in Chinese jurisprudence about how to identify the subjective fault of the internet service provider(ISP)in indirect copyright infringement.Thus,it is challenging to delimitate "knowing" and understand how the ISP is affected by"notice" in realizing the infringing activity.Through careful analysis,it is concluded that in China only the ISP with automatic network connection and automatic storage can enjoy the "safe harbor" rule,but not the ISP that provides services of search,link and storage.Moreover,as only a part of the "safe harbor" rule,the "notice and take-down" rule itself doesn't enjoy the legal force of exemption.In China,the "notice and take-down" rule works in delimitating the subjective status of the ISP in indirect copyright infringement.In Chinese jurisprudence,people usually explain "should know" and "have reason to know" via the special duty of care and the "constructive knowledge",while the "constructive knowledge" is delimitated from the law of evidence and the theory on the duty of care.For the ISP,there is no conflict between the special duty of care and the duty of prior examination.In the law of evidence,the "constructive knowledge" is based on the duty of care.Thus,the special duty of care has a wider applicability.As the "constructive knowledge" is a kind of affirmative way of "know",the "red-flag test" of American Law,which is stricter in the obviousness of the infringing activity,is not suitable in China.To this end,"have good reason to know"in the "Regulations on the Protection of the Right to Network Dissemination of Information" is basically the same as "should know",and "should know" in the"Judicial Interpretation for Transmission Right in Network" employs the theory on the duty of care.An eligible notice can make the ISP "know" the possible infringing activity,so the ISP should just examine the "notice" formally.The suggestion is that we should differentiate defective notices in different circumstances:treat a defective notice with sufficient contents the same as an eligible notice;if given a defective notice without sufficient contents,the ISP have a positive obligation to inform the notice provider and ask for an eligible notice or a notice with sufficient contents.