On The Perfection Of Notice–Takedown Rules In China's Intellectual Property

With the further development of China's Internet and e-commerce,the infringement of intellectual property rights has also gradually increased.In order to limit the tort liability of internet service providers,The US enacted Digital Millennium Copyright Act(DMCA)in 1998,pioneered the "safe harbor" principle,under which the internet service provider deleted the alleged infringement of the information or link will be free from liability.China's "Tort Liability Law","Information Network Transmission Right Protection Regulations" also set notice-takedown rules in accordance with the principle of "safe harbor".In practice,such as Baidu Wenku,Taobao and other large internet service platform in order to avoid their own tort liability,also have applied notice-takedown rules.But with the lack of legislation of notice-takedown rules in the field of patent rights and trademark rights,a lot of problems arise,such as some rights holders use the rules to combat competition opponents in the important business festival like double eleven and double twelve,the complainants obtains relief difficultly under the wrong notice,internet service providers review the infringement difficultly and their review obligations are unknown and so on.Therefore,the writer suggests that we must analyze the application of our notice-takedown rules deeply,and learn from the useful experience of major countries,and improve our notice-takedown rules.This dissertation is divided into five parts.In the first part of dissertation,this dissertation expounds the background and significance of this research,the research status quo at home and abroad,the purpose of research and research methods.And the research significance includes theoretical and practical significance,practical significance can be divided into legislative,law enforcement,judicial significance.In the second part of dissertation,this dissertation introduces the general theory of notice-takedown rules,including the theoretical sources,the basic principle,the parties and the constituent elements.The theoretical sources of notice-takedown rules include the principle of "safe harbor" and the red flag principle;The basic principle include the principle of balance of interests and the principle of fault liability;The parties of notice-takedown rules include notifier,counter notifier and internet service provider;The constituent elements of notice-takedown rules include subjective criteria,notice of qualified requirements,and removal of qualified requirements.In the third part of dissertation,it describes the application status of notice-takedown rules.Through the elaboration and comparison of the applicable cases in the field of copyright,trademark right and patent right,this dissertation puts forward the specific problems that arise in the application of the rules,including: the abuse of notice-takedown rules,the complainants obtains relief difficultly under the wrong notice,it is difficult for rights holders to defend their rights,internet service providers review the infringement difficultly and their review obligations are unknownIn the fourth part of dissertation,by studying the successful system design experience about notice-takedown rules of the major countries such as United States,Canada,New Zealand,and on this basis for further comparative analysis,we can get useful enlightenment of improving our notice-takedown rules.The first is holding the neutral status of internet service providers,the second is holding the principle of balance of interests;the third is to prevent abuse of rights;the fourth is the strict notification of the elements.In the fifth part of dissertation,the writer put forward the advices of improving notice-takedown rules,including the principle and other specific advices.First,it is necessary to establish a notice-anti-notice-takedown-recovery mechanism;The second is to define the conditions for the notice and anti-notice;The third is to define the obligations of internet service providers review;The fourth is to establish a false notice accountability system;The fifth is to establish a tripartite review team and form a linkage mechanism.