On The Fault Identification Of Internet Service Provider In Indirect Copyright Infringement

The development of Internet technology has spawned an emerging Internet service provider(ISP),an emerging legal entity.Under the background of traditional copyright protection,ISPs only assume a technology-neutral role,and the development of technology has enabled their service capabilities to expand.It gradually evolved into the role of the actual manager of a value-selective network service platform.The phenomenon of network copyright infringement occurred frequently by network users relying on the network service platform.According to the characteristics of network infringement,online infringement is divided into direct infringement and indirect infringement.The ISP constitutes indirect infringement by providing help behavior or technical convenience,and assumes indirect infringement liability.The basis for judging its liability for indirect infringement lies in the judgment of whether the ISP is subjectively at fault.In terms of legislation,China's Tort Liability Law uses "knowledge" to describe ISP's faults,and the specific content of "knowledge" should be understood in a broad sense,that is,knowing that "knowing" and "ought to know" are included.The"Regulations on the Protection of the Right to Spread of Information on the Internet"promulgated by the State Council also clarifies that the ISP's fault content is"knowing" and "should know." The expression that "there is no reasonable reason to know" can be understood to have the same meaning as "ought to know".At the level of judicial interpretation,the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Civil Dispute over Information on the Right of Dissemination of Information on the Internet" also use"knowing" and "ought to know"to describe the fault of the ISP.Therefore,judging from the legislative system of our country,the legislation has gradually made it clear that "should know" is the content of ISP's fault.Regarding the nature of "should know","notice" includes the meaning of "violation of duty of care" in addition to the meaning of“presumption of knowing",that is,the infringement of ISP copyright indirect infringement includes "intentional" and "negligence".In practice,our courts use the "notice-delete" rule and the "observation obligation"as criteria to identify "knowing" and "ought to know".Specifically,the court determines "knowing" by determining whether the ISP is obliged to delete the infringing information work after receiving the "notification" of the right holder.Regarding the determination of "ought to know",the court determines whether or not it constitutes "need to know" by measuring whether the ISP's business model,technical attributes,control ability,and whether it has obtained economic benefits.In judicial practice,the court took attention to the violation of the obligation as the"acceptable" practice to further clarify the scope of "need to know" in the general context also includes negligence.Regarding the court's citation of duty of care to identify "ought to know",China's Tort Liability Act does not explicitly regulate "attention obligations".Article 36 of the Tort Liability Act is used as the basis for determining the subjective fault of the indirect infringement of ISPs.Its provisions are over-principled,and the rules for the recognition of "knowing"and "ought to know" have yet to be further elaborated.The "notice-delete"rule that draws on the United States copyright law "Digital Millennium Copyright Law"also has deficiencies in the identification of ISP faults and does not meet the lag in the protection of online copyright infringement.In addition,although it was agreed in the legislation and the judiciary that the fault of the network service provider was determined by "knowing",the existing research still has differences on the understanding of the specific content of "should know",that is,it is not responsible for the ISP.The ambiguity in the relationship between the examination obligation and the recognition of negligent duty of care leads to the fact that the court sometimes cannot distinguish the difference between the two.In some judicial cases,the duty of care is considered as a review obligation.In view of the fact that the practice pays attention to the new issues brought about by the new trend of fault determination and the combination of negligence as the theory of indirect infringement of ISPs,the rules concerning the fault determination of ISPs should be perfected to solve the current theory about faults.Identify differences that arise and provide a clear legal basis for court trials in judicial practice.First,redefining network service providers and reclassifying them according to the nature of their services and control capabilities to establish a duty of care that matches their identities.Second,the legislation clearly defines the relevant concepts of fault determination and improves the "notification-delete" rules.Third,we must clearly pay attention to the obligations at the legislative level and establish the ISP's scope of duty of care.