On Copyright Monitoring Obligation Of The Internet Service Providers

Chinese law introduces safe harbor rules from United States to restrict the tort liability of Internet Service Providers(hereinafter referred to as ISPs),and does not require ISPs to bear the obligation to monitor user generated content(hereinafter referred to as UGC).In the face of infringement chaos in the UGC environment,under the protection of safe harbor rules,ISPs,especially User-Generated Content Platform Service Providers,haven't play an active rule to prevent copyright infringement,thus the intellectual property community has been arguing on whether ISPs shall assume copyright monitoring obligation.This thesis starts from basic jurisprudence about monitoring obligation of ISPs,analyzes the current opinions on the establishment of monitoring obligation by comparative method,examines the relevant foreign legislation and cases,sorts out domestic practice on monitoring obligation,and finally puts forward some proposals to perfect Chinese copyright law and other solutions to handle network infringement.Specifically,this thesis is divided into five parts.Chapter I introduces the legal status and copyright responsibility of UGC service providers,and defines the monitoring obligation by comparing with relevant concepts.Chapter II analyzes three different viewpoints on the establishment of monitoring obligation and discusses the background and reasons thereof.It is concluded preliminarily that the commitment of special monitoring obligation can make up the deficiency of the obligation of ISPs to a certain extent and oblige ISPs to protect copyright.Chapter III mainly examines the legislative provisions and judicial application on monitoring obligation in United States and European Union,and studies the technical measures taken by ISPs in autonomy environment and the influence of autonomy,with the hope of drawing lessons from it.Chapter IV combs the application of monitoring obligation in our judicial practice and concludes that our courts tend to require ISPs to bear monitoring obligation under the circumstances of "should know".Chapter V puts forward a proposal to perfect Chinese copyright law,and designs a plan that combine technology measures with manual review to monitor User-Generated Content.Finally,reflection on the content communicating model is raised.