A Study On The Application Of The "Safe Harbor" Rule In The Network Infringement In China

Safe harbor rules arised from the field of copyright in the United States,notice-delete rules are its core rules.It reflects the response of the law to the impact of the development of Internet technology on copyright protection.The safe harbor rules is a case for the network service provider who is accused of infringement by others,so as to avoid the relevant liability.At first,China introduced the safe harbor rules in the field of copyright only.In recent years,with the rapid development of Internet technology and communication technology,the scale of e-commerce has gradually expanded.Infringement of patent rights in online transactions is also increasing,which challenges both the protection of patent rights in the current law and the development of the e-commerce industry.The thirty-sixth article of the tort liability law has extended all the civil rights,including but not limited to copyright,to the safe harbor rules that was originally applicable to copyright infringement on the internet.we also introduce the "know rule" and "notice-delete rules" in the sixty-third amendment to patent law(Draft).However,the patent infringement in the network can not be directly applied to the safe harbor rules in the copyright field,and the necessary restrictions and corresponding reforms should be made.The main concern of this paper is the application of the safe harbor rules in the network infringement.This article follows the logical clue:First of all,the safe harbor rules can be expanded and applied to network patent infringement.but this application is not taken for granted by mechanical copy of the safe harbor rules:and then Explain the reasons for this restriction;Finally,it puts forward the suggestion of safe harbor rule in the network infringement.This paper first illustrates the legal basis for the application of the safe harbor rules in patent infringement.By collecting relevant cases,the paper analyzes the basis of judicial practice to determine the liability of providers of online trading platforms,mainly focusing on the investigation of the obligations of providers of online trading platforms.Secondly,it demonstrates the applicability of network patent infringement in patent infringement in China,mainly from the network environment of copyright and patent rights,common network service providers have a special information advantage and management status,the safe harbor rules in the network copyright infringement in the patent infringement and the inertia of the system network demand perspective.The conclusion is the safe harbor rules can be used in the patent right,but this is not applicable to network copyright expansion of the safe harbor rules mechanically,expanding the application of this rule should make the necessary modifications and restrictions.Thirdly,it analyzes the evolution of the rule of jurisdiction in the application of network copyright safe harbor rules which respects the application trend of safe harbor rules shows the trend of increasing obligations of Internet service providers.It shows that the safe harbor rules is now becoming a cooperative mechanism to promote copyright owners and Internet service providers to respond to copyright infringement from a rule that requires Internet service providers to be negative and non infringing.By collecting relevant cases,it is concluded that the application of the safe harbor rules in the patent right,and whether the network service provider properly implements the passive duty of care after the event becomes the key to its imputation and exemption,But because of the notice and delete rules is not a necessary mechanism and complete rules of core elements is not clear,leading to the practice of the received notices after the audit review obligation,after the obligation to take the necessary measures to fuzzy zone.Combined with the above case analysis,the paper points out the reasons for restricting the expansion and application of the safe harbor rules.Network service providers face different information advantages when they make infringement decisions,because the object of copyright and patent is different in the degree of digitization.Then from the the reverse side,the safe harbor rules mechanically applied to a series of judicial dilemmas caused by network patent infringement,the abuse of notice-delete rules,the damage to the interests of the notified party,and the injunction system in the overhead patent system.Finally,the safe harbor rules in the network copyright infringement.Although there are relatively perfect rules,but the legislative and judicial practice often focuses on the judgment of the fault and ignores an important element in the notice-delete rules——notification.Starting with the effectiveness of the notification,the author puts forward some suggestions for improving the rules of safe harbor rules.That is to say,the effectiveness of the qualification notification and unqualified notification should be stipulated separately,so that the initiative of the network service provider can be better transferred.And the perfection of safe harbor rules in patent infringement.