On The Subjective Elements Of Network Copyright Contributory Infringement

In the subject aspect of network copyright contributory infringement,the current "knowledge" standard in chinese law and judicial practice has many problems,such as neglect of the will factors of fault,contradictory statements on the cognition factor of fault,no distinction of specific fault forms,and wrong application of the theory of duty of care.In order to solve the above problems,we should return to the traditional way of fault identification,namely,to comprehensively analyze both th recognition factors and will factors,on the basis of this,to discuss other aspects of the fault.In the respect of cognition factors,we can draw lessons from the theory of judicial proof and divide the "knowledge" into the "identified knowledge" and"constructive knowledge"."Fully aware" belongs to the "identified knowledge"and "have reason to know" belongs to the "judicial constructive knowledge",while "shall know" has two different meanings,namely,"constructive knowledge" and "unkown",and as for current rules,it mainly refers to"constructive knowledge".Relevant legislation needs to unify these expressions of cognitive factors,and timely upgrade the judicial presumptions which exist high probability and in accordance with the copyright protection policy to legal presumption.The factors of will can be divided into two forms:permission and rejection.Thus,the copyright contributory infringement of the ISPs includes three kinds of fault forms:intentional,gross negligence,abstract light negligence.In the case of"identified knowledge",we can directly presume that the ISPs are willful,as long as we publicly disclose the presumption process and describe it in the judgment documents.Due to the principle of "prohibition of second presumption" in the theory of judicial proof,under the circumstances of "constructive knowledge",we shall no longer presume that the ISPs permit the direct infringement to happen,that's to say,the corresponding fault form of "constructive knowldge" is not intentional,but gross negligence.The discussion of the ISPs' duty of care should be limited to the tort of negligence,because only the negligence liabilities of the ISPs are based on their breach of duty of care.Prior to receiving the eligible notice of the right holder,the ISPs only assume the duty of care of common people,while after receiving the notice,they shall behave as a good administrator.The Article 73 in the Draft of Copyright Law of PR.C still ignored the will factor of fault,so it should be corrected.We can try to introduce the standards of intentional and gross negligence,and further clarify the nature of the indirect liability by by endowing the ISPs with the right of recourse.