In recent years,the copyright infringement cases of network service providers are increasing,and the related research in academic circles is gradually increasing.Network service providers can be divided into two types:internet content provider(ICP)and internet service provider(ISP).In terms of infringement,the former generally involves direct infringement,while the latter usually provides network communication intermediary service for network users,and generally does not involve direct infringement.However,when the latter provides services that objectively provide substantial assistance to the direct infringer,it also constitutes an indirect infringement of copyright.Therefore,the copyright infringement of technical service providers is more complex than that of content service providers.Regarding the identification of indirect faults of network service provider,the relevant legislation of our country is relatively clear.As for the fault form of indirect infringement by network service provider,the judicial circles have basically formed a kind of common understanding-the fault pattern of network service provider,which is divided into two types:"know" and "should know".Regarding the specific determination of fault standards although there are relevant guidelines in laws and regulations and judicial interpretation,there are still obvious differences in judicial practice,which leads to great differences in the judgment results of similar cases.In addition,every court has the different judgment criteria for the influence factors of fault determination,which leads to the paradox of "the same kind of case,the opposite judgment".In view of this,this paper takes "the judicial application of the rules of indirect copyright infringement of network service provider" as the object of discussion,through combing and analyzing the relevant cases of China adjudicative documents network.This paper probes into the judicial application of the standards of "know"and "should know" about the fault of network service providers.From January 2015 to December 2017,the paper selects 54 relevant case documents from Beijing,Shanghai and Guangdong,and analyzes the differences in judgment,problems and overall trends of the standards of "know" and "should know" in judicial practice in our country.On the basis of this,the paper puts forward some suggestions on how to identify the indirect faults of network service provider in our country.First of all,from the legislative level,this paper suggests that relevant laws should clearly distinguish and define "general duty of care" and "duty of special care" respectively,so as to clearly determine the specific criteria of "fault".Secondly,in the aspect of judicial application,this paper suggests that the judicial application of "fault determination standard" needs to combine with the specific case,follow the principle of seeking truth from facts,and make accurate and appropriate judgment.In particular,the "should know" standard of copyright infringement fault of network service provider originates from the duty of care in civil law,which requires that"the fact of infringement is very obvious" and that it should point to specific information.Therefore,judicial judgment needs to understand the legal intent,consider all kinds of circumstances,and correctly grasp the judicial judgment standard of "should know". |