Internet Service Provider's Filtering Obligation On Copyrighted Content

The development of filtering technology has improved the efficiency in dealing with online copyright infringement,and to some extent affected the balance of interests maintained by the traditional safe harbor principle.Under the new technical background,internet service providers are no longer in a completely passive position in online copyright infringement,technological advancements enables them to supervise and control user-generated content more vigorously.Therefore,it necessary to reform the traditional online copyright infringement liability system by improving the applicable standards of the safe harbor,and require the internet service provider to bear filtering obligation within a reasonable scope,so as to make up for the shortcomings caused by the automatic distortion of the “Notice-takedown” rules.In view of the fact that there are few academic discussions on this field in China,many basic problems related to the necessity of obligation setting and system construction remain unsettled.Therefore,this thesis will take European and American legal practice as the main reference and put enough consideration into the actual situation in our country to study the internet service provider's filtering obligation in-depth.This thesis consists of four parts:The first part studies the origin and legal dynamics of filtering obligation.The internet service providers under the protection of the traditional safe harbor do not have the obligation to adopt filtering measures.However,the rights holders are putting continuous efforts into narrowing down the application scope of the safe harbors by litigation and lobbying.At home and abroad,the policies against copyright infringement liability of internet service providers are also getting stricter.Because of the dual pressure and self-commercial interests,internet service providers begin to undertake filtering obligation voluntarily.At the legislative level,in 2016,EU has officially proposed a legislative bill formulated the filtering obligation.There have also been cases in the United States that have aggravated the burden of internet service provider.The domestic "E-commerce Law" and the judicial interpretation of the Supreme People's Court also demonstrate the inclusive attitude of our legislative and judicial authorities toward technical measures.The second part mainly studies the rationality of introducing filtering obligation.In theory,the "Notice-takedown" rule is a helpless move taken at the primary stage of the Internet development to promote the growth of the industry.Therefore,it is no longer reasonable after decades of technological development.At the technical level,content recognition technology has evolved from metadata search,hash identification,to digital fingerprint technology,combined with the help from artificial intelligence and block-chain technology,the development of the technology has been sufficient to support the filtering obligation.Furthermore,the shortcomings of large-scale automation of the "Notice-takedown" have already begun to emerge,using rules from the manual review era to regulate the practice of the machine age will only lead to more serious value misplacement.The third part mainly studies the limits of Internet service providers' filtering obligation.First of all,in terms of filtering standards,Internet service providers should at least adopt technical standards set by the state,and the content standards should balance the interests of all parties.Secondly,the burden of filtering costs,The Internet service provider should bear certain filtering costs,but may also require the right holders to perform partial sharing.Finally,in terms of filtering mode,using the Content ID and EU legislation as reference,only when the copyright owner makes a request,the Internet service provider is obliged to filter the relevant content.The fourth part puts forward suggestions on the system construction of filtering obligation.Firstly,on the subject of obligation,only the internet service providers storing and giving access to user-uploaded content for commercial purposes and promote the content dissemination in any positive way should bear the obligation of filtering,while infrastructure service providers,public welfare websites and open source code software developing platforms should be excluded.Secondly,in the design of the filtering obligation system,more attention should be paid to the protection and relief of user rights.Finally,the copyright content filtering system should take into account the coordination of existing systems such as fair use and“notice-takedown”rules.