Study On Internet Service Provider's Copyright Filtering Obligation

In recent years,with the rapid popularization and development of the Internet,people are no longer unfamiliar with the interactive Web 2.0 era.In the era of Web2.0,people are more involved in the production and dissemination of online works.The strong public communication ability makes the Internet a hotbed of pirated content,which poses new challenges to the copyright system.In recent years,the strategy of cooperation between internet service providers(ISPs)and copyright owners to combat piracy has emerged in practice,and by adopting technical filtering measures to filter copyright content,we can achieve a good effect of restraining piracy.This paper aims at discussing the copyright filtering obligations of ISPs.The first chapter is an overview of the copyright filtering obligations of ISPs.First,the connotation of ISPs and copyright filtering obligations is defined.The ISPs of this paper belongs to the narrow sense of technical service provider.The copyright filtering obligation is the obligation of the ISP to protect the copyright by means of technical means.Specifically,the rights holder proposes a filtering request to the ISP,and after receiving the requests,ISPs incorporate the works into the filtering system.Then the system identifies and compares the contents,and adopts such measures as deletion or blocking.Secondly,it proposes different classifications of copyright filtering obligations.This paper deals with an after-the-fact and limited filtering obligation.Finally,a comprehensive analysis of several obligations of the ISPs discussed by the academic community is carried out,and on this basis,the reason for using the term “filtering obligation” is proposed.The filtering obligation is a reasonable extension of the deletion obligation.It is a transition from relying on manual deletion to relying on technical filtering.It still belongs to the scope of attention obligation,and it is different from the security obligation and review obligation of ISPs.The second chapter mainly introduces the rationality of the ISP's filtering obligations.First,the current system has limitations in protecting online copyright.There has been a problem with the “safe harbor” that has been chosen as a reasonable system.From the perspective of external conditions,with the development of network technology,the technical basis for its existence has changed.From the perspective of its own regulations,there are issues about its legal provisions,including the lack of judgment standards for qualified notices,the ambiguous provisions on the ISPs' obligation,and the lack of remedies for erroneous deletions.The “safe harbor” imposes excessive obligations on rights,along with technology development,the ability of right holders to find infringing content has declined.These have resulted in the high cost and inefficiency of the “notice-takedown”.In addition,as a technical self-help form of anti-circumvention technology protection measures,it does not play the role of anticipation of copyright protection.Second,copyright filtering has real needs.There are tens of millions of online pirated copies,and copyright must be protected in an effective way.Copyright filtering can further improve the provisions of the law,lighten the burden of ISPs and right holders,and improve the efficiency and effectiveness of copyright protection.Third,the ISP's commitment to copyright filtering has a certain technical basis.Advances in content recognition and filtering technologies have made content filtering possible.Mature text filtering technology and evolving image and video filtering technologies have become the most basic prerequisites for ISPs' copyright filtering obligations.Fourth,the copyright protection obligation of ISPs has a legal basis,which is in line with legal philosophy,law and economics,and the balance of interests.Finally,it responds to the challenge of copyright filtering obligations in terms of filtering costs and basic user rights.The third chapter is an extraterritorial study of the copyright filtering obligations of ISPs.In the EU,the adoption of the Digital Single Market Copyright Directive indicates that ISPs should adopt effective content identification technology to filter copyright works.In judicial practice,there are also court judgments on the use of technical measures to filter infringing content.In the United States,legislation gradually tends to make ISPs play a more active role;in the judicial process,there are also judgments on filtering obligations;in industry practice,many websites adopt filtering technologies,such as the Content ID of YouTube,UGC principles,etc.,and there are specialized institutions that provide copyright filtering services,such as Audible Magic,etc.Japan,the United Kingdom,Russia and other countries are aware of the importance of adopting technical means.Legislation tends to let ISPs take technical measures to protect network copyright.The fourth chapter is about the establishment of the copyright filtering obligation of China's ISPs.China has accepted the copyright filtering of ISPs to varying degrees in legislation,judiciary and industry practice.However,the relevant legal provisions are relatively low and lack specific operation rules.Although some ISPs have begun filtering measures in the industry,the scope is too narrow,and there is still a hindrance to voluntary adoption of the measures in practice.Based on this,it is necessary to stipulate and establish relevant rules in law.In the specific rule construction,the applicable object should be limited to the storage space service provider at present;in the selection of the filtering scope,the problem of “fair use” and matching degree should be considered;in the trigger mechanism,the form of "quasi-notification" should be adopted.In the article,the composition,reason,rationality and relationship with the notice of the "quasi-notification" are introduced in detail.In the cost-sharing mechanism,a reasonable charging mechanism can effectively share the cost of the ISP,and a moderate relief mechanism must also Indispensable;In terms of liability,the breach of the filtering obligation is the consideration factor for the fault determination in the indirect liability,because the copyright filtering obligation is still part of the duty of care in the sense of tort law,and is not a mandatory obligation in the sense of administrative regulation.Finding the most reasonable copyright system in the development of technology is the goal we have been pursuing.Perhaps it is not the best institutional choice to emphasize the filtering obligation of ISPs,but it can be considered as a kind of good solution to online privacy under the existing technical conditions.