Improvement Of The Notice And Counter Notice System In The E-commerce Law

With the development of information communication technology and network communication technology,the digital economy has become a hot spot for economic growth.Various countries have seized the opportunity to vigorously develop e-commerce,but at the same time,intellectual property infringement on e-commerce platforms has become increasingly rampant.It affects the booming of e-commerce and thus limits the space for economic growth.Under such circumstances,increasing the protection of intellectual property rights in the field of e-commerce has become an important issue.The E-Commerce Law of the People's Republic of China,as adopted at the 5th session of the Standing Committee of the Thirteenth National People's Congress of the People's Republic of China on August 31,2018,and shall come into force as of January 1,2019.In order to strengthen the protection of intellectual property rights in the field of e-commerce,the notice and counter notice system has also been introduced into the law.Compared with the Tort Law of the People's Republic of China and Regulation on the Protection of the Right to Communicate Works to the Public over Information Networks,the E-Commerce Law expands the scope of application of the notice and counter notice system to intellectual property infringement in all e-commerce fields,including patents and trademark rights,and thecontent of the rules is more detailed,which increases the punitive damages for malicious notifications and is more operative.However,the notice and counter notice system stipulated in the E-Commerce Law still has shortcomings,the most prominent of which are the following two problems:First,for intellectual property rights holders and operators within the platform,although the E-Commerce Law already provides punitive damages for malicious notifications in Article 42(3).Sending prima facie evidence of infringement to the platform operator can achieve measures that greatly affect the operators in the platform,such as deleting links and removing products,resulting in low rights of rights holders and difficulties in the relief of operators within the platform.After the introduction of the E-Commerce Law,the most controversial clause was the "15 days" waiting period,which was not mentioned in the previous draft review,but added to the wait at the end of the draft.The purpose of "15 days" may be to correspond to the "14 days" stipulated by the US DMCA,but it has actually given the intellectual property rights holders an opportunity to fight competitors.As the current domestic legislation,including the E-Commerce Law,it is common practice,after receiving the notice of the intellectual property right holder,if the notice is a qualified notice after review,regardless of whether the operator in the platform sends the counter-notification in time,they should immediately take the necessary measures to remove the controversial products,delete relevant links or reduce the reputation scores of the operators in the platform.Even if the counter-notification is taken,it is difficult to avoid the result of at least 15 days of taking the necessary measures,so that the willingness of the operators in the platform to send counter-notifications is reduced.If the law stipulates that the counter-notification can be sent in time to terminate the necessary measures or to send a qualified counter-notification within a short period of time,or even take the necessary measures,the operators in the platform will be more motivated to send counter-notification to protect their own interests.When the effect of sending a notification becomes less significant,the existence of counternotice system can reduce the phenomenon of spamming notification to a certain extent.Second,for the platform operators,although E-Commerce Law has stipulated that the notice and counter notice need to contain prima facie evidence of infringement or non-infringement,there is no specific content or degree of proof of“primary evidence”.The review obligation of the operators in the platform is limited to the examination of the formal elements or the substantive content,which inevitably brings difficulties to the auditing practice of the platform operators.At the same time,it is worthy of attention whether the points of review in different types of intellectual property infringement should be differentiated.Platform operators are in a more complicated position than intellectual property rights holders and operators within the platform.Due to the contractual relationship with the operators in the platform,the platform operators cannot freely delete the operators in the platform without reasonable reasons;otherwise it may have to bear the liability for breach of contract.In addition,the richness of the information published by the operators in the platform and the volume of transactions reached will directly affect its own revenue;however the interests of platform operators and operators within the platform are not always consistent.As a public trading platform,it needs to create a safe and trustworthy image in the minds of consumers.In other words,audience reputation and long-term interests make it possible to prevent intellectual property infringement on the platform.Therefore,for platform operators,the notice and counter notice system should be specific and operational,which can help them avoids legal disputes.The reason why the US Digital Millennium Copyright Act establishes a “safe haven” rule is to avoid the abuse of strict liability in copyright infringement.The legislative origin and internal logic of the comprehensive "safe haven" rules should be able to limit the review obligations of platform operators to the scope of formal examination.At the same time,it can more effectively play the notice and counter notice system is efficient,and provides intellectual property rights holders and operators within the platform with a space to protect their rights and interests beforethe commencement of the proceedings.Therefore,from the two aspects of the internal logic of the “safe haven” rules and the positioning of the platform operators themselves,this paper analyzes that the platform operators should only conduct a formal review of the notice and the counter notice.Based on the problems discussed above,combined with China's national conditions and analysis of foreign practical experience,this paper intends to reconstruct from the program.By drawing on the legislative experience of the United States,Japan,and Canada and the practical exploration of China's e-commerce platform,the author proposes to re-establish the notice and counter notice system,increase the punitive damages of malicious counter-notification,and encourage the establishment of credit evaluation within the platform.