Study On Regulations Of Abuse Of "Notice And Take Down" By Rights Holder

In the Internet era,people's lives are almost all digital,and people can find anything on the Internet that meets their personal needs,either tangible or intangible.In the field of Internet intellectual property rights,right holders can use the "notice-takedown" rule to stop infringements in a timely manner.However,in recent years,due to loopholes in the design of the rule,a large number of rights holders have abused the "notice-takedown" rule,and even in some cases,the legal rights and interests of the notified person have been irreparably damaged.Based on the current status and applicable background of the "notice-takedown" rule,this article specifically analyzes the present forms and remedies of the abuse of the "notice-takedown" rule by Chinese right holders,focusing on the nature of the abuse of the "notice-takedown" rule,analyzing the subjective fault elements,malicious notifications and punitive damages,on the basis of which relevant countermeasures are proposed.Focusing on the abuse of the "notice-takedown" regulation by right holders,this article is divided into four chapters to carry out specific research and explanation:The first chapter mainly discusses the current situation of the abuse of the "notice-takedown" rule by the right holders and the problems of existing remedies.The first section of this chapter starts from the legislative background of the "notice-takedown" rule,and introduces the legislative origin of the "notice-takedown" rule,as well as China's legislation and applicable background.The second section starts from the perspective of the subject matter of the "notice-takedown" rule,and analyzes the current forms of abuse of the "notice-takedown" rule by rights holders in Copyright,Trademark and Patent.And then it focuses on the problems in application of the "notice-takedown" rule,the lack of detailed liability for false notification and malicious notification in Article 42(3)of the Electronic Commerce Law,the current judicial remedies for the abuse of the "notice-takedown" rule by rights holders,presenting cases that are regulated in accordance with the Tort Liability Law and the Anti-Unfair Competition Law,as well as the aforementioned remedies' limitation.The second chapter of this paper starts with the analysis of the legitimacy of the rights holder's use of the "notice-takedown" rule,and focuses on the definition of the abuse of the "notice-takedown" rule by the rights holders.Abusing of "notice-takedown" rule is one type of abuse of procedural rights.Based on the definition of the abuse of the "notice-takedown" rule by the rights holder,the forms of the rights holder's abuse of the "notice-takedown" rule are classified to two types.The third chapter focuses on the identification and constituent elements of false notifications and malicious notifications in accordance with Article 42(3)of the Electronic Commerce Law.This chapter analyzes the components of liability for false notification and malicious notification,focuses on the subjective fault requirements,and demonstrates that the presumption of fault and the liability for no fault are applicable.Finally,in the third section,the malicious notice is further identified,and the details of punitive damages are explained.Chapter four is based on the above theory and current situation,and puts forward some legislative suggestions on how we should regulate the abuse of the "notice-takedown" rule by rights holder.The first is to improve the relevant laws and regulations of Intellectual Property to solve the abuse of the "notice-takedown" rule by the rights holders;the second suggestion is to actively use the competition rules to control the abuse of the "notice-takedown" behavior,may adopt "inhibit competition with purpose" clause;Finally,to suggest when amending the Electronic Commerce Law or issuing relevant judicial interpretations,different response mechanisms should be set up for different intellectual property rights,or counter-notifications should be preceded.