Reflection On The Counter-notification System Of Intellectual Property Rights Of E-commerce Platforms In China

To deal with online intellectual property infringement,China first stipulated the notice-counter-notice system of Internet copyright right in the regulations on the protection of information dissemination right,But the law applies only to copyright infringement and to Internet service providers.Later,the tort liability law extended this kind of infringement to all Internet torts,including intellectual property rights,However,due to the complex diversity of Internet merchants and the personalized characteristics of various types of infringement,the law of tort liability is full of loopholes in dealing with intellectual property disputes of e-commerce platforms.The intellectual property right infringement of the emerging e-commerce platform is different from the traditional network intellectual property right infringement,In response to this phenomenon,the country promulgated and implemented the electronic commerce law.And in practice,it works with the tort liability law to solve the ipr infringement problem of e-commerce platforms.Electronic commerce law intellectual property notice deletion system is innovative,in which added counter-notification-option period rule to balance the interests of all parties to prevent malicious complaints.Compared with the corresponding rules of the digital millennium Copyright Act of the United States,China’s rules do not specify the exemption clause,nor does it specify the legal liability.From the institutional effect,It can lead to a flood of disputes into the judicial and administrative systems,Malicious notifier gets more speculative space,and the cost of the creditors in safeguarding the rights and interests will be increased.This is against the intent of the legislation.This paper tries to sort out the problems existing in the counter-notification system from the existing legal system of our country,draw lessons from the relevant foreign legal system,and put forward its own thinking.The first part mainly summarizes the problems of the "counter-notice" system in Chinese law.This paper mainly discusses the imbalance of rights and obligations among subjects caused by the counter-notification system and the identification of responsibilities of e-commerce platforms.Starting from the first case of malicious complaint in Hangzhou,this paper discusses the imbalance of rights and obligations between subjects.At the same time,taking the court decision as an example,this paper discusses the problem of different standards of liability determination of e-commerce platforms.The second part analyzes the inter-subjective rights and obligations under the anti-generic finger system.Specifically,there are two ways to restrict the remedy of notifying the right holder: administrative complaint and court action.The 15-day choice waiting period brings economic loss to the right holder,which gives false or malicious complainant.The third part analyzes the liability identification of e-commerce platform,and analyzes the constitutive requirements of establishing tort liability of e-commerce platform and the contradiction between judicial practice and e-commerce platform in dealing with online tort.The relevant provisions of the e-commerce law seriously weaken the right of review of e-commerce platforms,making them in a dilemma in dealing with online intellectual property disputes.The fourth part is the analysis of the above summary,put forward the "anti-notice" system of the "electronic commerce law" improvement Suggestions.In terms of legislation,the rights and obligations of each party should be redistributed reasonably,and in terms of judicature,the standards for determining the responsibilities of e-commerce platforms should be improved,and the right of review and decision of e-commerce platforms and the autonomy of the parties concerned should be fully respected.