Study On The "Notice And Take Down" Rule In Intellectual Property Infringement In China

The rapid development of the Internet leads to the increasingly rampant infringement of intellectual property rights on the Internet.As an important rule to deal with the infringement of intellectual property rights on the Internet,the "notice and take down" rule sets up a time-effective remedy way for the obligee,and at the same time standardizes the behavior of the obligee,the Internet service provider and the network user.However,in the process of "notice and take down" rule applying to the judicial practice of our country,there are many problems caused by the absence of legislation and confusion of theoretical understanding.In order to realize the effective application of "notice and take down" rule in the field of intellectual property infringement in China and to construct a perfect "notice and take down" system,this thesis focuses on the following parts:The first part mainly discusses the theory and legislation of "notice and take down" rule.It discusses the meaning,legal nature and basic principles of this rule;It introduces the legislative background and evolution of this rule.It studies the relevant system design outside the region and analyzes the feasibility of transplanting the system design into China’s legal system.It also discusses the legislation present situation and the trend in our country,and there is still a lack of legislation.The second part mainly studies the scope of application of "notice and take down" rule in China.It discusses the scope of Internet service providers,and respectively studies whether access service and cache service providers can apply this rule.It discusses the scope of the subject of notice and the remedy scope of notice,and distinguishes the subject of the right of notice and the conditions for exercising the right of notice in different infringement areas.The third part mainly discusses the problems of "notice and take down" rule in China.It points out the problems of the obligations of Internet service providers,including the improper parts of the obligations to review the notice,to take necessary measures and to pay attention after the fact.It discusses the judgment criteria of notification and points out the difficulties and doubts in the judgment process of qualified notification and error notification.It also discusses the problems existing in the counter notification rule and analyzes the unreasonable and missing parts in the current counter notification rule.The fourth part mainly studies the perfection of our country’s "notice and take down" rule.It clarifies the obligations of Internet service providers,reasonably explains the obligations to take necessary measures,and reasonably determines the duties of ex post care.It defines the judgment standard of notification,constructs the judgment standard of qualified notification in different infringement fields,and defines the judgment standard of error notification.It also studies to improve the counter notification rule,reforms the counter notification procedure stipulated by the current law,and constructs the ideal counter notification procedure.