Research On Civil Liability Of Intellectual Property Right Infringement Of E-commerce Platform Operator

As an important factor to measure a country’s comprehensive national strength,innovation is an important driving force for the country and society to move forward.As an important manifestation of innovation,intellectual property is highly valued by the country.Nowadays,Internet technology is changing with each passing day.New online transaction models have developed rapidly due to their advantages such as wide variety,no-going,convenient and fast,etc.E-commerce platforms represented by Taobao,Tmall,JD.com and Pinduoduo lnc.are rising rapidly.Intellectual property infringement such as selling counterfeit goods and pirated books on e-commerce platform is also common,forming a tripartite legal relationship with the participation of e-commerce platform operators.On the one hand,the intellectual property right holder can investigate the tort liability of the direct infringer,on the other hand,he can also investigate the tort civil liability of the e-commerce platform operators under the condition of meeting the legal provisions.At present,the prevailing rules in the industry to determine whether e-commerce platform operators assume responsibility for infringement of intellectual property rights are scattered in several laws such as the Civil Code and the E-commerce Law,mainly including the “notice-delete” rule,the “declaration-time termination” rule,and The "know or should know" rule.The core of responsibility identification of e-commerce platform operators is that they are at fault,and only when they are at fault can they bear the tort liability.However,in the actual application of the above rules,there has been a problem of deviation from the identification path of fault,and different judgment paths have appeared.Firstly,in the principle of imputation,the principle of fault liability should be adopted,but it deviates from the principle of fault presumption.Under the guidance of the principle of fault presumption,the platform operators can not be exempted from liability if they can not provide proof and take timely measures,which actually increases the burden of proof of the platform operators.The second is the rules of "notification-delete" and "declaration-time termination" are understood as strict legal obligations.It is considered that the platform operator is not at fault as long as it takes necessary measures after receiving the notice,or the platform operator is not at fault as long as it takes timely termination measures after receiving the declaration.Third,the judgment standard of "should know" in the "know and should know" rule is unclear,and the "should know" rule is changed "Know" is transformed into the objective standard of the duty of care of the e-commerce platform operators,and the provisions of the duty of care are not perfect,which makes it difficult to identify the fault of the platform operators.Fourth,the qualified notice and reasonable time limit are the procedures of the above rules supplementation,under the rigid compliance notice and reasonable time limit,it is believed that as long as the platform operator takes the necessary measures in a timely manner after receiving the qualification notice or within a reasonable time limit,it shall be deemed not at fault.As the creators and managers of online trading spaces,e-commerce platform operators can quickly locate infringing links and take necessary measures.Their natural superior position requires them to assume more obligations and responsibilities.At the same time,attention should be paid to the balance of interests between platform operators and intellectual property rights holders.We should not only protect the legitimate rights and interests of the right holders,but also pay attention to imposing excessive obligations on the platform operators.This paper combs the basic theory of intellectual property infringement of e-commerce platform operators,summarizes the imputation principles and forms of liability of e-commerce platform operators,analyzes the legislative experience of the United States,Japan,Germany,the European Union and other foreign countries,and puts forward the following suggestions: First,from the perspective of legal interpretation,the newly adopted "Civil Code of the People’s Republic of China" shall be interpreted and applied,and the principle of fault shall be the only principle of imputation,and shall not deviate from the principle of presumption of fault.The determination of infringement must be based on whether it is To proceed with fault.Second,the "notification-delete" rule and the "declaration-termination" rule are used as auxiliary judgment standards and important factors for determining fault,even if the e-commerce platform operator takes the necessary measures in time,it cannot be based on this Determine that they are not at fault.Third,refine the objective standards of “should know”,that is,improve the duty of care of e-commerce platform operators,and more accurately determine faults.Fourth,abandon the formulation of strict eligibility notices and reasonable deadlines standards,and the observance of a reasonable period of time by the platform operator is one of the factors in determining that it is at fault.