Research On Duty Of Care In Copyright Infringement Of Internet Service Providers

The duty of care of the ISP is the core of identifying the fault of the network service provider and the objective standard for determining the fault of the network service provider.It provides a scientific measurement standard for the judgment of the infringement liability of the ISP.For a long time,the duty of care of ISP and the duty of copyright review have been separated and opposed in mainstream views and judicial practices in the academic world.In recent years,the domestic practice community has continuously improved the duty of care of ISP and has developed higher duty of care and duties compatible with information management capabilities in judicial practice.These duties are often equal to the duty of copyright review in terms of legal effectiveness.In order to comprehensively analyze in judicial practice,the phenomenon of the confusion between the duty of care of ISP and the duty of copyright review,the factors that the court determines the higher duty of care,and the actual effect of the higher duty of care of ISP,this article adopts the PKULAW and other data sources to collect 84 relevant copyright dispute cases from 2019 to 2020,through empirical analysis to understand the specific identification standards of the duty of care of ISP in practice,and summarize the practical issues related to the duty of care of ISP in practice.Through sorting and summarizing the cases,it is found that in judicial practice,the safe harbor rule is mainly used to determine whether the network service provider constitutes know,and the duty of care is mainly used to determine whether it constitutes should know.In the safe harbor rule,the courts may not have uniform standards for determining effective notifications.There are many problems in the relationship between duty of care and duty of copyright revie,also the application standards of the duty of care.First,the court’s determination of whether ISP should bear the duty of care or the duty of copyright review is not uniform.Second,the higher duty of care developed in judicial practice will lead to the assumption of the duty of copyright review of ISP.Third,there are different standards for identifying factors of higher duty of care.Fourth,the content of the obligations that are compatible with information management capabilities is not clear.Fifth,the reasonable technical measures of ISP lack clear standards.In the third chapter of this article,focusing on the above issues,firstly analyzes the review obligations of ISP.The second part of this chapter analyzes the legal basis of the duty of copyright review into the duty of care system in detail.By analyzing the rationality and necessity of the duty of copyright review into the duty of care system,it is concluded that the duty of copyright review should be included in the duty of care system.After the duty of copyright review is incorporated into the duty of care system,the duty of care system of ISP needs to be effectively reconstructed,which is divided into the duty of care under the lower-level safe harbor rule and the higher-level special review duty for copyright.Then use vague concepts such as higher duty of care and duty compatible with information management capabilities in the setting of special review obligations.It is necessary to reset the original higher duty of care after effective reorganization.Based on the original higher duty of care identification factors,the special review obligations of copyright are separated into four parts:special review obligations for ISP obtained direct economic benefits,special review obligations for specific service models,special review obligations for well-known works,and duplication special review obligations for infringing content,and at the same time clarify the applicable standards of these four types of special review obligations for copyrights,and effectively solve the problem of different identification standards for higher duty of care.After the network service provider’s duty of care system is reconstructed,there are still some problems need to be solved.This article puts forward specific suggestions for improvement in Chapter 4.First,the determination of a valid notice under the safe harbor rule should strictly apply statutory standards to solve the problem of malicious notification.Second,the application of the duty of care of ISP should be effective and perfect.In judicial practice,the court should comprehensively consider the form of infringing content,the type of network service provider,and information management capabilities to determine which level of care the network service provider should bear obligation.Finally,the content and evaluation criteria of reasonable measures should be specifically set.my country should set reasonable measures with copyright content filtering measures as the core and apply the "principle of utmost good faith" to the criteria for judging reasonable measures.At this stage,China should not generally require ISP to adopt copyright content filtering measures.Instead,the government should promote the cooperation model between right holders and ISP and construct China’s copyright filter system step by step.