Research On "Notification-Removal" Rules From The Perspective Of Network Intellectual Property Protection

In China,the application scope of "Notification-Removal" rule is not limited to the field of online copyright infringement,but also includes other fields,such as the infringement of reputation right,patent right and trademark right.It is an important rule for the right holder to seek relief after being infringed in cyberspace.However,in terms of the protection of intellectual property rights,there are no differentiated provisions according to the characteristics of different types of intellectual property rights,and the "Notification-Removal" rule has the limitation of "one size fits all".With the advent of the era of algorithms and new network services,this limitation has been magnified,and the "Notification-Removal" rule has lagged behind in its practical application,exposing various problems and breaking the balance of interests among the network service providers,the public and the right holders.Furthermore,the application of "Notification-Removal" rule appears dissimilar,mainly including the abuse of "Notification-Removal" rule and the rigid application of "Notification-Removal" rule.Abuse "Notification-Removal" rule mainly embodied in the network service provider of active or passive into "Notification-Removal" rule of the adjusting range,ignore the rule of "Notification-Removal" the main body of the eligibility requirements,and some rules of intellectual property to use "Notification-Removal" rule on the review,as a tool of unfair competition,The launch of a large number of malicious complaints to the interests of the merchants.The rigid application of the "Notification-Removal" rule is mainly reflected in the failure to distinguish the duty of care requirements of Internet service providers,resulting in a state of interest imbalance between Internet service providers and right holders.At the same time,in judicial practice,some judges also began to gradually break through the original legal provisions and make flexible application of the "Notification-Removal" rule,so as to guarantee the balance of interests between the ISP and the right holder.Therefore,it can be seen that the application of "Notification-Remotion" rule in the field of online intellectual property infringement in China is too extensive,and there is no positive interaction between technology and law,resulting in an obvious gap between the practical effect of "Notification-Removal" rule and the legislative expectation.In order to break through the current dilemma of the application of the "Notification-Removal" rule,the modernization reform of the "Notification-Removal" rule should be carried out,mainly from the adjustment and optimization of the "Notification-Removal" rule and the improvement of the relevant supporting systems for the reasonable application of the "Notification-Removal" rule,so as to return to the original legislative intention of the "Notification-Removal" rule.In terms of the optimization of the "Notification-Removal" rule,firstly,different standards of qualified notices can be set to meet the needs of different types of intellectual property infringement.Secondly,the relevant judicial interpretation should define the scope of ISPs,which is helpful to solve the problem of infringement of new ISPs and avoid the abuse of the "Notification-Removal" rule.Finally,it is clarified that the necessary measures do not include the transfer of notice and the content contained in the duty of care of the network service platform,and the relationship between the necessary measures and the transfer of notice is clear,so as to give play to their different legal values and avoid adding unnecessary burdens to some enterprises.In addition,in the reasonable and differentiated application of the "Notification-Removal" rule,it is emphasized that the "Notification-Removal" rule should be applied according to the characteristics of patent right and trademark right,and the relevant supporting systems should be improved to deal with the problems arising from the rigid application of the "Notification-Removal" rule.For example,a collaborative mechanism for intellectual property protection in e-commerce could be established to address the problem of ISPs’ incompetence in determining complex patent infringement and confusing trademark infringement.Finally,the conclusion,on the protection of intellectual property rights,still need to constantly adjust optimization "Notification-Removal" rules and perfect the relevant supporting system,in order to solve "Notification-Removal" rules apply with various problems occurred in implementation regression "Notification-Removal" rule of balancing of interests,formed the benign interaction between the technology and the law.