A Study On The Duty Of Care Of Internet Service Provider In Copyright Infringement Under The Background Of Algorithmic Recommendation Technology

Study on the duty of care of internet service provider is of great significance to the regulation of internet copyright infringement.The duty of care arises from the judgment of negligence.It has both the functions of subjective fault determination and behavior guidance.Many tort law theories hold that the duty of care derives not only from the provisions of the law,in certain circumstances,there is also a general duty of care.To define the limits of the general duty of care in individual cases,common law developed the "Caparo test" from jurisprudence,which is consisted of foreseeability,proximity,fairness.In China’s traditional legislation,the duty of care of internet service provider is mainly embodied in the three core rules of "notice and take-down","red flag" and "necessary measures".However,under the current background of the widely use of algorithmic recommendation technology,the duty of care of internet service provider under the existing legal framework highlights its limitations.China has responded by issuing judicial interpretations and issuing administrative documents.However,there are still deficiencies such as the low hierarchy of legal effect and the unclear definition criteria.Starting from the basic theory of the duty of care,combined with the experience of domestic and foreign governance of Internet copyright infringement in the development of new technologies.The duty of care of China’s internet service provider can be improved from the following aspects: First,added the positive duty of care centered on filtering obligation through judicial interpretation.Second,clarify the specific circumstances that can be considered in judicial practice of foreseeability,proximity,fairness through China’s "Guiding Case System".Third,carry forward the leading power of administration to promote the establishment of algorithm filing and algorithm interpretation mechanism for making up for the lack of regulation of the algorithm itself.