Research On The Application Of "Notice And Takedown" Rule On E-Commerce Platform

With the continuous progress of Internet technology,digital economy has gradually become a new engine of economic growth.Thanks to China’s huge internal market,China’s e-commerce economy has developed rapidly since the beginning of the new century,showing an unprecedented new trend.Along with this trend,infringement of trademarks and patents on e-commerce platforms is increasingly rampant.Frequent infringement not only hinders the further development of ecommerce,but also goes against establishing the image of China as a big country in intellectual property protection.In order to solve the above problems,legislators introduced the " notice and takedown " rule originally applicable to the field of copyright to the field of e-commerce infringement disputes,in order to create a good transaction order and regulate the infringement in the field of e-commerce.The "notice and takedown " rule in line with China’s national conditions provides a basis for clarifying the responsibility of e-commerce platforms,but on the other hand,it also brings no small challenge to judicial application.Since the introduction of " notice and takedown " rule,its constituent elements have been gradually clarified from the aspects of applicable subject and applicable procedure in practice.The " notice and takedown " rule plays a role in promoting the progress of the Internet industry,alleviating the legal risks of service providers and effectively relieving the legitimate rights and interests of the right holders.However,in the application of the current situation,there are abuses of rules,the content and form of the "notice" sent by the right holder is not uniform,and the platform is different in the review.In terms of the application defects of the rules themselves,there are some problems,such as the imbalance of interests of all parties,the difference of "qualified" notice,the unclear reasonable period and the imperfect means of malicious complaint of the rules.In order to achieve good practical effect in the application of the rules in ecommerce platforms,the application of the existing " notice and takedown " rules should be optimized according to China’s specific national conditions.First of all,the application of the " notice and takedown " rule should follow the basic principles of collaborative governance,the consistency of power and responsibility and the principle of proportionality.Secondly,on the original basis,the " notice and takedown" rule should be further refined to clarify the situation that e-commerce platforms need substantial review,to refine the "qualified notice" and "counter-notice",to appropriately quantify the "necessary measures" and define the "reasonable period" to make the rule more specific.Finally,it explores and improves supporting systems such as pre-litigation prohibition optimization,credit evaluation system mechanism,"false notice insurance",in order to promote the development of e-commerce industry.