On The Application Of The Principle Of Copyright Infringement Of Network Service Provider

From the perspective of the comprehensive theory and the current judicial practice,the principle of copyright infringement of network service providers has not formed a unified applicable standard,and there are even the phenomenon of different theories and inconsistent judicial judgment,so its systematic construction has a long way to go.After summarizing and distinguishing relevant theories and clarifying the internal connection between various theories,the real reasons for the above phenomenon are: first,it does not clarify the relationship between the application of the imputation principle and the copyright claim;second,there is no basis for the specific application of the imputation principle.Clarifying the relationship between the application of liability principle and copyright claim is the premise of clarifying the scope of the principle of copyright infringement liability of network service providers.There is an essential difference between copyright claim and infringement claim,which makes the two independent copyright protection.After tracing the source of the "responsibility" in the principle of attribution,it is found that the exercise of copyright claim does not need to discuss the principle of imputation,and the discussion of the principle of imputation is based on the exercise of the right of infringement claim.Therefore,a scientific and perfect copyright claim system should be established to clarify the specific connotation of copyright claim,so as to exclude the application of the principle of attribution.In order to match the legislative style of the Civil Code,the construction of the copyright claim should take the specific connotation of the copyright claim as the reference to the absolute claim of the exclusive copyright.Its specific connotation includes elimination of obstruction,elimination of the right to claim danger,elimination of influence,right to restore reputation,abandonment of claim and right to claim information,etc.Only when it is clear that the above copyright claim does not involve the principle of imputation and the principle of imputation returns to the liability for infringement damage as soon as possible can the specific application standards of the principle of copyright infringement liability of network service providers be clarified on this basis.The copyright infringement in the network field is different from the general infringement,and its infringement mode and the infringement subject are special.After systematic practice and theoretical investigation,this paper proposes to distinguish the path of "direct tort and indirect tort",and discuss the liability principle of direct tort liability and indirect tort liability of network service providers respectively.In practice and theory,different courts and different scholars have differences on the application of the principle of direct tort liability,which is divided into two positions: supporting the presumption of fault liability and no-fault liability.In this regard,this paper analyzes the nature and characteristics of direct infringement,analyzes the principle of interest balance throughout the identification,and examines the "matching degree" of fault presumption and no-fault liability and direct infringement,so as to conclude that the principle of fault presumption should be applied to direct tort liability.In the indirect infringement liability of network service providers,the influence of "the balance of interests","infringement control" and "network technology development" on the application of the liability principle should be fully considered.First,the application of the principle of indirect infringement should take into account the rights and interests of copyright owners,the freedom of action of network service providers and the development of network economy,so as to balance the interests of the three parties.Second,take the control ability of the network service providers over the infringement as the standard,follow the law that the stronger the control ability,the heavier the duty of care,and set the reasonable duty of care for the network service providers.Thirdly,fully understand the impact of the development of algorithms and other network technologies on the application of the imputation principle,and study the application of the imputation principle under the influence of the algorithm technology with the dynamic development of thinking.After fully considering the above three factors,this paper believes that the current liability principle of network service providers should be mainly fault liability,but with the continuous development of network technology,the presumption of fault liability will have a certain application space.