| With the continuous updating and development of network technology,our country’s e-commerce is developing very rapidly,but it also brings many problems.“E-Commerce Law”deliberated and adopted in 2018 defines the application of the “Notice-and-Takedown” rule in the field of e-commerce,and wants to have an effective regulation on the serious infringement of intellectual property rights in the field of e-commerce.Although the“Notice-and-Takedown” rule in “E-Commerce Law” has been greatly modified and improved,there are still some problems,such as unclear constituent elements of effective notice,unclear duty of care of e-commerce platform operators,and unreasonable “15-day waiting period”clause.As for the constituent elements of effective notice,we should clarify its formal and substantive elements,determine the formal elements as written form,and determine the substantive elements as the subject of notice,subjective goodwill and preliminary evidence.Specifically,the notification subject includes the intellectual property right holder,the agent entrusted by the right holder and the licensee.Subjective goodwill is reflected through prior review.For copyright and trademark infringement,the preliminary evidence is mainly the ownership certificate,and for patent infringement,it should also include the infringement comparison table.In terms of the duty of care of e-commerce platform operators,it includes pre-event duty of care and post-event duty of care.The pre-event duty of care mainly includes the examination of the seller’s identity information and the establishment of relevant access rules.In several special cases,it should also include the examination of goods in advance.The post-event duty of care is mainly reflected in the formal examination of the content of the notice and the substantive examination of identity information and ownership certificate.As for the “15-day waiting period” clause,it will lead to adverse consequences such as overburdened judicial resources,increased cost of rights protection for obligees and abuse of the clause by malicious notifiers.It is suggested to improve the clause by introducing guarantee and counter guarantee mechanism,flexibly dealing with the period of necessary measures and expanding the scope of necessary measures. |
