| In order to fight Internet infringement,according to the Civil Code,after receiving the notice from the right holder,the Internet service providers must promptly take "necessary measures" to the infringement committed by the Internet users,otherwise it would accept the joint tort liability for the expansion of the result of infringement,but the conditions of identificating "necessary measures" have not been clearly defined.Imposing this obligation although helps to fight Internet infringement,it also increases the duty of care the requirements that Internet service providers make a judgment for infringement,and increases the burden of industrial development.Although flexible explanations are conducive to responding to ever-changing infringements,it also leads to uncertainty of identificating "necessary measures" and lowers expectations of market entities for their behavior.Therefore,how to maintain reasonable limits of the explanation of "necessary measure" to balance the relationship between industrial development and rights protection has become a important problem in the infringement identification of Internet service providers.In view of the fact that the "notice-necessary measures" rule originated from the introduction of the "safe harbor rule",its scope of application has experienced the development from the copyright secondary infringement identification rule to the general Internet infringement identification rule.This paper first studies the formation process and the institutional significance of "notice-necessary measures" rule in China’s civil legislation,as well as the specific issues that must be paid attention to in determining the reasonable limits of "necessary measures".What is more,through the investigation and analysis of typical cases,holds that the effective notice,the technical feasible scope of taking necessary measures and the judgment of necessity of concrete measures have effect on whether "necessary measures" are appropriate.Last,this paper holds that improvement of current rules,for timeliness judgment of measures,should adhere to the combination of form and substance and clearly define standard of proof of preliminary evidence in qualified notification examination.For the scope and necessity of the measures,it should be balanced between the purpose and the means,and adhere to proportionality principle to comprehensively consider the appropriateness,effectiveness and balance of the measures.For the requirements of duty of care of Internet service providers,it should combine the service types,the profitability,the business model,the technical level and other factors of Internet service providers to comprehensively determine.Whether they are pre-management measures,in-process assistance measures or post-maintenance measures,it should be within reasonable and prudent limits,and autonomous space should be reserved for Internet service providers so that their autonomy can be fully utilized. |
