| The development of information network technology has increased the channels and speed of data transmission for works.Compared with traditional methods,due to the concealment and ubiquity of online copyright infringement,copyright owners are more inclined to pursue the liability of internet service providers.Articles 1195-1197 of the Civil Code incorporate the rules of infringement such as the safe harbour rule and the red flag principle for internet service providers,and supplement the issue of indirect infringement by internet service providers with a new "counter-notice" system,while explicitly using "ought to know" as the subjective fault element.It also adds a new "counter-notice" system and explicitly adopts "knowledge" as a subjective fault element,which systematically provides guidelines for the conduct of right holders,internet users and internet service providers from a more equitable perspective.However,based on the complexity of new copyright disputes such as short videos,webcasting and algorithmic recommendations,the determination of copyright infringement by network service providers is still a difficult issue in judicial practice.Against this background,this article takes the implementation effect of the copyright infringement determination system of network service providers as the starting point,analyzes the relevant theories through literature research method,historical analysis method as well as empirical analysis method and comparative analysis method,conducts in-depth research and analysis on the dilemma of judicial determination of copyright infringement of network service providers,re-examines the difficulties of judicial application such as technology neutrality and duty of care,and explores perfect suggestions based on practice for It is of practical significance to the resolution of online copyright infringement disputes and the healthy development of the industry.The content of the thesis contains three main levels.Firstly,it is a study of practical cases of copyright infringement by internet service providers,i.e.the level of empirical analysis.This level uses the big data system,relies on the relevant judicial cases in recent years,analyzes the data of the cases in various dimensions,and compares and analyzes the typical cases horizontally and vertically.On this basis,an in-depth analysis of the problems and difficulties in the application of judicial determination of copyright infringement by network service providers in judicial practice is conducted.Secondly,it is a discussion of the basic theory and legislative status of copyright infringement by network service providers,i.e.the level of theoretical and legal analysis.This level attempts to clarify the jurisprudential basis of relevant infringement,discussing from the perspectives of infringement subjects,constitutive elements and doctrines of imputation,and giving rational consideration to controversial issues in the academic circles,as well as sorting out the legislative history of relevant rules,combining the current status of domestic legislation and drawing reference from overseas legislation.In the basis of the doctrine and the support of the jurisprudence,an effective path to solve the relevant judicial recognition difficulties in reality is sought.Finally,on the basis of the previous analysis,suggestions are made for the improvement of the relevant judicial recognition rules on infringement.Based on the actual situation,this section aims to refine the operational rules of judicial determination and strengthen the accuracy and uniformity of judicial application,and proposes suggestions for improving the legislation and optimising the judiciary in response to the problems and difficulties summarised in the previous section.The research results of the thesis contain two main parts.The first part is to discover the difficulties and problems of judicial review of copyright infringement by network service providers through the investigation and research of judicial practice.The difficulties are: the difficulties in classifying the subjects,the difficulties in determining fault and the difficulties in identifying evidence;the problems are: the abuse of the principle of technological neutrality;the different factors in determining the duty of care;and the solidification of the allocation of the burden of proof.The second part is to put forward suggestions for improving the above-mentioned difficulties and problems.In terms of improving the legislation,they are: clarifying the subject classification of network service providers;refining the specific application of the safe harbour principle;unifying the differentiated factors for determining the duty of care;and strengthening the regulatory responsibility of network service platforms.In terms of optimising the judiciary,the following are proposed: strict application of the principle of technological neutrality;comprehensive consideration of the balancing mechanism of interests;improvement of the allocation of the burden of proof;and deepening the integration of technology and the judiciary. |
