Study On Infringement Liability Of The Online Trading Platform Provider

The rise and development of the shopping websites not only provides the sales platform for small and medium retailers, but also gives consumers a convenient way to go shopping without leaving home. With the continuous development of online shopping, the massive influx of counterfeit and shoddy commodities can infringe intellectual property rights and harm the long-term development of the shopping network. In recent years, our courts receive a series of new cases that the network trading platform providers and users are accused of infringing jointly the intellectual property rights of others. Whether the online trading platform provider assumes infringement liability becomes the focus of controversy. This thesis will point out differences of the court’s decision by collecting and analyzing the relevant cases. The reasons are that legislative provisions are ambiguous on infringement of the network service provider and our law does not specify the legal obligations of the online trading platform provider. In determining the legal status of online trading platform provider under the premise, the author analyze duty of review, duty of care and the issues of subjective fault by interpreting the relevant provisions of the law, combing and analyzing the views of scholars and visiting extraterritorial laws. The purpose of this paper is to provide theoretical references for that define the infringement liability of online trading platform provider. Around with the subsistent problems about infringement liability of online trading platform provider, the paper consists of four parts as following: The first part is about proposing problems by collecting and analyzing cases. The paper gathered10related cases of recent years. The author Summarizes differences of the court’s decision by collecting and analyzing the relevant cases. These differences are mainly manifested in two aspects:first, the online trading platform provider has review obligation or duty of care and their contents; second, the problems about the subjective fault of infringement of online trading platform provider.The second part is the status base of online trading platform provider that assumes infringement. A clear legal status is a prerequisite to determine the obligations and liabilities of the online trading platform provider. Commenting on this section by the views of the legal status of online trading platform provider, the paper pointes out that the online trading platform provider is Advertisement publisher in certain situation, and from the basic attributes of the online trading platform provider, it’s a type of network service providers. So should be combined with the basic attributes and specific service type to define the legal status of online trading platform provider.The third part is the obligation premise of online trading platform provider that assumes infringement. This part the author analyzes review of obligations and duty of care of the online trading platform provider. The scholars generally believe that online trading platform providers have no review of obligations. But through the research of our laws and department regulations, the present situation of internet trading platform development, review of capacity, the type of Service, foreign legislation and judicial practice, the author consider that online trading platform provider should assume certain review of obligations. For duty of care, the paper explains its connotation, identified standards of fulfilling the duty of care, the determination of judicial practice about duty of care.The fourth part is analysis of subjective element about infringement of the online trading platform provider. Through analyzing and combing views of the scholars, the paper consider that subjective element of "knowledge" on indirect infringement of online trading platform provider includes "knowingly" and "should know", that subjective fault includes intention and negligent, that recognized standard of subjective fault identified by the violation of review of obligations and duty of care be should objective.