| The progress of information network communication technology has greatly reduced the communication efficiency of network users,and also greatly reduced the cost of making infringing copies;with the rapid iteration of information network communication technology and the expansion of the business scale of network service providers,infringing acts occur frequently.However,due to the huge number of network users,the direct infringement appears to be scattered in geographical location and full coverage in various periods,which makes it uneconomical and feasible for the obligee to protect the rights of the direct infringer.Because the network service provider provides services to the network users of direct infringement,it helps the realization of direct infringement objectively.In order to reduce the risk of infringement,the current feasible approach is to focus on the prevention measures after the occurrence of direct infringement and before the realization of infringement risk.The network service provider is required to fulfill the obligation of actively preventing the occurrence of infringement,which can cut off the causal chain of the realization of infringement results,so as to achieve the purpose of timely stopping the realization and expansion of the loss of the obligee.At present,the only preventive measure available is copyright filtering obligation.This paper is divided into four parts to demonstrate this topic.The first chapter focuses on the overview of related concepts.First of all,this paper introduces the origin of the concept of copyright filtering obligation,and semantic analysis of the concept of copyright filtering obligation.Secondly,from the perspective of the function role in the process of commodity circulation,the main body of information network communication is divided into manufacturers,network content providers,network service providers and consumers,and the network service providers are further divided into network platform providers and network channel providers according to different business models.It is pointed out that "others create content" is the business model of network platform Typical features,and further demonstrate that the publicity of the content on the platform is a necessary feature of the network platform providers,so the difference between the two lies in the specific and non specific differences of the content providers they serve.In view of the different business model,the network platform providers and network channel providers have different network communication efficiency.This paper proposes that in order to protect the right of information network communication,after the direct infringement occurs and before the infringement results are realized,the network platform providers need to bear more strict prevention obligations than the network channel providers,so as to prevent their own business activities to provide help to the direct infringement.In the third section,this paper proposes that the legal attribute of copyright filtering obligation is duty of care,and demonstrates this point.The second chapter is the interpretation of the content of the copyright filtering obligation of the network service provider,mainly focusing on the behavioral characteristics of the copyright filtering obligation and the legal liability for violating the copyright filtering obligation.According to legal theory,legal obligation = behavior mode + legal liability.Only with a specific mode of command behavior and corresponding legal liability,can it play a normative role of guidance and prediction before the consequences of legal interest infringement,and evaluation,enforcement and education after the occurrence of legal interest infringement.Therefore,in the part of behavior characteristics,through the analysis of two similar concepts of "censorship behavior" and "copyright filtering behavior",this paper analyzes the relationship and difference between copyright filtering behavior and censorship behavior.This paper holds that the duty of review and the duty of copyright filtering belong to the duty of care;the specific difference lies in that the act of review is to make a specific case judgment on the legality of the content on the platform,while the act of copyright filtering is to make an abstract and batch judgment on the illegality of the content on the platform by using automatic filtering technology facilities.In the part of legal liability,this paper holds that when the network service provider not only constitutes a joint infringement but also violates the copyright filtering obligation,the network service provider should prove that it has no infringement fault.When the network service provider refuses to perform the obligation of copyright filtering,its omission is reprehensible;then this paper analyzes that the obligation source of the network service provider’s copyright filtering obligation is the antecedent act of joint infringement.This paper holds that the breach of copyright filtering obligations by network service providers will be presumed to be intentional infringement.At present,the principle of liability for joint infringement of network service providers is the principle of fault liability,and the principle of fault presumption is the aggravation of legal liability compared with the principle of fault.The aggravation of this liability shows that the legal norms have a negative attitude towards the violation of copyright filtering obligations.The third chapter demonstrates that it is reasonable to set up the copyright filtering obligation of network service provider from three aspects: the demand of piracy prevention in the network era,the legitimacy of setting up the pre prevention obligation,and the feasibility of setting up the pre prevention obligation with filtering technology.Up to now,the computer automation technology is far from enough to replace the artificial to make a specific case judgment on the legality of the work,while the existing information network technology has dramatically reduced the cost of personal information network communication,resulting in frequent direct infringement;in this context,the demand for increasing the protection of information network communication right has been born.The second section of this chapter discusses gradually that the interest imbalance weakens the order value of the law → the establishment of the pre prevention obligation can stop the risk of legal interest infringement in time → the legal obligation has a clear behavior mode to guide the relevant actors,play the predictive role of the law,stabilize the transaction expectation of the public → the establishment of the pre prevention obligation can promote the cooperation between the obligee and the network service provider In order to prove the legitimacy of establishing the obligation of prevention in advance,we should crack down on the direct infringement.The third section of this chapter introduces the most advanced filtering technology applied to commercial practice in detail,and explains that the progress of filtering technology provides a new technical premise for the implementation of a higher standard of rights protection system.When the new technical scheme can balance the interests of all parties more appropriately,the reform of the system should naturally be put on the agenda.In the fourth section of this chapter,this paper responds to the view that there is a conflict between copyright filtering obligation and "freedom of speech",the principle of safe harbor,and copyright right restriction system.In the fourth chapter,this paper puts forward its own suggestions and reasons on how to construct the copyright filtering obligation in China from three aspects: the subject,the applicable boundary and the supporting measures.The first section is to solve the subject problem of copyright filtering obligation.The normal operation of the network platform business may still constitute the help to the direct infringement,so its operation has the risk of legal interest infringement.According to the hierarchical structure of information network communication protocol,network platform providers are the application layer with the highest degree of data integration,so they have the possibility to recognize the infringement risk.According to the physical hardware architecture of information network,network platform providers usually have the right to use the information network storage space,so they have strong control over the risk of infringement.In short,the subject of copyright filtering obligation should be the network platform provider among the network service providers.Section two delimits the boundary for the application of copyright filtering obligation.Content providers share their works publicly,which delimits the boundaries of copyright filtering obligations from the perspective of whether they violate the right of information network communication.The work that the obligee applies for to be filtered is to delimit the boundary of copyright filtering obligation from the perspective of respecting other people’s rights.The third section puts forward suggestions on the construction of the matching measures of copyright filtering obligation-the construction of the comparison database and the operation of the comparison system. |
