The Deficiency And Perfection Of "Notice And Take Down" Rule In China

In the early stage of Internet development,Internet copyright infringement is rampant.In order to solve the conflict between copyright protection and promoting the development of Internet industry,after practical exploration,the Notice and Take Down rule came into being in 1998.After more than 20 years of development,network technology continues to progress,and the speed and scope of information dissemination are unprecedentedly strong,which also brings greater challenges to the governance of network infringement.Due to the deficiency of Notice and Take Down rule in both substance and procedure,the abuse of Notice and Take Down rule and the frequent occurrence of repeated infringement appear in the process of application.The substance deficiency of Notice and Take Down rule in China is embodied in the formal requirements of qualified notice and qualified counter-notice are not clear and the review obligation of Internet Service Provider is not equal to the profit;the procedure deficiency is embodied in the inconsistency of the relevant laws and regulations on the scope of the subject of notice right,the setting of waiting period after receiving counter-notice,which destroys the relationship between the informer and the accused,the balance of the informer’s interests and the Notice and Take Down rule fail to solve the problem of repeated infringement.On the basis of not changing the overall framework of the Notice and Take Down rule,this paper proposes to clarify the specific elements of the preliminary evidence in the qualified notice and the counter-notice,improve the Internet Service Provider’s obligation to review the notice and counter-notice,include the interested parties into the scope of the subject of the right of notice in the E-commerce Law,deleting the waiting period after receiving the counter-notice,and introducing the filtering mechanism for the repeated infringement content Abuse.Through the above ways,the interests of all parties involved in network infringement can be balanced.