Determination Of Necessary Measures In Copyright Notice And Takedown Rules

With the development of the Internet,the speed of online communication has become faster and the scale of online platforms is rapidly expanding.Today’s era is different from the context in which notice removal rules were developed in the 1990 s.Today,on the one hand,the amount of infringing content on the Internet is increasing and infringing content is spreading faster and faster,and on the other hand,ISPs are becoming more skilled at handling infringing content.The traditional "necessary measures" of "location removal" are inefficient in the face of today’s massive and repeatedly infringing online world,i.e."Notification-Removal-Re-notification-Reremoval" is a recurring cycle.Since the Regulations on Protection of Information Network Transmission Right("the Regulations")of the National People’s Congress of the People’s Republic of China("the Civil Code")provide for "necessary measures" However,in judicial practice,the connotation of "necessary measures" tends to expand.Therefore,it is necessary to identify the connotation of "necessary measures",and at the same time to differentiate the application according to the specific situation and provide a set of theoretical logic of the application method.In the first chapter of this paper,three problems of "necessary measures" in the notice removal rules are proposed: first,the connotation of "necessary measures" is unclear,second,"necessary measures" are not applied differently,and third,"necessary measures" are not applied differently.The method of application of "necessary measures" is unclear.In the subsequent three chapters,respectively,the three issues raised in the first chapter to attack one by one.The second chapter of this paper introduces the current situation of the application of "necessary measures" in China and the international discussion on the various models of "necessary measures",and concludes that the connotation of "necessary measures" should be The conclusion that "necessary measures" should not only refer to the deletion of specific content in the notice of infringement by the network service provider after receiving the notice,but should also include the pre-judgment of other infringing content outside the notice and the adoption of corresponding measures.For example,to take measures such as "restricting privileges" and "blocking" accounts for repeated infringement,and to take measures to "block" infringing contents that are likely to appear.On the one hand,in the context of the new era,"location removal" is gradually becoming obsolete.The reason is that,as the speed of dissemination becomes faster,the network is now flooded with infringing information.The gopher-style "location removal" of infringing content has resulted in the notice removal rule,which originally advocated a cooperative mechanism,becoming a "weapon" for ISPs against rights holders.Moreover,with the improvement of filtering technology,it is possible for ISPs to quickly identify and remove infringing content through appropriate filtering technology.On the other hand,although the connotation of "necessary measures" is expanded,it does not mean that any measures can be "necessary measures".For example,measures such as "forwarding notices",which have only an educational effect and cannot prevent the expansion of damage,should not be considered as "necessary measures".In addition,since "blocking" measures often target uncertainty,if the network service provider is required to "block" without restriction,it will lead to the obligation of the network service provider to take the initiative to review.The expansion of "necessary measures" is not unlimited,in practice,it is also necessary to apply the principle of proportionality in specific cases.Chapter 3 of this paper distinguishes the application of "necessary measures" by distinguishing basic network service providers and non-basic network service providers.Since different types of network service providers have different control over infringing contents,this chapter will distinguish the application of "necessary measures" based on the difference of subjects.First,as a network service provider that only provides access,transmission or system caching services,the basic network service provider is at the most basic level in the hierarchy of the Internet.The characteristic of basic network service providers is that they can only take measures on the accounts of network users,but not on the specific content uploaded by network users.In the context of the expansion of the connotation of "necessary measures",basic ISPs can also take measures such as warning,temporary or permanent disconnection of access depending on the circumstances of the Internet user’s account.Second,non-basic network service providers,such as information location service providers and information storage service providers,are typical network service providers.Non-basic ISPs can have more control over the accounts of Internet users and the content uploaded by Internet users.Therefore,they can take more diverse measures,such as controlling the permissions of web users’ accounts and "blocking" the content uploaded by web users.Chapter 4 of this paper determines the method of application of "necessary measures" by introducing the principle of proportionality and typifying the considerations for applying "necessary measures".First,according to the principle of appropriateness,the "necessary measures" must help achieve the purpose;second,according to the principle of least damage,the measures that cause the least damage to the alleged infringer and the network service provider must be chosen;and third,according to the principle of balance,the purpose achieved by the measures must be proportional to the damage caused.In determining the "necessary measures",it is necessary to combine the service model of the network service provider,the scale of the enterprise and the possibility of infringement and the degree of danger for a comprehensive determination.