Civil Code "Notice-and-Takedown" Rule:Changes,Commentary And Judicial Response

We are in the digital age,the Internet has quickly from a small sole system developed into a global network of information through the Internet can realize the infinite time,low cost,almost perfectly copied,and quickly and efficiently to the world,at the same time it also spawned a massive copyright infringement.The Digital Millennium Copyright Act(DMCA),enacted in 1998,for the first time stipulated the “notice-and-takedown” rule in order to solve the increasingly serious problem of copyright infringement on the Internet.It is natural for countries around the world to introduce this rule in the face of common network infringement.As early as 2000,China issued judicial interpretation and formally transplanted the “notice-and-takedown” rule,and gradually established an effective applicable framework of “notice-and-takedown” rule in subsequent relevant legislation.Due to the lag characteristics of the law,the complex and changeable network infringement can’t be effectively governed.In order to adapt to the trend of network development in the digital era and solve the legislative deficiency of the “notice-and-takedown” rule,the Civil Code that takes effect in 2021 revises and improves the rule on the basis of absorbing previous legislative experience.Specifically,different treatment measures are taken according to the service type,the infringement treatment process of the network platform is improved,the legal consequences of the wrong infringement notice is added,the right of counternotice is given to the respondent,and the red flag principle of “should know” is added,so as to actively respond to the application dilemma of the " notice-and-takedown " rule at present.The nature of the amendment and perfection of the “notice-and-takedown” rule in the Civil Code is still the adherence to the previous legislation,and there is no substantive breakthrough in the framework of the “notice-and-takedown” rule.there exist many deficiencies,judicial application “necessary measures” fuzzy definition in processing mechanism rigidity,repeatedly failed to fill the infringing content holes and abuse “noticeand-takedown” program for infringement could not be effectively,“notice-and-takedown”rule processing time mechanism is rigid fit,the network platform in the notification information disclosure lack of flexibility in applications.Therefore,with regard to the current problems of the " notice-and-takedown " rule,on the basis of respecting the current situation of the development of China’s network service industry,and with reasonable reference to the experience of the United States,the European Union and other overseas legislative practices,we put forward suggestions for improvement in five aspects: first,to recognize " transfer notice" as one of the "necessary measures";second,to introduce a filtering mechanism at an appropriate time;third,to increase the penalty for abuse of the "notice-and-takedown " rule;fourth,to improve the " notice-and-takedown " rule.Firstly,to recognize "forwarding notice" as one of the "necessary measures";secondly,to introduce a filtering mechanism in a timely and appropriate manner;thirdly,to increase the penalty for abusing the " notice-and-takedown " rule;fourthly,to improve the processing time in the "notice-and-takedown " rule.Fourthly,the provisions on the length of processing in the "notice-and-takedown " rule should be improved;fifthly,the online platform should be given the flexibility to disclose information to the right holder in the notification procedure.In judicial practice,the latest legislative provisions of the Civil Code on platform liability should be scientifically refined and interpreted to address the "Achilles’ heel" of the online environment in order to achieve "China’s governance" of online infringement.