Research On Copyright Prior Filtering Obligation Of Information Storage Providers

Research on the system of ISP’s duty of care is an important issue in the field of copyright law,which originated from Article 512 of the 1998 Digital Millennium Copyright Act(DMCA)of the United States of America,and the Regulations on the Protection of the Right to Network Dissemination of Information(the "Regulations"),which was implemented in 2006,adopted the changed system.Article 36 of the Tort Law of the People’s Republic of China(the "Tort Law")and Article 1195 of the current Civil Code of the People’s Republic of China(the "Civil Code")both continue the system of ISP’s duty of care in the United States of America,although they were partially amended.However,no substantive change has taken place,and legislation has not included the obligation of prior review of copyright of internet service providers into the duty of care system.Although the duty of care established by the traditional safe harbor system has played many positive roles in the early copyright infringement and the development of the Internet industry,the progress of technology and the development of the Internet have long ago made the duty of care lack of existing soil,and the disadvantages of a single ex post remedy have emerged constantly.With the rapid development of filtering technology,it is possible to prevent copyright infringement in advance.The application of the prior copyright filtering obligation under special circumstances is not only conducive to balancing the interests between information storage providers and copyright right holders,but also makes up for the lack of prior protection for copyright infringement on the Internet and effectively regulates the chaos of copyright infringement on the Internet.Therefore,after the European Union took the lead in introducing the mechanism of prior copyright filtering obligation in the Directive on Copyright in the Digital Singles Market(hereinafter referred to as the "Directive"),there are more and more voices supporting the enhancement of the duty of care of information storage providers and the active application of filtering technology to identify and prevent network copyright infringement in China’s theoretical and judicial practice,which believe that the healthy order of network copyright can be protected by appropriately restricting the free operation of information storage providers.In practice,there are many information storage providers who cooperate with the copyright owners and take the initiative to use filtering technology to prevent infringement,and from the feedback,the limited application of the prior filtering obligation can achieve a good effect of restraining piracy.Prior filtering is the necessary connotation of the duty of care,but the duty of prior filtering has not been explicitly stipulated in the law in China.In practice,courts at all levels adopt different expressions and standards in determining the liability of information storage providers.Therefore,in order to effectively regulate internet copyright infringement and reverse the current situation of failure of single ex post remedy,this article,on the basis of continuing to apply the rule of "notice for deletion",further proposes that information storage providers shall bear certain copyright content filtering obligations under special circumstances.In the first chapter,the author points out the main problems of the duty of pre-filtration,that is,the subject of the duty is not clear and the legal nature is not clear,and it is clear that the subject of the duty is the information storage provider,and it is clear that pre-filtration is a higher degree of duty of care.Meanwhile,this article also points out the doubts and reasons for the application of the prior copyright filtering obligation by the information storage providers,which lays a foundation for the necessity and feasibility analysis of the prior copyright filtering obligation under certain circumstances and suggestions for improvement.With respect to the doubts on the application of the prior copyright filtering obligation by information storage providers,Chapter II and Chapter III of this article,based on the latest development of the current Internet industry,analyze from the perspective of necessity and feasibility,and comprehensively apply the research methods of law and economics and the balance of interests analysis theory from the perspective of the development and maturity of filtering technology to provide new argument and theoretical support for the application of the prior copyright filtering obligation by information storage providers under certain circumstances,and meanwhile,refer to the internal logic of the EU Directive to provide system support for the application of the prior copyright filtering obligation by information storage providers under certain circumstances.On this basis,the fourth chapter puts forward specific suggestions for the information storage providers to perfect the copyright prior filtering obligation based on the consensus of the theory and judicial circles and the extraterritorial legislative and judicial practice.First of all,the foregoing clarifies that the copyright prior filtering obligation applies to information storage providers.Further,considering the level of liability capacity and technical level,the interests of small and micro enterprises shall also be taken into account to limit their liability;Secondly,the application of the obligation of prior copyright filtering shall be clearly defined,and the scope of works for which the information storage provider shall assume the obligation of prior copyright filtering shall be limited;finally,information storage providers and copyright owners shall be encouraged to actively cooperate with each other to jointly resist infringement,and relevant supporting mechanisms,such as cost sharing mechanism and remedy measures for error filtering,shall be established to protect the legitimate rights and interests of users and owners to the maximum extent.The progress of content filtering technology provides us with new opportunities and ideas to seek a more reasonable copyright protection system.It is hoped that,through the research of this paper,China will introduce the prior copyright filtering obligation into the legislation at an early date,guide the information storage providers and the copyright right holders to cooperate to establish a reasonable copyright filtering mechanism,make the information storage providers bear the responsibility in line with their capability and technical level,enhance the efforts of the information storage providers to crack down on copyright infringement,and gradually establish a healthy new order of network copyright.