Study On The Obligation Of Care Of Internet Service Providers For Copyright Infringement

With the rapid development of the Internet era,the phenomenon of network infringement is more and more diverse.Compared with traditional torts,the environment of network torts is special,with the characteristics of universalization of torts,rapid expansion of damage and incalculable damage consequences.As a neutral third party,Internet service providers originally play an intermediary and fundamental role in network infringement.However,in recent years,courts have invoked duty of care many times in the trial of online copyright infringement disputes,requiring Internet service providers to assume more responsibilities in the supervision process.The expansion of the duty of care reflects the value transmutation of social security from the freedom of behavior in the contemporary civil law in our country.To regulate the indirect tort behavior of network service providers by perfecting the system of the duty of care,so as to better protect the legitimate rights and interests of the right holder and standardize the order of Internet industry.In addition to the introduction and conclusion,this paper mainly involves five parts:The first part introduces the general theory of the duty of care for copyright infringement by Internet service providers.Based on the overview and classification of Internet service providers,the necessity of duty of care is affirmed.This paper mainly discusses that the duty of care of Internet service providers conforms to the requirements of trust relationship theory,risk control theory,interest balance theory and social total cost theory.It is suggested that predictability,proximity and fairness should be used as the criteria for determining the duty of care of Internet service providers.The second part is the current legislation and judicial analysis of copyright infringement duty of care of Internet service providers.From the current legislation and judicial practice in the field of tort liability of Internet service providers in various countries,the duty of care of Internet service providers is mainly reflected in the legislation of "notice-counter-notice" rule,"red flag rule","necessary measures to stop infringement" and direct economic benefits.In judicial practice,the duty of care of Internet service providers is also developing and improving,including the duty of care consistent with information management ability.The third part is the problems in the relevant provisions of copyright infringement duty of care of Internet service providers.In terms of legislation,the liability principle in the Civil Code and the disclaimer principle in the Regulations on the Protection of Information Network Communication coexist in the duty of care of Internet service providers,and the provisions on anti-circumvention protection measures for tort duty of care in the current relevant laws are insufficient.In addition,in the application of the "notice-counter-notice" rule and the "Red flag rule",the determination of duty of care is limited by the unclear validity of "improper notice",the controversy over the determination of duty of care in repeated infringements,and the lack of uniform and clear systematic provisions on the identification factors,identification standards and application conditions of "should know".The fourth part is the comparison and reference of the duty of care of Internet service providers under copyright law.The United States has long established the entry conditions of the haven rule,that is,Internet service providers should fulfill two prior obligations of care: to stop repeated infringement and to apply standard technical measures to protect copyright.The EU Directive on Electronic Commerce also stipulates the duty of care for Internet service providers.France’s "three strikes and you’re out" system also requires Internet service providers to cooperate with law enforcement agencies to assume active regulatory responsibilities.All of these are instructive to improve the relevant regulations on the copyright infringement duty of care of network service providers.The fifth part is the improvement of relevant provisions of copyright infringement duty of care of Internet service providers.Firstly,the rules of copyright infringement duty of care of Internet service providers are coordinated,and the feasibility of incorporating exemption rules into the liability principle is demonstrated.At the same time,reasonable measures should be set with copyright filtering measures as the core.Secondly,it specifically clarifies the effect of "notification-counter-notification" rule in different cases,and establishes the examination obligation in "repeated infringement".Finally,it is proposed that the judgment standard of "rational person" should be introduced in judicial practice,and the identification method of "should know" in "Red flag Rule" should be clarified,so as to better protect the interests of all parties and standardize the order of the Internet industry.