Research On The Obligations Of Internet Service Providers In The Notice-take Down Procedure

Article 1195 and 1196 of the Civil Code stipulates the notice-take down procedure in the network infringement system.In the operation of this rule,there are three main bodies: right holder,network service provider and related network user.Because of its special identity,Internet service providers bear important responsibilities in this rule,and which obligations they should fulfill is the focus of the research."Notice" is the starting point of operation of the system.The notice is sent by the right holder and received by the network service provider.The handling of notifications is problematic in practice.It has been a mainstream view that ISP should review the notifications,but it has not been decided by what standard.Formal review should be based on receiving mode and integrity review.The substantive examination should be prescribed separately according to the different nature of the case,rather than applying a highly generalized and uniform standard.If there is no obvious fault after wrongly exercising the duty of review,the ISP should not be required to bear the responsibility.How to reasonably fulfill the obligation of taking necessary measures becomes another key issue of the notice-take down procedure.The scope selection of necessary measures should follow the principle of proportionality and reliefability.The timeliness determination of necessary measures should take into consideration three categories of factors: notification,infringement cause and nature of Internet service provider.However,after taking the necessary measures,the ISP may face the situation of termination of the necessary measures,and the ISP may bear the tort liability and the liability for breach of contract if it fails to terminate the measures in time.When the Internet service provider undertakes the relevant obligations in the notice-take down procedure,there exists the right which is not stipulated by the law but "authorized" to the Internet service provider to formulate the operation system.Use "platform autonomy" in the notice-delete rule to improve the accountability of ISP.