On the Obligation of Internet Service Providers to Examine Infringement Notices
The notice-and-takedown rule plays an important role in the governance of online infringement in China,and with the increasing complexity of online infringement situations,it is urgent to establish the obligation of Internet service providers to examine infringement notices in response to frequently-issued wrong notices.Based on the comparison and analysis of differences among notice-and-takedown rules of different jurisdictions and respecting the fact that internet service providers examine infringement notice,from the perspective of legal interpretation,the obligation of Internet service providers to examine infringement notices is clarified.The notice-and-takedown rule in the context of Chinese law should be regarded as a liability norm,thus the principle of fault-based liability should be adopted and the obligation of Internet service providers is an integral part of their duty of care.In determining the content of the obligation of Internet service providers to examine infringement notices,we should consider the costs of right holders and the examination burdens of Internet service providers at the same time,thus the examination of different elements of a notice according to the standard of"preponderance"is the general content of the obligation of Internet service provider to examine infringement notices.Regarding evidences on holdership and infringement of different types of rights,examination logic and determination standards can be adjusted appropriately.
Internet Service ProvidersNotice-and-takedown RuleObligation to ExamineInfringement Notices
万方数据
维普
