On the Sino-US safe harbor rules Comparative Study

The abstract promulgated in 2006 << Information Network Transmission Right Protection Ordinance, formally established in our country a safe haven rules, this principle was first found in the Digital Millennium Copyright Act of the United States << >> China's haven principle in formed on the basis of reference by the United States, however, occurred during migration serious acclimatized. This paper formed the background and content of the principles of the Sino-US haven compared to investigate the cause of the problem, and make appropriate recommendations to promote safe haven rules China to play its due role.

The Paper Keywords haven transplantation Copyright

1998 Digital Millennium Copyright Act of the United States << >> earliest sets out the principle of a safe haven, the United States Congress report shows that the legislative intent of the haven rules mainly two aspects: First, clear the service provider may be copyright infringement liability, so that the service providers can accurately predict the risk of legal case, normal operation and development of information industry, the establishment of an incentive mechanism to encourage service providers and copyright owners in close cooperation to jointly cope with the problem of copyright infringement in the digital network environment, to stop the spread of infringement of the network In other words, the rapid development of computer information age, haven principle in order to find a balance between the development of the information technology industry and protect the interests of copyright owners, both to avoid network service providers to take on too much the ultimate responsibility to pass the cost onto the customers, but also to prevent the infringement through the network wantonly violated the interests of copyright owners, hinder the creation of enthusiasm from the judicial practice, since the implementation of the digital copyright law >> << millennium, the United States Court only 20 more cases haven haven rules in the United States get a good run, the solution of the conflict between copyright owners and network service providers to provide a viable standard of our country since 2006 << information network dissemination rights Protection Ordinance promulgated and implemented, writers, singers and film and television rights v. site case increased rather than decreased, and the courts of the network service provider identified citing haven rules for defense is not the same, different co-contracting The result is not satisfactory, making haven rules.

Because

Why the same system as the result of it is so different? First of all, the legislative background of the two countries be applied mechanically introduction is difficult to achieve the desired results. In addition, neither fully in the legislative process to introduce haven rules the essence of the place and failed to perfect its defects, so that our country a haven for controversial rules in the course of its implementation. following specific analysis.

(Legislative Background

U.S. copyright infringement basic rules of responsibility including direct infringement liability rules and indirect tort liability rules. << >> Section 106 of the Copyright Act for the originality of the work of setting a series of proprietary rights, including the right of reproduction, performance rights, the right to demonstrate, the right to issue any person without the authorization of the copyright owners and their works, copy, perform, display behavior a direct violation of the exclusive rights of copyright owners, direct infringer shall bear the direct infringement liability directly tort liability, strict liability, that accountability without regard to the infringement know or subjective intention, but the infringement intended the presence or absence will affect the amount liable for damages. "indirect infringement" is the theory of the copyright laws of the United States, with respect to "direct infringement", it means even if the perpetrator is not directly implemented by the exclusive right to control behavior, but their behavior with others "direct infringement" there is a specific relationship between the behavior, but also by law for public policy reasons either directly defined for infringement. >> period of the previous << Digital Millennium Copyright Act, the U.S. judicial practice, the violations caused by the service provider for providing network services, service providers bear tort liability, but also some indirect tort liability. existing legal system and judicial precedent case is no longer able to cope with the problems of the tort liability of service providers in a complex digital network environment. Therefore, in the digital copyright law >> << millennium before the introduction of the service provider assume responsibility in which its service behavior is a complex legal and does not clear the problem, which adds to the risk of infringement of the network service providers, increase the cost of the development of the information industry, adding to the continued development of this emerging industry the burden in this context, passed by Congress to encourage network service providers and copyright owners a series of intense negotiations and consultation, the final balance the interests of both sides introduced the "Online Copyright Infringement Liability Limitation Act (the Act classified << millennium digital copyright law >> the second part, it set up the first for the United States and other countries have to learn from the "safe harbor" rule making to meet the main requirements of the network service provider to meet certain conditions to enjoy a certain Limitation of Liability, determine its share of risks.

Although China's intellectual property protection system formed a complete legal system, and in line with international standards, but the protection of intellectual property rights in China started late. << Information Network Transmission Right Protection Ordinance introduced in 2006, only 2001 modify >> << Copyright Law and the Supreme People's Court judicial interpretation of the rights of the copyright holder, protection, and in >> << copyright law provisions, by the State Council Information Network Transmission Right specific forms and protection otherwise provided In other words, in the context of the protection of intellectual property stretched, protection of the right of information network dissemination is difficult to achieve the level of intellectual property rights of this country like the United States. Moreover, due to the protection of intellectual property rights in China a relatively short history, civil weak awareness of copyright, copyright infringement frequent, rampant piracy is one of the most typical example. Copyright consciousness network service provider, driven by the interests neglected the maintenance of the rights and interests of copyright the network expanded infringer on infringement of the rights of people in this context, << Information Network Transmission Right Protection Ordinance >> emerged as << Ordinance >> mentioned in Article, the legislative purpose is to protect the copyright holders, performers, recording video production (hereinafter collectively referred to rights information network dissemination rights, encourage beneficial to the socialist spiritual civilization and material civilization of the creation and dissemination of works. "that is, in the case of network service providers and the interests of right holders imbalance by Legislation safeguard the interests of the weak.

Through the above comparison is not difficult to see, haven rules established in the case of network service providers and rights equal to promote the information industry sustainable development for the purpose of the latter obviously vulnerable circumstances, for legislative purposes and regulations to protect the interests of right holders. Legislative background differences in the rules and did not reflect transplantation obvious factors, which also makes the inevitable problems arise in practice.

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(content analysis

China's haven transplanted from the rules from the United States, haven rules itself defects combined with inappropriate changes in China's legislative process, makes our country a safe haven rules difficult to achieve the legislative purpose the protection of the rights of rights holders.

First, China << Information Network Transmission Right Protection Ordinance did not completely general condition of the U.S. << >> under the Digital Millennium Copyright Act haven rules apply. << Digital Millennium Copyright Act >> provisions haven for asylum, the network service provider must meet one of the basic conditions "to adopt and implement a stop infringers services policy." The policy includes two aspects: (1 public appropriate time to stop repeat infringers policy as a statement on the site, and under what circumstances repeat infringers more interested in how many times to stop the service, (2 to implement this policy in a reasonable manner, such as the establishment of a sound Notice of reporting system, including agent designated to receive a notice of infringement, correct contact information, etc., and in the presence of a repeated infringement user, or received a qualified several times a infringers Report, to stop the implementation of its services. << Information Network Transmission Right Protection Ordinance provides for several different types of network service provider applicable haven rules, but no provisions similar to the above-mentioned provisions of the general conditions which lead to duplication tort is difficult to avoid the legal notice of the service provider by the rights holders of infringing works delete, delete infringer can continue to upload, the infringer upload works time is much less than the rights and service providers find and delete this protection of the rights of the rights of people facing an embarrassing situation: the obligation of service providers to remove infringing works in accordance with the reasonable requirements of the rights holders, but not able to guarantee the provision of network services is no longer the same infringement. overwhelming the network service the existence of the times in our lives, the user by means of gratuitous access to the intellectual achievements of the rights holders, will seriously damage the interests of rights holders, hindering the creation of knowledge products.

Second, the safe harbor rules a key part of the notification delete "program that the case of copyright owners to send qualified notice, the service provider shall immediately respond to remove the allegedly infringing material or shielding of the material visit << Information Network Transmission Right Protection Ordinance >> the provisions of Article 23 of the network service provider to provide the service object search or link services, after receiving the notice of the right people, according to the provisions of this Ordinance disconnect infringing works, performances, audio and video products linked not be liable for compensation. "regardless of the Digital Millennium Copyright Act of the United States << >> China << Information Network Transmission Right Protection Ordinance provides for the content of the notice, but the notice failed to define practice but there is controversy, such as it is precisely because the legal effect of the illegal notice identified, resulting in the circumstances of the case is basically the same Universal Music Limited 11 albums Inc. v. Ali Baba Information Technology Co., Ltd. (Yahoo China site owner case and the major record companies v. Beijing Baidu Network Technology Co., Ltd. violated Information Network Transmission Right case diametrically opposed results. previous case, the judge failed to fulfill its attention to Yahoo The obligations of the grounds of judgment to be liable, then the judge that the case should not be allowed to Baidu exposed to excessive audit obligations by the judgment in favor of Baidu.

Notice Remove Programs after receiving the notice should be promptly infringing works be deleted timely, but in the end is how long our legislation but does not require the United States Senate Committee on the by << the Digital Millennium Copyright Act >> The report recommended that different technical circumstances or changes may need to develop different "quick reply" time standard in some cases, third-party infringers release is copyrighted by the picture may cause other at 24 number of users millions of downloads, in such circumstances may require service providers quickly returned within 4-5 hours. contrast, other cases should perhaps be delayed response time, such as service providers feel necessary to consult with a lawyer. different circumstances apply in different time standards and our lack of provisions in this regard, lead to consequences in addition to some service providers delete timely, more service providers malicious delay in the notification of the review time to expand illegal dissemination of works, violations of the interests of right holders, and some even suffered huge economic losses, such as the hit TV rights.

Second, suggestions for improvement

I haven rules applicable in accordance with the above comparison and analysis make recommendations accordingly.

Haven rules should be applied to the protection of the rights of the rights-based As mentioned earlier, our haven rules in the balance of power imbalance, and control infringement, with advances in technology network service providers the ability to the increasing rights human rights situation has not been improved, So, in practice applicable haven rules should be more focus on protecting the rights of people in the gray area of ​​the law, to do more to help the interpretation of the rights holders, in determining infringement cases should increase the compensation standards for service providers, In short, judges should be in the discretion within the range of moderate to do is conducive to the judgment of the rights holders.

Second, the failure to inform the identification of different flexible criteria. Failed notified whether they can produce the force of law lies in the unqualified notice will affect service providers for violations of the subjective state of knowledge, that is, if If the failure notice although not able to fully comply with the provisions >> << Information Network Transmission Right Protection Ordinance, but does not affect the identified infringement should be determined, and vice versa can be regarded as invalid, but failed The notice should Points processing can be directly determined invalid, clearly belongs to malicious, and those who because of negligence or lack of capacity rights cause notice failed, service providers should be organized to provide help and guidance of specialized personnel, so that the right to free in because of the lack of knowledge of the law or other aspects of knowledge has been infringed.

Promptly remove infringing works based network service providers continue to improve the detection of pirated software detects ability and level of piracy is not the same, it is difficult to determine uniform standards, but, you can ask the service provider to install the software of the unified specification, Using the advanced filtering technology, a prerequisite for the application of the rules of safe haven as a service provider. This will not only supervise the network service providers to enhance awareness of copyright, the rights of copyright owners, but also for the Court to decide cases control standards.

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