Reading guide
The "safe harbor" rule is a system design that restricts the tort liability of network service providers, but the "safe harbor" rule is not the same as a "safe harbor", and it has strict conditions for the application of law.
Guiding Case No. 83 Where a network user uses a network service to commit an infringing act, and the infringed party sends an effective notice to the network service provider, the network service provider takes necessary measures, the safe harbor rule applies.Weihai Jiayi Baking Life Appliances*** v. Yongkang Jinshide Industry and Trade***Zhejiang Tmall Network Co., Ltd., a dispute over infringement of invention patents.
Gist of the case:1.Where a network user uses a network service to commit an infringing act, and the notice issued by the infringed party to the network service provider in accordance with the Tort Liability Law requiring the infringed party to take necessary measures includes content such as the identity of the infringed party, proof of ownership, the infringer's network address, and preliminary evidence of the infringement, it is a valid notice. The complaint rules set by network service providers must not impact rights holders' lawful protection of their own lawful rights in accordance with law.
2.The necessary measures to be taken by network service providers after receiving the notice as provided for in the second paragraph of Article 36 of the Tort Liability Law include, but are not limited to, deleting, blocking, or disconnecting links. "Necessary measures" should follow the principles of prudence and reasonableness, and be comprehensively determined according to the nature of the rights infringed, the specific circumstances of the infringement and the technical conditions.
Case No.: (2015) Zhe Zhi Zhong Zi No. 186 Trial court: Zhejiang Provincial High People's Court.
Related Perspectives:
In practice, e-commerce platforms apply the "safe harbor" rule
On the one hand, the "safe harbor" rule clarifies the boundaries of liability of network service providers and prevents them from undertaking excessive duty of care. On the other hand, it also provides a channel for rights holders to quickly obtain remedies, effectively preventing the continuation of infringement. This rule plays an important role in balancing the interests of rights holders, network service providers and network users. However, when the "safe harbor" rule is applied to an e-commerce platform due to alleged infringement by an online merchant, some problems have emerged in practice, such as a considerable proportion of the complaints received by the e-commerce platform from the right holder, and the phenomenon of abusive complaints is also relatively common, so simply taking removal measures may cause undue damage to the interests of the legally operating online merchants. Therefore, when applying the "safe harbor" rule to e-commerce platforms, it is necessary not only to maintain the protection of intellectual property rights in the online environment, but also to prevent rights holders from abusing the rules and hindering the legitimate business activities of e-commerce platforms and online merchants.
In fact, the second paragraph of Article 36 of the Tort Liability Law adopts open provisions on the necessary measures to prevent the expansion of infringement that the online trading platform service provider shall take after receiving a valid notice from the right holder, and such measures shall not be limited to deleting, blocking or disconnecting links, but also include conveying the complaint materials of the right holder to the complained online merchant, and taking further necessary measures according to the response of the online merchant, i.e., the "transfer notice" measure. In trial practice, especially in some patent infringement complaints, it is often difficult to judge whether the act complained by the right holder constitutes infringement due to the professional and technical issues involved. Therefore, in this case, the "notice-takedown" rule should not be applied mechanically, but should be interpreted in an extended manner to the types of "necessary measures" in Article 36 of the Tort Liability Law, otherwise it may lead to the erroneous application of the deletion rule, and even lead to the right holder abusing the complaint mechanism to engage in unfair competition.
Excerpted from Wang Liming, ed., Judgment Research, 2016, Vol. 2 (No. 76), People's Court Press, 2017, p. 80).
Related Cases
1.When the evidence adduced by a web page provider reaches the standard of high probability, its status as a network service provider shall be determined, and the safe harbor principle may be applied.Shang Xiaona v. NetEase (Hangzhou) Network***Guangzhou NetEase Computer System***, a dispute over the right to disseminate information on the network.
Gist of the case:Determination of information network dissemination shall adhere to server standards, and those who only provide links shall be recognized as network service providers. The determination of the identity of a network service provider may be made in combination with the information labeled on the web page, the charging information displayed when the user pays, and the link jump information displayed in the background data when the web provider accesses other similar content on the same page. When the evidence adduced by a web page provider reaches the standard of high probability, its status as a network service provider shall be determined, and the safe harbor principle may be applied.
Case No.: (2017) Zhe 8601 Min Chu No. 1014.
Trial court: Hangzhou Internet Court **Top 10 Typical Cases of Hangzhou Internet Court.
2.Network service content providers do not enjoy the network technology service provider's right to be exempted from liability for indirect infringement by "notice-takedown".
Yang Liming v. Jiujiang City Tiantian Network Media *** copyright infringement case.
Gist of the case:The network company involved in the case is a network service content provider and does not enjoy the indirect infringement exemption right of the network technology service provider of "notice-deletion" through the upload of articles by its employees. Without the author's permission, the network company provided the article involved in the case through the information network without indicating the author's name, thus infringing on the author's right of authorship and the right of information network dissemination, and should bear the corresponding civil tort liability. The court shall comprehensively consider the type and length of the work involved in the case, the popularity of the right holder, the number of clicks on the article, the time of infringement, the degree of fault, the nature of the article, and the reasonable expenses incurred by Yang Liming to stop the infringement, and determine the amount of compensation in combination with the remuneration standard of the Measures for Payment of Remuneration for the Use of Written Works.
Case No.: (2016) Gan Min Zhong No. 170.
Trial court: Jiangxi Provincial High People's Court.
*: Top 10 Typical Cases of Judicial Protection of Intellectual Property Rights of Jiangxi High Court.
3.If the network service provider fails to take relevant measures when it is aware that the work is infringing, the safe harbor rule does not apply.
Wang Yongtao v. Guangdong Zhangzhong Wanwei Electronics *** copyright infringement dispute case.
Gist of the case:Network service providers shall have a higher duty of review and care for the content published on their forums when they are clearly aware of the status of the rights of the works involved in the case. The alleged infringer involved in the case is aware of the existence of the infringement facts, and has the obligation and ability to take measures, but if it fails to implement it, the safe harbor rule no longer applies, and shall bear the corresponding tort liability.
Case No.: (2013) Sui Zhong Fa Zhi Min Zhong Zi No. 1164.
Trial court: Guangzhou Intermediate People's Court of Guangdong Province.
*: Top 10 Intellectual Property Civil Cases of Guangzhou Court in 2013.
4.Where network service providers are not subjectively at fault and have taken necessary measures, the safe harbor rule may be applied to exempt them from liability.
He Ruidong v. Li Xianghua and Tianjin Ideal Huitian Technology Development *** copyright infringement dispute appeal case.
Gist of the case:The people's court shall consider the following four factors when reviewing whether the network service provider applies the "safe harbor" rule provided for in Article 22 of the Regulations on the Protection of the Right to Transmit Information on the Internet: 1The network service provider has fulfilled the obligation of appropriate reminder and notification to the user. 2.Whether the network service provider knew or should have known of the existence of the infringement. 3.Whether the network service provider has directly or indirectly committed the infringement and directly obtained economic benefits from the uploaded content. 4.Whether the network service provider has fulfilled the removal obligation in a timely manner.
Case No.: (2009) Jin Gao Min San Zhong Zi No. 29 Trial Court: Tianjin High People's Court.
*: 2010 Typical Cases of Judicial Protection of Intellectual Property Rights by Tianjin Court.
5.The application of the safe harbor rule requires a determination of whether there has been a direct infringement.
Beijing Sanfang Copyright v. Chongqing Lidong Technology *** copyright dispute case.
Gist of the case:In order to balance the interests of copyright owners and network service providers, the Regulations on the Protection of the Right of Information Network Dissemination stipulate the conditions for the exemption of liability of network service providers, the so-called safe harbor rule. The application of the safe harbor rule requires a first determination of whether there is a direct infringement; If the service object of the network service provider directly commits the infringement or the service content provides assistance to others in the direct infringement, it is necessary to review whether the network service provider complies with the safe harbor rule to determine whether it is infringing.
Case No.: (2009) Yu Gao Fa Min Zhong Zi No. 79.
Trial court: Chongqing Higher People's Court.
*: People's Justice, Cases, No. 24, 2010.
6.If the network storage provider fails to set up a reasonable notification channel, it cannot claim that the safe harbor principle is exempt from infringement liability.
The plaintiff Beijing Panorama Vision *** and the defendant Shanghai Hanwei Information Technology *** infringed the right of information network transmission.
Gist of the case:As a network service provider, the company should foresee that it is very likely to be used as a convenient place for users to commit infringement, so it should take reasonable measures to prevent and stop infringement, including setting up a special convenient procedure for reporting infringement, publicizing the right holder and the public with the notification method and notification - deletion process, and setting up policies or measures to stop repeated infringement by the same user. If the accused infringer does not set up a clear and convenient notice-deletion procedure and policies and measures to stop repeated infringement when providing storage space services, it is not qualified to apply the "safe haven" and cannot be exempted from the liability for infringement compensation.
Case No.: (2013) Pu Min San (Zhi) Chu Zi No. 643 Trial court: Shanghai Pudong New Area People's Court **Shanghai Intellectual Property Research Institute: Case Report: The Impact of Failure to Set Up a Reasonable Notification Channel on the Application of the "Safe Harbor" Principle
