Abstract:
The "notification and removal" rule derived from the US copyright law is the exclusionary rule of network service providers. It has the functions of exemption, certainty and encouragement. The important reason for the application of the "notification and removal" rule to the copyright area is that network service providers have strong control over network content and have the authority of preliminary verification within their capabilities. Different types of intellectual property rights have different rights, different protection scopes, and different levels of infringement judgment. The e-commerce law extends the "notification and removal" rule to the Internet infringement areas such as trademarks and patents, and gives the e-commerce platform obligations not matching its capabilities. Removal measures impose unreasonable review obligations on e-commerce platforms. Unified application without distinction leads to the imbalance of interests. If the rule of "notification and removal" is regarded as an element of liability, it deviates from the presupposition function of the rule. Therefore, we should establish a corresponding system according to the characteristics of different types of intellectual property rights, the role positioning of electronic business platform, its own capabilities, technological feasibility and the development characteristics of the electricity supplier industry. For complaints about the infringement of copyright, trademark counterfeiting and patent counterfeiting under the network environment, the platform can take notification and removal-counter notification and recovery processing mode; for complicated complaints concerning invention patent, utility model patent and design patent infringement, confusion of trademark infringement, the platform can take the processing mode of "notification-notification forwarding-anti notification-application intervention treatment". At the same time, we should clarify the form and content of notification and counter notification, clarify the standard of necessary measures, increase the necessary measures of "freezing webpage", stipulate the liability system of compensation for misrepresentation, and further achieve the purpose and function of establishing the rule.