Oscillating from Safe Harbor to Liability: China's IP Regulation and Omniscient Intermediaries
Danny Friedmann, Oscillating from Safe Harbor to Liability: China’s IP Regulation and Omniscient Intermediaries, THE OXFORD HANDBOOK OF ONLINE INTERMEDIARY LIABILITY (Giancarlo Frosio, ed., OUP: Oxford 2020) 277-294.
21 Pages Posted: 18 May 2017 Last revised: 2 Jan 2021
Date Written: April 9, 2017
There are opposing and strengthening forces that influence Intermediary Liability (IL) regulation in the People’s Republic of China (China). China’s E-Commerce Law draft raises the standard for knowledge before infringing information might be removed; while the many laws and regulations involved in censorship exclude the possibility of ignorance. Moreover, the existent technological level of big data and developments in artificial intelligence have caught up with discussions about the desirability of safe harbors and the degree of filtering requirements. On the other hand, there is case law, recently codified in guidelines for Beijing courts, which is reinforcing the duties of care.
This article applies a holistic approach by analyzing the individual forces to see what their influence is on IL case law.
Although IL regulation in case of trademark law followed IL in case of copyright law, Section 2.1 will deal with it in a reversed chronological order, since IL regulation in case of trademark law provides an indicator where the converged IL regulation will lead to. Section 2.2 deals with legislation and case law of IL in case of copyright infringement; Section 3 provides the conclusion. Due to the limitations in length this article will not deal with the relevant obligations for intermediaries to disclose the identity of the direct infringers, and the consequences, withdrawal of their immunity, in the case that they do not.
Keywords: intermediary liability, China, internet, online service provider, trademark law, copyright law, algorithms, big data, filtering, monitoring obligation, wilful blindness, strict liability, safe harbor provisions, E-Commerce
JEL Classification: O30, O31, O33, O34, O36
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