Controversy Over The Application Of The "Red Flag" Principle And The "Safe Haven" Principle

Zhang Ping, a professor at Peking University law school, believes that the document sharing platform, as an irresistible business model, needs reasonable space for healthy development.

In order to solve the contradiction between the platform side and the obligee, it is often time-consuming and laborious to make changes in the legislation. The international trend is also to reduce the frequent changes in the legislation, and seek solutions in the actual implementation.

Therefore, the role of judicial practice is even more important. Judges should use discretion cautiously, do not impose excessive examination obligations on the platform side, and the rights holders should also actively protect their rights. After discovering that their works have been uploaded by infringement, they should exercise the right to delete the notice and minimize the outbreak of litigation war.

Zhang Ping further explained that the "red flag" principle is the exception of the "safe harbor" principle, that is, if the violation of the right of information network pmission is obvious, like a red flag flying, the Internet service provider can not pretend to be invisible or to shirk its responsibilities on the grounds that it does not know. If in such circumstances, if the link is not removed, even if the obligee has not issued a notice, we should also assume that the chain knows that the third party is infringing.

Zhang Ping believes that in sharing platform, this principle applies to some famous works, or hits with high popularity. It can not be considered that all works are applicable to the "red flag" principle.

Xu Chao, the former inspector of the State Copyright Bureau, thinks that the operation modes of different document sharing platforms are the same and different. The important condition for platform side to avoid legal risks is "not directly obtaining economic benefits because users upload infringing documents", which should become one of the important considerations in the platform's design and operation mode.

At the same time, when the infringement documents appear on the platform infringe upon the legitimate interests of the obligee, even if the platform side has no fault, it should actively fulfill the obligation to stop infringement.

Xu Chao also stressed that video sharing websites are relatively easy to distinguish whether the works uploaded by netizens are infringed. For example, the popular films being released are easier to be identified if they are uploaded by some personal users.

However, this "know" rule does not apply to documents, and set up another judgment standard for documents.

Jin Haijun, associate professor of Law School of Renmin University of China, pointed out that there are still many ambiguities and ambiguities in the existing legal provisions for judging whether the platform party should know the existence of torts. Besides the need for proper discussion in legislation, the court's decision is also very important.

The court's decision should not only solve the case, but also be forward-looking.

Specifically, in the case of Chinese and English Baidu libraries, the court held that the platform side should have the obligation to "know" for larger browsing works, and should take pre audit measures. This view deserves further study.

Wang Qian, a professor at the Law School of East China University of political science and law, believes that there is ample evidence that the content on the platform is uploaded by users, which is an important condition for judging the document sharing platform as an information storage space service provider.

As the two aspect of the "safe harbor" principle, the premise of the application of the notice deletion principle is that the platform side does not know that there is no reasonable reason for knowing the existence of the tort; and the premise of the application of the "red flag" principle is that the platform side knows or has reasonable grounds for knowing the existence of the tort.

The platform should know that the existence of torts requires that the platform side bear general duty of care rather than review obligation.

In particular, if the platform requires the platform side to make a tort judgment on the document with a certain value of browsing or downloading, it is actually the scope of strict examination obligation instead of the scope of general duty of care.

For example, for

It is much more difficult to judge whether it infringed the video.

For example, a popular movie made by a movie company is almost impossible to be anonymous by one user.

After uploading for free, if this happens, we can basically judge the infringer's alleged infringement.

But unlike the movies that ordinary people can't photograph, everyone can write works of writing.

In the verdict of the case of the Sino Korean language and Baidu library, there is such a sentence: "when the contents of the document are obviously infringed, it is possible that the operator of the document platform should actively contact the uploaded person to verify whether the uploaded works are original or whether they have a legitimate authorization."

This is a typical duty of review, that is to say, we can not judge whether it infringed solely on the information of the document itself, but to verify other information, especially to contact with customers.

Whether or not we should impose such high obligations on document platform operators still need further discussion.