试论网络经营者的“避风港规则”

On the Safe Harbor Rule of the Internet Service Providers

针对不同类型的著作权侵权指控,网络经营者可以提出不同的抗辩事由。对于直接侵权的指控,网络经营者可以证明自己的行为不构成侵权,而对于间接侵权的指控,网络经营者可以主张自己符合法律规定的五项条件,即履行标识义务、未改变相关复制品的信息、主观无过错、未从复制品的上传中直接获得利益以及积极履行删除义务,从而适用"避风港规则"。

The internet service providers can put forward different demur incidents in different lawsuit, in the direct infringement lawsuit, the providers should prove that their action is not an infringement, and in the indirect infringement lawsuit, the providers can claim that they shall not be liable for compensation according to the ＂safe harbor rule＂ by proving that： they have. publicized the information of the provider; they do not altered the work, performance, or audio-visual recording provided to the service object; they do not know and has no justified reason to know that the works provided by the service object has infringed upon an other＇ s right; they have not directly obtained economic benefits from the service object＇ s provision of the work, performance, or audio-visual recording; after receiving the notification from the owner, they have deleted the work, performance, or audio-visual regarded as infringing on the right of the owner according to the provisions of this regulation.