网络侵权“通知–删除”规则适用研究

Study on the Application of the “Notice-and-Remove” Rule for Online Infringement

摘要: 网络的更迭催发了海量多样的网络侵权行为，“通知–删除”规则愈发重要，因此《民法典》制定过程中对其制度框架进行了重大调整。但该制度在运行的过程中显露出些许不足：各法院及学者对云服务商、小程序商等新型网络服务提供者的责任认定存在分歧，重复侵权现象仍数见不鲜，通知–删除规则被权利人、网络服务提供者以及网络用户滥用，错误通知规制不完善等问题久悬不决，为司法实践带来诸多困难。对此本文建议应尽快明确新型网络服务提供者的责任并完善错误通知与反通知规则，适当提高网络服务提供者的审查义务并加强其注意义务，实名认证制度也应尽快强化落实，以此来平衡各方利益。

Abstract: The notice-and-removal rule has become increasingly important as the Internet has given rise to a huge variety of online infringements, and the institutional framework was therefore significantly adjusted during the development of The Civil Code. However, the system has revealed some shortcomings in the course of its operation: courts and scholars have disagreed on the liability of new online service providers such as cloud service providers and applet providers, repeated infringements are still common, the notice-and-delete rule has been abused by right holders, online service providers and online users, and the regulation of wrongful notices has been left unresolved for a long time, bringing many difficulties to judicial practice. In this regard, this paper suggests that the liability of new network service providers should be clarified as soon as possible and the rules of error notification and counter-notification should be improved, the duty of review of network service providers should be appropriately increased and their duty of care should be strengthened, and the real-name authentication system should be strengthened and implemented as soon as possible, so as to balance the interests of all parties.