Zhang Jin: Haven principle also applies to e-commerce platform

Zhang Jin, a professor at the Institute of Civil and Commercial law, said in a recent seminar on intellectual property protection in the field of electrical commerce, the principle of safe haven is also applicable to E-commerce platform, "Fault is the core of the safe haven, that is, the electric business platform must have no fault on the subjective liability, and in the Should be determined by the mode of operation and the duty of care. ”

Zhang Jin that the business model determines the participation behavior and control ability of Taiwanese businessmen in online transactions, and directly affects the level of duty of care and responsibility attribution. Taobao for such a platform, it is not a simple technology provider, in accordance with the Platform service agreement has a certain management and supervision of the platform business functions, so to bear the corresponding review and pay attention to obligations. On the other hand, if "the review obligation and the duty of care are fulfilled according to the platform rules, it can prove that there is no fault." ”

The safe haven principle is used for online copyright protection, the aim is to limit the responsibility of network service providers, to guarantee the fast and free network information, and to promote the development of Internet industry. China's 2006 promulgated the implementation of the "Information Network dissemination Rights protection regulations" 23rd, it is clearly stipulated that the Network service provider after receiving the notice of the right person, in accordance with the provisions to disconnect or delete the relevant infringement links, do not assume liability. However, it is not expressly applicable to the protection of trademarks and patent rights in the field of electronic commerce.

At present, in the intellectual property rights of the electrical business to go before the platform of Taobao, has been a useful exploration, formed a basic integrity system. Data show that in 2011, Taobao total deletion of infringing merchandise links up to 63.2 million, penalties for violations of 702,000 members. Among them, after the relevant right person notice deletes the related infringement link 870余万条, through the Taobao daily supervision mechanism to delete more than 54 million articles.

Zhang Jin that the operation mode of e-commerce platform is very similar to the network service provider in the sense of copyright law, and the tort liability law, which was implemented in 2010, also absorbs the principle of safe haven, which is applicable to all the infringement of civil rights and interests, including the right of reputation, privacy, copyright and trademark rights. The safe haven principle is an effective rule of the Platform service provider, the right person and the consumer in the network environment, which can be applied to the identification of trademark infringement on the electronic commerce platform. ”

However, Zhang Jin also stressed that because of the "Tort Liability Act 36th" only refers to the notice, did not mention the copyright regulations in the design of the qualified notice, the notice of the review, the notification and other rules, in practice, there is the risk of abuse by the right person. "should be aimed at 36, the safe Haven Principle promulgated the corresponding judicial interpretation, to the specific refinement of the regulations." ”

Yousei, vice president of the Alibaba Group's legal department, said that there was a real abuse of rights in practice, with some rights holders protecting intellectual property rights, restricting free competition and monopolizing market prices, which accounted for nearly half of all such notices. She introduced, Taobao therefore in the rights of the process to increase the seller's quality certification links, so as to avoid intellectual property rights abuse, the commercial origin of the regular business.