Due to the “innocent” role of the ISPs in third party copyright infringement, the injunction that needs no subjective fault to be issued is more commonly applied than the compensation to the damage in corresponding case. Nevertheless, the authority of the injunction in promoting the ISPs to assume the duty of care in copyright protection is quite limited, based on the fact that it would be better to wait than to act expeditiously. Only with the additional supplement of the compensation, which is the “real liability”, could it be improved the authority of the legal mechanism.
4.4.2.1 Current Regulation on the Liability of Compensation for Damages
Different from the injunction, the legal basis of damage compensation, or “monetary remedy” under the DMCA, it not the duty of care itself but the violation of the ISPs’ duty of care as well as the corresponding loss of the copyright owners. For instance, according to Article 13 of the IP Enforcement Directive, the order from the member states’ judicial authorities asking the infringer to pay the right holder damages should be limited to the situations when the entity knows or has reasonable possibility to know the involvement in the infringing activities. It is similarly stipulated in the Tort Law of China. Accordingly, the ISP should only be responsible for the damage in causal relationship with its negligence in dealing with the notice from the copyright owner, unless the ISP itself “knows” the specific infringement.381 A constructive knowledge of
the specific infringing activity is thus needed for the ISPs to assume the liability of
381
compensation for damages.382
4.4.2.2 Liability for Violation of the Duty of Care
The legal basis of damage compensation or the tort liability in a strict sense is limited to the entity’s knowledge of the specific infringement.383 Therefore, the duty to assist in
specific infringement will not directly lead to the ISPs’ liability to compensate the damage of the copyright owners. While if the ISPs do not follow the requirement of the notice and takedown procedure, or the order of the courts to disclose the infringing users’ information, the ISPs should be recognized as ignoring the infringement willingly and should be responsible for the enlarged damage to the copyright owner.
To be noticed, compared to the DMCA and the EU Directives, the Tort Law of China distinguishes the damage before the notice and that after, imposing the ISPs delaying in taking down the infringed materials the liability of compensation for the enlarged damage. Different from the Tort Law of China, following the notice and takedown procedure is a prerequisite for the ISPs to be protected by the safe harbor. Comparatively speaking, the mechanism of the DMCA is more powerful than that of the Tort Law of China, while the latter is more fair since the damage happens before the notice is in no relationship with the ISPs on condition that it has assumed the duty of general supervision.
More importantly, there may be situations when the ISPs are recognized to assume secondary liability. The application of the liability under current mechanism has been discussed above. From the perspective of this dissertation, the ignorance of the copyright owners’ notice or the courts’ injunctions should trigger the imposition of the damage compensation.384 Moreover, the ISPs should also be held liable when they
violate the duty of general prevention and that of supervising repeat infringement. Different from the duty of assisting specific infringement which is a passive one, the
382
See Xiangjun Kong, Judicial Phiosophy and Legal Methods in Network Copyright Protection(网络著作权 保护法律理念与方法),China Legal Publishing House(中国法制出版社),2015, p.213.
383
Ibid, pp.212-213.
384
See Ansgar Ohly, The Broad Concept of “Communication to The Public” in Recent CJEU Judgments and The Liability of Intermediaries: Primary, Secondary or Unitary Liability? Journal of Intellectual Property Law & Practice, 2018, Vol.13, No.8, p.675.
duty of prevention is should be actively assumed by the ISPs and the violation itself could provide sufficient evidence for the ISPs’ negligence. Under this situation, a constructive knowledge is established and the copyright owner could directly ask the ISPs to assume the secondary liability. Of course, the damage compensated by the ISPs should be calculated in line with the factual contribution of the ISPs,385 and the ISPs
could further ask for compensation from the direct infringers. But there is no need for the copyright owner to prove that the ISPs have an actual and specific knowledge of the given infringing activity.
To be exact, if the infringement is found to be conducted by the repeat infringer. The effectiveness of the ISP’s policy to deal with this kind of situation could be reasonably denied. Accordingly, it would be justified to ask the ISP to undertake joint liability with the direct infringer. Nevertheless, the ineffectiveness itself could not be recognized enough to justify the ISP’s negligence of the duty which would certainly lead to the whole liability for damage compensation. To be precise, the policy to deal with repeat infringer is actually part of the whole measures the ISP could take to keep the general situation of its service as a litigate and acceptable level.386 Therefore, the effectiveness
of the policy should be evaluated together with the ISP’s whole efforts to realize the general prevention when the specific infringer in a given case is not a repeat one by which to determine whether the ISP should undertake the liability without specific knowledge of the infringement.
The most controversial problem then comes to the ISP’s liability for violating the duty of general prevention. To be noticed, according to traditional tort theory, there is no need for the given entity to be aware of the specific infringed victim for it to be held liable for the negligence once the danger leads to the loss of the victim is proven to be
385
See Ansgar Ohly, The Broad Concept of “Communication to The Public” in Recent CJEU Judgments and The Liability of Intermediaries: Primary, Secondary or Unitary Liability? Journal of Intellectual Property Law & Practice, 2018, Vol.13, No.8, p.675.
386
According to Professor Graeme B. Dinwoodie, the disclosure of the infringing user’s information as a cooperative mechanism is also a kind of assistance in preventing unlawful conduct, see Graeme B. Dinwoodie, A Comparative Analysis of the Secondary Liability of Online Service Providers on Graeme B. Dinwoodie, ed., Secondary Liability of Internet Service Providers, Springer International Publishing, 2017, p.72.
caused or contributed thereby.387 The reason to adopt different rules in the area of
copyright infringement is both due to the legislative model of the DMCA and the balancing of different entities’ interests which has been discussed in Chapter 3. Nevertheless, it has already been argued that the ISPs should play a more active role in dealing with online copyright infringement, by which to realize the real “neutrality” of the service. Correspondingly, in addition to the mechanism of finding the ISP’s significantly intent contribution or inducement of the direct infringement, the serious situation of online infringement itself could be reasonably referred as the justification for the ISP’s joint liability.
Last but not least, the ISP’s liability purely based on the violation of general prevention should be limited to significantly limited situations, represented by the Pirate Bay. To tell the truth, the critical difference of basing the ISP’s liability on its general duty of care and on the recolonization of the constructive intent which is an essential element of the constructive requirements of contributory liability or inducing liability is not the final result of the judgement, but is primarily the logic in the legislation and the explanation. It is not suggested by this dissertation to impose the liability for damage compensation on the ISPs merely for the limited online infringement of their users, like the current situation of Youtube. Instead, the principle of proportionality should by duly respected for the court to impose the liability on the ISP.