The basic problem faced in comparative and interdisciplinary research is the adoption of the norm as well as its concrete meaning. The same is for the so-called “Duty of Care”. According to The Oxford Law Dictionary, the duty of care is “the legal
99
For instance, Section 512 (m) of the DMCA and Article 15 of The E-Commerce Directive of EU. The regulation of China is not quite the same while it is neither the ISPs’ duty to imply the general monitoring. According to Paragraph 2, Article 8 of the Provisions on RDIN, if an ISP fails to adopt preventive measures, the court could not directly recognize them at fault.
100
See Jaani Riordan, The Liability of Internet Intermediaries, Oxford, 2016, p.87.
101
The application of the tort law in copyright disputes is clearly supported in the case of Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 435, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1984), in which the court held the opinion that “the absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringement on certain parties who have not themselves engaged in the infringing activity. For vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another.”
obligation to take reasonable care to avoid causing damage.”102 There would be no
liability for negligence unless the given entity is stipulated to take some kind of duty of care which is found out to be omitted.103 On one hand, there is no general duty to keep
others from being damaged. On the other hand, there is being more legal obligations on a given entity to prevent the damage caused to others which could be reasonably foreseen with the coming of the risk society. Although the expression of “tort” in traditional scenarios and “infringement” in the case of copyright are not the same,104 the
elements in the tort theory to impose some kinds of duty of care on an entity are of considerable meaning when we discuss that in the scenarios of copyright infringement.
In tort theory, there are mainly two kind subjective states that may lead to the liability which are intent and negligence. Both of these two kinds of subjective states exist when we consider the situation of the ISPs in copyright infringement. For instance, when the ICPs illegally upload works online themselves or the ISPs induce or contribute willingly to the users’ infringing activities, they would be recognized as directly or indirectly infringing copyright intently. Under these situations, the liability of the ICPs or the ISPs is clear and justified. However, according to the tort theory, the most controversial situation is not when the damages are caused by intent but by negligence.105
As for this, the law does not provide a remedy for everyone who suffers from the negligence of others.106 And just as mentioned above, people do not have a general duty
102
See Elizabeth A. Martin, ed., A Dictionary of Law (Fifth Edition), Oxford University Press, 2003, p.165. In addition, according to the Business Dictionary online, duty of care is “the responsibility or the legal obligation of a person or organization to avoid acts or omissions (which can be reasonably foreseen) to be likely to cause harm to others”, see at http://www.businessdictionary.com/definition/duty-of-care.html.
103
See Satish Kumar Jain, Economic Analysis of Liability Rules, Springer,2015, p.79.
104
See Qian Wang, The Course of Intellectual Property Law(知识产权法教程), Renmin University of China Press(中国人民大学出版社)，2016， pp.247-248. According to the author, the constructive requirements of “tort” should include the subjective state of the entity while that of “infringement” would not. Furthermore, the subjective state of the entity in copyright infringement would only influence the specific liability and especially the damage compensation. To be noticed, there are being more and more situations in tort theory and practice in which the entities are imposed some kind of liability regardless of their intent state. And more importantly, the liability of damage compensation is actually the most critical elements in deciding the legal sanctions on the ISPs. In a word, there do is a distinction between tort and infringement, while it does on influence the meaning to refer to the tort theory when we consider the ISPs’ duty of care in copyright infringement.
105
See Brendan Greene, Course Notes: Tort Law, Routledge,2012, p.1; Catherine Elliott & Frances Quinn, Tort Law, Pearson Longman, 2011, p.17.
106
to prevent other persons from suffering damage. For a given entity to be liable for its negligence, there is an undermine assumption it should not have been negligent, or In other words, it should have taken some kind of care to prevent the damage. If there has been a legal duty of care of the defendant while it breaches that duty, the defendant then should be liable for the caused damage.107
The crucial point then comes to the establishment of the duty of care. In the common law system, the widely accepted standard is the Caparo test, which was set down in Caparo v. Dickman (1990).108 When we consider whether a given party should
undertake some duty of care under certain situations, three requirements should be considered: foreseeability, proximity, as well as fair, just and reasonableness.109 These
requirements are of notable importance when it comes to the ISPs’ duty. However, all of the three elements are uncertain in some way. Although there has developed numbers of precedents and detailed theories to explain the requirements, it still needs to be discussed in specific situations, which is almost the most distinguishing feature of modern tort law.
Besides, the term “duty of care” as well as the requirements mentioned above is semantically adopted by the common law system. Nevertheless, it is also commonly used as a general expression by the scholars from the continental legal system and it is even adopted by the corresponding national legislations.110 And if we consider the
legislation of the civil law system, we could also find similar rules undertaking the function of duty of care in the common law system. For instance, the German courts
107
See Brendan Greene, Course Notes: Tort Law, Routledge,2012, p.1.
108
See Catherine Elliott & Frances Quinn, Tort Law, Pearson Longman, 2011, p.21.
109
See Brendan Greene, Course Notes: Tort Law, Routledge,2012, p.3.
110
For instance, France has just adopted a law naming “Devoir de vigilance des entreprisesdonneusesd’ordre”, concerning a corporate’s “duty of vigilance” or “duty of care” in English, see Jane Moyo, France adopts new corporate “duty of care” law, at https://www.ethicaltrade.org/blog/france-adopts-new-corporate-duty-care-law; Norton Rose Fulbright, A new duty of care for the most significant companies in France, at http://www.nortonrosefulbright.com/knowledge/publications/147606/a-new-duty-of-care-for-the-most- significant-companies-in-france. According to these reports, the legislation is to “establish and implement a diligence plan which should state the measures taken to identify and prevent the occurrence of human rights and environmental risks resulting from their activities, the activities of companies they control and the activities of sub-contractors and suppliers on whom they have a significant influence”. It is clear that the rules on the cooperate is just about their duty of care in the English context.
have developed the rules of Verkehrssicherungspflichten, meaning that whoever leads to some potential dangers to others by his activity or property should be obliged to prevent the risk.111 This is quite similar to the meaning of duty of care in the context of
the common law.