Should Alibaba be liable for the counterfeiting activities of online stores? On the secondary liability of internet service providers in Chinese trade mark, copyright and tort law
作者: Shujie Feng
作者单位: 1Associate Professor, Tsinghua University, School of Law; Director of Innovation & Competition Law Center, SJD, University Paris I – Panthéon Sorbonne; Master in Law, University Paris I – Panthéon Sorbonne, Master in Law, Renmin University of China
刊名: Queen Mary Journal of Intellectual Property, 2017, Vol.7 (2), pp.191-210
来源数据库: Edward Elgar Publishing
DOI: 10.4337/qmjip.2017.02.03
关键词: ISP's liabilitysecondary liabilitycounterfeitingintellectual propertytort lawChinese lawISP's duty of care
原始语种摘要: According to Chinese copyright law, internet service providers (ISPs) are jointly liable for the piracy of internet service users (ISUs) if they are aware of or have reason to know the latter's illegal acts, while the Trade Mark Law imposes joint liability on ISPs only if it is aware of the infringing acts of ISUs. As for the tort law, which is of general applicability, it provides that ISPs are jointly liable if they know of an ISU's tortious behaviour, but what constitutes this knowledge is quite controversial. A transversal study between these three laws shows that the term ‘have reason to know’ or ‘know’ in related rules should be interpreted as encompassing constructive knowledge and negligence, in order to conform with Chinese judicial practice. The divergence between these laws,...
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  • liable 有责任的
  • liability 责任
  • constructive 建设的
  • obligation 义务
  • internet 互联网络
  • illegal 非法的
  • circumstances 情形
  • copyright 版权
  • diligent 勤奋的
  • recognize 承认