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Notice and Take Down: How the Shift from Copyright Law to Chinese E-Commerce Law Poses an Unnecessary Disturbance to E-Commerce

  • Shujie FengEmail author
  • Yong Wan
  • Fang Fang
Article
  • 99 Downloads

Abstract

The notice-and-take-down (NTD) procedure, as an enforcement tool of copyright, is equitable and balanced. However, its applicability to other types of intellectual property depends on necessary adaptation. Currently, the Chinese Tort Liability Law has created an incomplete NTD procedure applicable to all kinds of civil rights, and Chinese e-commerce platforms have managed an internal NTD procedure in which they decide on IP infringements and measures to take. The Chinese E-Commerce Law has created a new NTD procedure exclusively for e-commerce, which requires the automatic removal of allegedly infringing items for at least 15 days and an automatic restoration of removed items in the absence of complaints submitted to relevant authorities by the holders of IP rights. The new procedure will seriously affect e-commerce due to its automatic removal measures, even more so in light of the current problem in China of IP trolls. The e-commerce platforms will probably resist the injunction-like NTD procedure in order to maintain their controlling role, so as to protect the interests of online stores as well as their own interests.

Keywords

Chinese e-commerce law Notice and take down ISP liability Online intellectual property protection Platform liability 

Notes

Acknowledgements

The authors are grateful to Yanwei Fan of JD, Wei Zhan of Alibaba, Xiaoming Ma of Sohu Institute, Wei Pan of the Intellectual Property Chamber of Beijing People’s High Court and Xiang Pu of IP House database for the valuable information and discussion. The authors are thankful to Kristina Da Costa (an LL.M. student of Tsinghua Law School) for her editing assistance. The authors are responsible for any errors in this article.

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Copyright information

© Max Planck Institute for Innovation and Competition, Munich 2019

Authors and Affiliations

  1. 1.Ph.D. (Panthéon Sorbonne), LL.M. (Renmin University); Associate Professor, Tsinghua UniversityBeijingChina
  2. 2.Ph.D. and LL.M. (Renmin University); Professor at Renmin University of ChinaBeijingChina
  3. 3.LL.M. (Nankai University); Ph.D. candidate, the Law School of Tsinghua UniversityBeijingChina

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