On the afternoon of December 16, Quality Brands Protection Committee of China Association of Enterprises with Foreign Investment (QBPC) Internet Committee successfully held the third seminar of Internet Brand Protection Theatre - Platform Liability in the Governance of Internet Intellectual Property Infringement. Three speakers shared their views and experience from the perspectives of scholar, platform and lawyer, and more than a hundred representatives from 68 member companies attended the event.
Annick Wang, QBPC Internet Committee Vice Chair, moderated the meeting. She thanked everyone for their active participation and gave a detailed introduction of the speakers and the agenda. She revealed that the Research on the Evaluation System of IPR Protection Index for E-commerce Platforms, a joint project of the IC and Professor Xue Jun of Peking University, would start with a kick-off meeting in the first quarter of next year, and she encouraged members to actively participate in the event.
Xue Jun, Professor of Peking University, Doctoral Supervisor and Director of Peking University E-Commerce Law Research Center, first discussed the issue of platform liability in the governance of IP infringement under the regulation of E-Commerce Law. Based on the E-commerce Law, Professor Xue divided the subjects of platform liability into three levels, e-commerce platform, quasi-e-commerce platform and general network service provider, which essentially covered a variety of new business models. He said that there were systematic differences in IP protection liability among different types of platforms, which needed to be considered in the light of the actual situation, rather than across-the-board. With regard to Article 41[YL1] of the E-Commerce Law，"An e-commerce platform business shall develop rules for protection of intellectual property rights and strengthen cooperation with owners of intellectual property rights, so as to protect intellectual property rights according to the law." Professor Xue said that this was a provision of practical significance and formed an organic integrity with other provisions instead of an advocacy provision. He then discussed the difficult problems of the e-commerce platform in fulfilling the responsibility of IP protection, including the "Notification-Deletion" rule, the "Counter notification -Restoration" procedure, article 45 of the E-Commerce Law and Article 1197 of the Civil Code. According to the future trend of the platform in fulfilling its responsibility for IP protection, he put forward several suggestions, including strengthening cooperation between the platform and right holders, establishing a hierarchical and classified protection mechanism, a reasonable liability guarantee mechanism and a special cooperation mechanism based on credit evaluation, fully respecting the autonomy of the platform, tapping the service capacity of third-party professional institutions, and establishing an accountability mechanism with punitive liability as a deterrent.
Then Mick Ryan, Director of Intellectual Property Strategy and Cooperation, Alibaba Platform Governance, shared the practice of managing IP infringement on e-commerce platform. He first introduced the development of Alibaba's ecosystem and IP protection system over the past 20 years. He said that Alibaba's IP protection had gone through email complaints, online and offline “Joint governance + Active prevention and control”, “Brand cooperation + Digital intelligent governance”, and finally evolved into social co-governance of multi-party participation. The gradual improvement was also the result of full cooperation with the right holders. He said that the existing Alibaba's complaint system had multiple channels covering seven major e-commerce platforms, provided a multilingual complaint guide and had a complete complaint handling process. He also introduced the provisions for preliminary evidence, necessary measures and the application of the principle of proportionality in the "Notification-Deletion" process of the e-commerce platform. He also introduced in detail the legal background and measures by Alibaba to fine-tune the operation of its complaint and grievance process through specific cases. Mick Ryan said that Alibaba platform would continue to formulate a scientific and reasonable IP management mechanism, and a fair and reasonable complaining and appealing process as required by laws and regulations so as to form a good network environment and competition order that respected IPR, and all kinds of legitimate rights and interests. On the issue of active prevention and control, Alibaba's active prevention and control technology had been applied to the IP protection on e-commerce, live broadcast, short video and other platforms. Through continuous upgrading of algorithms and technology, the main control strategy had been continuously improved with eye-catching results. In terms of offline cooperation and ecological co-governance, Alibaba assisted market regulatory departments and public security authorities in improving online and offline integrated protection, handling a few of excellent cases, and coordinated with a number of government agencies to carry out IP awareness activities for platform sellers to reduce the occurrence of infringement at grassroots. At the same time, Alibaba actively promoted legal research and cooperation with universities, and strengthened the training of IP talents.
Catherine Law, Managing Partner of Guangdong Harvesting Law Firm, then made a presentation on three topics, including the overview of IP cases involving e-commerce platforms, the IP protection obligations of e-commerce platforms and the qualitative responsibility of platforms. She believed that in recent years, the number of lawsuits involving leading e-commerce platforms was huge, among which IP infringement cases were the most prominent. Most of the litigation cases were about IP ownership, infringement disputes and so on. Through specific cases as examples, she analyzed the important platform responsibilities, including rule establishment, audit obligations, notification-deletion obligations, information preservation, provision obligations, other responsibilities, and so on. Under the circumstances of internet, the platform and the seller definitely bear different liabilities. In determining whether the platform played the role of the platform or the seller under the cover of platform, Catherine provided some tips based on the case study. For example, the self-operated shops of the platform would be marked in a significant way while the seller information would be marked on the commodity page and in kind. Meanwhile the transaction documents and the agreement between an e-commerce platform and sellers would also prompt the sales subject. In addition, she very much agreed with Professor Xue and Mick Ryan that the cooperation between internet platforms and right holders under Article 41 of the E-Commerce Law was not just an advocacy provision but required practical implementation by all parties in order to jointly prevent the occurrence of infringement.
During the Q&A, the participants and speakers discussed the safe harbor strategy suspected of evading responsibility in some agreements between platforms and users. At the end of the meeting, Annick Wang thanked members for their enthusiastic participation while wishing everyone Merry Christmas and looking forward to the next meeting.