Study on Internet Service Providers' Duty of Care for Copyright Infringement under Algorithmic Recommendation Technology

Abstract

The liability of ISPs under algorithmic recommendation technology is examined from two aspects: whether there is fault (knowingly or recklessly) and whether necessary measures have been taken: firstly, whether the algorithmic recommendation technology has aggravated the duty of care of the ISP; secondly, whether filtering measures should be regarded as “necessary measures” that should be taken by the ISP. First, whether the algorithmic recommendation technology has aggravated the duty of care of the network service provider; second, whether the filtering measures are considered as “necessary measures” that should be taken by the network service provider. Nowadays, when algorithmic recommendation technology is widely used, it is even more urgent for network information service platforms to fulfill their due diligence obligations in accordance with the law, which not only concerns the balance of interests between right holders and platforms, but also involves the issue of how to fairly and reasonably distribute the benefits and risks brought about by the development of science and technology. Currently, under the algorithmic recommendation mode, the process of uploading content by users is separated from the dissemination process, and the role of the platform has changed from a passive “neutral” to an active “participant”, at which time, the platform still adopts an ex post facto “notification and deletion” approach. At this point, it is difficult for the platform to claim that it has fulfilled its responsibility by adopting the behavior of “notification and deletion” after the fact. The platform can use algorithmic technology to realize accurate pushing, but also has the ability to realize copyright filtering and monitoring at a more economical cost to reduce the risk of infringement. According to the principle of balance of interests, the current technical conditions and the development of reality, it should be changed from the passive “notice and deletion” rule to the stage of increasing the main responsibility of the platform, i.e., the platform establishes the rules of intellectual property rights protection, and obtains the authorization based on the principle of the utmost good faith in order to exercise the duty of care of the good administrators.