How to utilize notice-and-takedown procedures in IP enforcement on e-commerce platforms – a lesson from China

Abstract

ABSTRACT Notice-and-takedown procedures that play a vital role in remedying overwhelming IP infringement on e-commerce platforms rely mainly on self-regulation in a global marketplace. The new Chinese E-commerce Law demonstrates the need for a legislative intervention to overcome self-regulated procedures’ defect in preventing misuse. Further, laws on NTD procedures tend to be general and leave room for courts to interpret, such as proper elements of a competent notice, what constitutes prima facie evidence, what are the necessary measures, how to define ‘in a timely manner’, how to resolve repeated infringement. Finally, even with government regulation of NTD procedures, self-regulation still plays an essential role in detailing statutory provisions because its flexibility echoes the rapid transformation of Internet. Collective self-regulation is needed to overcome individual self-regulation’s weaknesses and, to provide a democratic and transparent groundwork on which individual self-regulation formulates specific and exercisable norms, and courts can passively review fairness of self-regulation rules when it is necessary in adjudicating cases.