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

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.