Determining the Duty of Care Regarding Copyright for Online Service Providers in Algorithm-Based Recommendations

Abstract

The operational mechanisms of algorithmic recommendation technology, in conjunction with user preferences, jointly facilitate the dissemination of infringing works. Online service providers exert a degree of control over these technological mechanisms. Consequently, the principle of technological neutrality no longer applies to such providers, and the original balance of interests has been disrupted. This constitutes the fundamental rationale for adjusting copyright due diligence obligations. The original copyright duty of care was determined based on the prudent manager standard. However, algorithmic recommendation technology elevates both the risk of infringement and the capacity for due diligence, necessitating an enhanced standard. Otherwise, both the necessary measures requirement and the reasonable measures requirement demonstrate limitations. Specifically, the copyright duty of care for network service providers should be expanded. In the pre-emptive phase, they should fulfil a copyright filtering obligation. In the post-incident phase, when copyright holders pursue private remedies, the necessary measures requirement should, under specific circumstances, reach the standard of preventing obvious infringement. In public remedies, network service providers should demonstrate the reasonableness of their algorithmic recommendation mechanisms.