Research On Problems Of Criminal Protection Of Copyright In China

With the emergence of knowledge-based economy, piracy has become serious on global level. There is a trend of tightening combating piracy in the USA, EU and even within the WTO. The criminal protection of copyright becomes one of the heated topics in the international community. PRC has set up Scientific Development Outlook and the task of constructing creative-oriented country and is also implementing National IP Strategy, so PRC is confronted with new challenges and problems in criminal protection of copyright. Only the finding of its internal logics will promote further research on criminal protection of copyright in a problem-thinking approach. Therefore, the main research object of this paper is to find out the major relating problems confronted by PRC and their solutions based on the internal institutional logics.Since the enactment of Criminal Copyright Act of 1994, the development of PRC criminal copyright law has been a compulsory institutional change led by the government. The national strategic demand and international obligatory requirement should be two determinants in the development of criminal copyright law. Also the function of criminal copyright law is indispensable from the informal social institutions. From the three perspectives of value, rule and fact, PRC criminal copyright law is confronted with four problems (challenges) respectively:to found its legitimacy on the level of value; to fulfill TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) criminal obligation and to adapt to digital and Internet technology on the level of rule; to improve judicial effectiveness of criminal copyright law on the level of fact. Therefore, an in-depth analysis of the above-mentioned problems may provide theoretical basis and responding solutions for institutional improvement and effective function of PRC criminal copyright law.The legitimacy of criminal protection of copyright may be illustrated in an end-means approach. In terms of legal interest (Rechtgueter), copyright is private legal interest reflecting deeply public legal interest, because harms to copyright injure not only the right holder (eg. losses suffered from piracy) but also the national economy (eg. reduction of investment in copyright industries and employment opportunities, injuries to consumers’interest). Serious copyright piracy and infringement has become a lethal factor to development of copyright industries. The use of criminal law should follow the modest principle and should not exceed its rational boundary in the course of copyright protection, especially under the background of PRC model of violation-and-crime dichotomy while criminal punishment for misdemeanor in most foreign countries only equaling PRC administrative punishment. From the perspective of matching formal and informal institutions, criminal copyright law should be reinforced by informal institutions represented by social morality, which may be justified by the mechanism of balancing interests.Article 61 of TRIPS creates international obligation for PRC of criminal protection of copyright, which should be treated with rationality. This paper makes an in-depth verification of conformity of PRC criminal copyright law with TRIPS criminal obligation, It takes into account the WTO Panel Report (WT/DS362/R), makes an exact clarification of TRIPS criminal obligation and a comparison between TRIPS requirements such as "copyright", "commercial scale", "wilful", "remedies available" and corresponding elements in PRC criminal copyright law. Article 217 and 218 of PRC Criminal Act should be considered as a whole, which forms the criminal copyright law system for combating copyright piracy; in fact, Article 217 alone is sufficient to fulfill TRIPS criminal obligation for copyright. The final conclusion is that, in the sense of legislation, PRC criminal copyright law has ensured the criminal procedures and penalties to be applied in cases of wilful copyright piracy on a commercial scale; therefore, PRC has fulfilled the minimum standard of TRIPS criminal obligation.As a response to digital and Internet technology, PRC has established relatively comprehensive legal mechanism for Internet copyright protection. However, in the sense of legislation, PRC criminal copyright law seems to lag behind while in the sense of judiciary, the statement that "there is a conflict between copyright law and criminal law" is false. PRC should accomplish corresponding adjustment to digital and Internet environment through legislative improvement. Based on "Internet Treaties", PRC criminal copyright law should make a limited expansion of criminal protection from aspects of right of making available to the public, technological measures and copyright management information. As for right of making available to the public, the current judicial interpretation has dealt with its criminal protection while it needs to be improved. Criminal liability of Internet service providers (ISP) and P2P (peer-to-peer) users needs to be treated specially. As for criminal regulation of technological measures, circumvention may be incorporated into the current copyright criminal law system based on the nature and purpose, while preparation for circumvention may be incorporated into the newly enacted criminal norms by amendment to the criminal law for proper regulation. Deletion or alteration of copyright management information is indirect copyright infringement and should be regulated with prudence.The effectiveness of PRC copyright criminal judiciary should be improved urgently. This paper makes a primary empirical analysis from the perspective of application of criminal law based on 52 copyright criminal judgments. Based on the sample cases, it makes generalization of application models from aspects such as classifications of criminal acts and objects, statutory acts of "reproduction-distribution", sale of pirated books and phonograms, illegal service of Internet games, etc.. Based on the practical confusion of application of crimes and combined with corresponding judicial interpretations, theoretical clarification of the three crimes stipulated by Article 217,218 and 225 should be made. It is suggested to treat sale of pirated books and phonograms with crime of infringing copyright. The key point for improving effectiveness of copyright criminal protection is the certainty of penalty, so PRC should focus on improving the mechanism of transferring criminal copyright cases from administration to judiciary and promoting effective function of judicial system.