On The Criminal Law Protection Of Network Copyright

With the rapid development of information network communication technology,people from “touch" to "enter" to "live in" the network,and now gradually developed into"intergration with network".The Internet is constantly changing people's ideas and ways of thinking.It has brought people's daily life quickly,conveniently,efficiently and comfortably.Meanwhile,it is also inevitably used as a tool of crime?Cyberspace has become a new crime distributing center,and abusing information network technology platform is a typical example of infringing other people's copyright seriously.In the current implementation of the "strong"protection strategy of intellectual property rights in the country,In the face of infringing network copyright,how to integrate the civil law,administrative law and criminal law protection,clear the criminal circle? In the case that the legal concept and rules of Internet users are generally less than the traditional space,should we take "profit making" as the subjective element of relevant crimes? In the framework of the existing criminal law,the expansion of the scope and types of legal offense extended,whether there is a legitimate basis? In particular space,what method and path should be adopted to let the criminal law follow up on copyright protection? Obviously,these questions must be answered systematically and accurately.In the past a considerable period of time,based on the disorderly competition of market players,the characteristics of economic man's profit,the rule of law,the emphasis on regulating the operation of public power,and so on,the legal protection of intellectual property rights has been a short board,the regional legal system of our country,follow up to the copyright protection of criminal law more weak.Moreover,both the theory of intellectual property rights and the theory of criminal law,the systematic and profound research results are very rare.Based on this,it is necessary to study the vision from the fact of infringement criminal law and cyberspace,to draw the behavoir forbidden zone through the analysis on problem solving,to increase the legal protection of intellectual property rights through the construction of the final guarantee law.There are six chapters in this papper,about 200,000 words.The first chapter defines the core and the foundation and the carrier of network copyright criminal law protection,and through the brief induction related concepts and the chain,establishes the full text discussion foundation.First,the network copyright and its characteristics are defined.Following the criminal law regulation copyright in cyberspace is based on three essential conditions,that is,the use of network communication technology and the increase of Internet users,the formation of the Internet space.Without the copyright in the network,there will be no criminal law to protect network copyright.Secondly,combing the progress of the copyright's protection by the civil law to the criminal law,and analyzing the important levels of legal protection,it helps to clarify the correlation between the criminal protection of copyright and the criminal protection of network copyright.Thirdly,the connection between network copyright and network works is analyzed.Because the network works are the works created by the digitalization of traditional works or the direct network digitization,the network copyright is the special copyright in syber space.The second chapter investigates the process of criminal protection of network copyright.First of all,from the legal level to investigate the criminal law and the copyright law,to investigate the ideas,foundation and opening of protection of criminal law of network copyright.The article 217 of the Criminal Law in 1997 sets up the crime of infringing copyright,and lays the foundation for the protection of copyright by criminal law.Copyright law revised in 2001 fisrt opened the criminal protection of network copyright in the Internet era.Secondly,it investigates how the “Regulations for the Protection of Information Network Dissemination Rights” to enrich connotation of the constution of cimie of infringing copyright from the administrative leve,and the relevant administrative laws and regulations to refine the protection of network copyright by criminal law.Thirdly,it investigates the intensity of the explanation of the relevant provisions of the above laws and regulations from the judicial interpretation level.The three judicial interpretations clear what and how to implement the relevant criminal law on the protection of network copyright by criminal law in 2004,2005 and 2007."Opinions in 2011" deepened the protection of network copyright by criminal law on the basis of the above-mentioned laws and regulations and interpretations.Now criminal legislative mode judicial interpretation still can not meet the reqire of copyright protection in the network era based on the last investigation.Criminal law should strengthen the protection of network copyright to deal with the chanlege in "Internet+" era.The third chapter explores the balance of interests in the criminal law protection of network copyright.As a kind of value,interest is the appeal and expectation of people.Thebalance of interests is the pursuit of the interests of all parties,to achieve maximum benefits,fight game results,balancing of interests is to solve the conflicts of interests,to achieve the balance of interests.The balance of interests exists everywhere in society,is a legislative and judicial principle,is the cornerstone of intellectual property law,and is the essence of copyright law.The interests and conflicts of interests exist in the interests of the exercise of copyright.The balance of interests under conflict determines the timing and extent of criminal intervention,and the system design and development changes of copyright also revolve around the basic principle of balance of interests.Under the national intellectual property right protection strategy,the balance of interests in the criminal law protection of network copyright has integrity and dynamics,and is adjusted with the adjustment of the national strategy.China has become a big country with intellectual property rights.The protection strategy of intellectual property rights has been shifted from "weak" protection to "strong" protection,and strengthening criminal law protection of network copyright is an inevitable choice after balancing interests.The criminal law protection of network copyright should be strengthened in the context of balance of interests for balancing the interests of the copyright subject or restraining infringement of network copyright crime or implementing the national strategy for the protection of intellectual property rights.The fourth chapter clarifies the subject of crime and type of crime within the scope of the actor who infringes the network copyright.Any crime is human crime.Therefore,it is impossible not to investigate the criminal behavior of infringing network copyright.Therefore,the study and discussion of the crime of infringement of network copyright can not be separated from an investigation of criminals.There are three types of people involved in the crime of infringing Internet copyright.One is the person who uploads the content of the network information;which is most likely to become the criminal subject of infringement of network copyright.Another is the person who provides network service for the information dissemination.Network service providers not only provide hardware service for the network dissemination of information,also provides software services to network dissemination of information,to provide advertising services to help,which may become the subject of the crime of infringement of copyright.The other is the end user who receives and eventually uses the network information.The end-user who receives and uses the network information eventually may become a criminal subject who infringes the network copyright under certain conditions.The fifth chapter,crime patterns and results of infringement of network copyright crime.First of all,there is no action no crime.Infringement of network copyright action which is regulated by criminal law is unauthorized implementation of information network dissemination without permission,so the identification of infringement of network copyright crime must be based on the definition of information network communication action.Secondly,the criminal protection of the traditional copyright focuses on the proper exercise of the right of reproduction and distribution,and the criminal protection of network copyright lies in regulating the proper exercise of the right of dissemination of information network.Unauthorized implementation of information network dissemination,including acts of direct infringement of network copyright,assistance,inducement and solicitation,and subsequent assistance in the expansion of infringement damage.The act of providing content and the infringement of network copyright by P2 P users are typical practices,and the action of avoiding technical protective measures is a typical helping action.The action of video sharing websites,WAP transcoding,infringing action,action of providing web snapshot and deep linking may be either perpetrating action or help action.In addition to video sharing sites,violations are violations of search engines,Therefore,To be sure that the action is an act of practice or a helping act,we should follow whether to replace the third party website content as a judgment of the general principles,specific from three aspects of judgment: one is the works needs authorization;then whether the works is processed or edited;and,the third,whether the works is permanently copied.Finally,according to the quantity to determine the quality of the law,the accurate use of the article 217 of criminal law to draw the boundaries of crime,the article 217 of criminal law mainly the amount of illegal income as a measure of the extent of crime infringement.This provision is operational,but it can only indirectly reflect the extent of violations of legal interests,and the "serious circumstance",which emphasizes the objective harm degree,can make up for the lack of legislation.The sixth chapter,the subjective elements of infringement of network copyright crime.One of the focus and hot issues is being discussed in the criminal law protection of copyright,which is whether retaining or abolishing "for the purpose of reaping profits".The abolish theory is able to the full protection of network copyright by criminal law,but the excessive expansion of criminal circle may lead to excessive protection of copyright in the traditional realistic environment.The explanation of the expansion of "reaping profits" of the reserve theory can not realize the full protection of network copyright by criminal law,and narrow thecircle of crime.The compromise theory makes the distinction between the reality and the network environment of the protection of copyright by criminal law,and makes a distinction between them,but there are two constitutions to one crime.The heavier or aggravating circumstance of sentencing theory that regulates the action of infringement copyright not only expands excessively the criminal circle but also increases the punishment strength excessively.Therefore,we need to find a new way,and set specific subjective elements for the reality space and cyber space to achieve the full protection of network copyright by criminal law.Conclusion,the establishment of new crime is the direction of the criminal law protection network copyright.One article is added after article 217 of the Criminal Law:“crime of infringement of network copyright is act of the Serious circumstances and public communication through information network another part's written,musical,movie,televised,arts,Photographic,and video works,sound or video works,computer software,and other works without the permission of their copyrighters.”...