On The Crime Of Copyright Infringement

Criminal protection for copyright has received unprecedented attention all over the world, especially in the western developed countries as well as in Hong Kong, Macao and Taiwan of China in which copyright is effectively protected and a healthy criminal protection system is developed by its perfect theoretical system and strict, normative practical operation. But in Mainland China, criminal protection for copyright starts relatively late, and a great deal of problems remains to be solved both in theory and in practice. Therefore, summarizing the legislation survey of criminal protection for copyright in China and studying the features of it in developed countries and areas are the logical starting point for improving the system of criminal protection for copyright, but distinguishing between the crime against copyright and other related crimes and identifying them are the focal point of the thesis.The whole thesis consists of five parts :Part one is the introduction to the crime against copyright. In this part, the author firstly discusses the concept of the crime, analyzes the advantages and disadvantages of several representative concepts of it in China and puts forward a new view ; secondly, the author emphasizes the important role which criminal protection for copyright plays in technology progress, cultural prosperity and international exchange in China; and last, the author briefly reviews the legislative evolution of legal protection.Part two compares the different legislation on the crime against copyright. It mainly studies the developed countries such as America, Japan, Britain, France, Germany and Italy as well as Hong Kong, Macao and Taiwan of China in terms of the current situation and features of criminal protection for copyright, and based on that a comparison between developed countries and areas and China with regard to it is made with a conclusion drawn as the below:The legislative mode in China is too simple, which, the function of accessory criminal law is not fully performed; the scope of copyright protection provided in the Copyright Law is too limited, which only protects the four acts regulated by article 217 of the Criminal Law ; in respect of the jural rights protection, the property and personal rights of the copyright owner do not get equal protection under the Copyright Law ; the setting of crime is too simple, the Copyright Law only sets the crime against copyright and the crime of selling infringed reproductions, which obviouslyis favorable for copyright protection.Part three is concerned with the constructive features of the crime against copyright, Firstly, the author points out that the criminal object of the crime against copyright is copyright and other related rights enjoyed by others according to the law; secondly, the author introduces four aspects of the objective features and explains the related terms such as 'copyright owner', 'permission', 'reproducing and distributing', as well as 'producing and selling'; thirdly, the author presents the criminal subject including individuals and units; and finally, the author mainly elaborates whether the crime against copyright is subjectively for lucrative purpose and reaches a conclusion by analyzing two contrary views that the crime must be subjectively for lucrative purpose .Part four deals with the judicial identification of the crime against copyright, which is the key part of the thesis.Firstly, this part distinguishes the crime against copyright from lawful acts. In some cases, a person, according to the Copyright Law, can make use of the works without the permission of the copyright owner , which seems illegal but actually is a special provision in the law. Secondly, it makes a distinction between the crime and the general tort. Although eight acts are considered as illegal and four of them shall be punished by criminal law under article 47 of the Copyright Law, the special law should be applied to these acts in view of the principle of the special law prior to the general law and the economical principle of criminal law, therefore, they are only general acts of tort and should be subject to administrative punishment and civil sanction rather than to criminal punishment. Thirdly, a criterion is established in this part for differentiating the crime against copyright from the one similar to it. The distinction between the former and the latter is so complicated that they often mix up with each other in practice, in general, they can be distinguished by the following aspects: the subjective aspects of crime, the object of act, the way of act, the amount of illegal gains and the illegal acts; Last, this part makes a further distinction between the crime against copyright and various crimes similar to it. The difference between the crime against copyright and the crime of selling infringed reproductions lies in whether the actor performs the two acts of 'reproducing' and 'distributing' and if the actor only performs the latter act, he commits the crime of selling infringed reproductions; the distinction between the crime against copyright and the crime of producing, reproducing, publishing, selling and disseminating obscene materials is that the object of crime is different: the object of the former is the country's protection and management order of copyright as well as the copyright and neighboring rights enjoyed by the copyright owner and the object of the latter is the country's management activities of culture market and social moral fashion, in addition, they differ in the target of criminal offence and the way of act; the critical difference between the crime against copyright and the crime of fraud lies in differing objects of crime: the object of the crime of fraud is simple, which refers to the ownership of public and private property; whereas the object of the crime against copyright is complex, which includes the country's protection and management order of copyright as well as the copyright and neighboring rights enjoyed by the copyright owner.The last part is some legislative suggestions about the crime against copyright. In view that the current criminal protection for copyright in China is imperfect, some suggestions are put forward by using the successful experience of the western developed countries as well as Hong Kong, Macao and Taiwan of China for reference and considering the reality of copyright protection in China. The suggestions are stated as follows: for the objective aspects of the crime, more charge creations should be made, which should include the crime of illegally renting infringed reproductions and the crime against the personal right of the copyright owner; in terms of the legislative mode, a mode combining the Criminal Code with the Copyright Law should be established, fully performing the function of the accessory criminal law; as for the litigation procedure, it should establish a mode that private prosecution is in a dominant position supplementing with public prosecution; with respect to the setting of criminal punishment, freedom punishment should be reduced and fine punishment as well as qualification penalty should be improved.