Research On The Crime Of Copyright Infringement

While the sword of the criminal law is essential to the protection of intellectual property, it's also vital to use it properly. And to use it properly, we must carefully study the crimes of infringement on intellectual property rights and must also demarcate the crime ring reasonably. This thesis gives a preliminary investigation of the crimes of copyright infringement from criminal and civil law angles.The thesis is divided into four chapters that discuss crimes of copyright infringement. The first chapter is a general overview of copyright infringement. It analyzes the impact of the legal characteristics of copyright on copyright's criminal law protection. Since copyright is an intangible property, we can't protect it in the conventional way. Conventional crimes of property violation such as robbery, theft, intentional destruction of property can't be used to punish the acts of copyright infringement. The duality of the copyright gives us a clear direction. While using criminal law to improve the protection of the copyright at the material aspect is important, we must improve the protection at the spiritual (moral) aspect step by step. Criminal law protection is based on the fact that the copyright is exclusive. The exclusivity of the copyright is limited by the civil law, so is the crime ring. Civil law sets time limits for the copyright. If the time limits expire, the copyright is no longer protected by civil law, not to mention criminal law. This chapter also introduces the legislative history of the crimes of copyright infringement and China's current legislation on the crimes of copyright infringement.The second chapter is about the constituent characteristics of the crimes of copyright infringement. In this chapter the author mainly analyzes the object of the crime, the objective aspect of the crime and the subjective aspect of crimes of copyright infringement in detail.Concerning the object of the crime, the author finds that the crimes of copyright infringement disrupt the Competition Order of the Socialist Market Economy and infringes on other people's copyright. To reach this conclusion, the author analyzed the chapters and sections of the Criminal Law, studied the specific provisions of the Criminal Law and combined Criminal Law with the copyright theory.Regarding the objective aspect of the crime, this thesis focuses on the conception of the words"copy (or duplicate) and distribute"and"amount of illicit income". In civil and administrative laws and regulations, the concept of"copy (or duplicate)"and the concept of"distribute"are mutually independent of each other. The concept of"sell"itself is a narrower concept than the concept of"distribute". In other words, the concept of"distribute"includes the concept of"sell". Although criminal law uses the same expression"copy (or duplicate) and distribute", the relationship between the concept of"copy (or duplicate)"and that of"distribute", and the specific content of the concept of"distribute"still has many doubts. In this thesis the author probes the origin of the expression"copy (or duplicate) and distribute"and the specific provisions of the criminal law thereof. The conclusion derived is that we should define the expression"copy (or duplicate) and distribute"to include acts of"copy (or duplicate)","distribute"and"copy (or duplicate) and distribute", the concept of"distribute"including"total issue"and"wholesale". In regard to the act of disseminating other's works to the public through information network, the Criminal Law itself doesn't provide specific provisions. Relevant judicial interpretations supposes that the act of disseminating other's works to the public through information network shall be deemed to be a"reproduction and distribution"as prescribed in Article 217 of the Criminal Law. These interpretations not only create a mismatch between Criminal Law and the Copyright Law, but also exceed their authority and violate the principle that Crimes and Punishments are all stipulated by Law. In this thesis the author presents two ways obeying the principle of those Crimes and Punishments are all stipulated by Law to solve this problem. One way is to define the concept of"copy (or duplicate) and distribute"including the act of disseminating other's works to the public through information network in the Criminal Law. In this way, we use the same expression in Criminal Law as that in Copyright Law, but with a different content. The other way is to regulate the act of disseminating other's works to the public through information network as a new and independent Act in the Criminal Law. In this way we can keep the Criminal Law coherent with Copyright Law. Literally,"amount of illicit income"should be comprehended as the difference between cost price and selling price. But the relevant judicial interpretations and some researchers in the academic circle don't agree with this interpretation. This divergence is not from the semantic itself, the divergence appears is because ruling the crime by the difference between cost price and selling price is not proper at all. We should amend the Criminal Law to replace"amount of illicit income"with"amount of proceeds arising from illegal business operations".On the subjective aspect of the crime, Criminal Law sets"for the purpose of reaping profits"as a subjective element of the crime. This faces four challenges that are about expanding of the scope of crimes, difficulty of collecting evidence to prove guilt, lack of consistency with international treaties and foreign law. In this thesis the author argues that the real challenge is expanding of the scope of crimes. In other words, as time changes, acts not committed"for the purpose of reaping profits"may come forward in great numbers. Although the players do not commit acts"for the purpose of reaping profits", these acts can gravely jeopardize the social order or seriously infringe on the legitimate rights and interests of a copyright holder or the holder of other intellectual property rights. It is therefore necessary for us to rely on criminal law to forbid these acts. However, to meet these challenges require more empirical studies and theoretical researches.The third chapter is about the identification of the crimes of copyright infringement. To distinguish between a crime and a non-crime, we should give careful consideration to regulations such as'Term of Protection'and'Limitations on Rights'as formulated in the Copyright Law. The author also discusses how to distinguish the crimes of copyright infringement from other crimes. The real difference between the crimes of copyright infringement and the crimes of selling infringing duplicates is the relationship between'distribute'and'sell'. In the author's opinion we should define the expression"copy (or duplicate) and distribute"including acts of"copy (or duplicate)","distribute"and"copy (or duplicate) and distribute", the concept of"distribute"including"total issue"and"wholesale". Distributing infringing duplicates in total issue or in wholesale commits the crimes of copyright infringement. Retailing infringing duplicates commits the crimes of selling infringing duplicates. Related to the acts of selling artistic works bearing fake signatures of others, the author thinks we should make decisions in accordance with specific conditions. In other words, they can commit the crimes of copyright infringement or the crimes of fraud in different situations. On the crimes of copyright infringement and the crimes of illegal business operations, the Criminal Law has set clear demarcations. These two crimes have different targets of crimes. If one commits acts of copyright infringement, he commits the crime of copyright infringement. If one doesn't commit acts of copyright infringement, he has an opportunity to commit the crime of illegal business operations. The immediate cause of using the crimes of illegal business operations to deal with acts of copyright infringement is that it's necessary to fit in with the needs of cracking down on piracy. But in the final analysis, the cause is that using"amount of illicit income"as criminal amount brings certain difficulties in determination of the crimes of copyright infringement.Chapter four is about improvement of legislation on the crimes of copyright infringement. The author provides that we should perfect our legislation in two aspects: legislative style and specific legal provisions on crimes and punishments. On legislative style, the author studies the realistic operation of judicial activities. In the end the author draws a conclusion that the legislative style operating the Criminal Law and the Copyright Law as a unit is more appropriate, it's easy and more feasible to operate. Consequently, it's important to keep Copyright Law coherent with the Criminal Law and to stick to the independent standards set by the Criminal Law. On the specific legal provisions about crimes and punishments, the author makes a summary in this thesis. The conclusions are: we should replace "amount of illicit income"with"amount of proceeds arising from illegal business operations"; we should replace"copy (or duplicate) and distribute"with"copy (or duplicate), total issue, wholesale"or define the expression"copy (or duplicate) and distribute"including acts of"copy (or duplicate)","distribute"and"copy (or duplicate) and distribute", the concept of"distribute"including"total issue"and"wholesale"; We should regulate the act of disseminating other's works to the public through information network as a new and independent criminal Act in Criminal Law. The author also put forward proposals to make infringing the spiritual aspect of the copyright and renting infringing duplicates offences.In addition, in the author's opinion we can divide all acts of copyright infringement into three levels, based on these division we can construct a new system to restrict acts of copyright infringement. The gem of this system is as follow: the first level tackles general acts of copyright infringement. We regulate these acts by civil laws such as the Copyright Law. The second level tackles acts that infringe on other people's copyright heavily but not disrupting the Competition Order of the Socialist Market Economy a great deal. We regulate these acts by setting new crimes and punishments in"Chapter IV Crimes of Infringing upon Citizens'Rights of the Person and Democratic Rights"and"Chapter V Crimes of Property Violation"of the Criminal Law. The object of the crime is other people's copyright. We can take the loss of the infringed as the criminal amount. The third level tackles acts that infringe on other people's copyright heavily and disrupt the Competition Order of the Socialist Market Economy a great deal. We regulate these acts by improving crimes and punishments in"Chapter III Crimes of disrupting the Order of Socialist Market Economy"of the Criminal Law. The object of the crime is the Competition Order of the Socialist Market Economy and other people's copyright. We can take the"amount of proceeds arising from illegal business operations"as the criminal amount.