| Legal protection of copyright is one of the international hot topics. In the legal protectionsystem of copyright, criminal law plays an important role in punishing serious acts ofinfringing copyright by its final destination and special toughness. The substances ofinfringing copyright crimes are relatively unclear, of which there are different understandingsin both theory and judicial practice, so it goes against the prevention and punishment ofcrimes of infringing upon copyright to take such amount as the circumstance for judgment.In the objective elements of the infringing copyright crimes, without prior permissionof the owner of the works should be judged the copyright owner accurately from the differentworks. The copying and publishing means that for the purpose of financial gain, theperpetrators without prior permission of the owners, copying, publishing or copy and issueother persons’ literal works, works of music, cinema, television, video recording and computersoftware and other works. Be copied out of works in the external form is consistent with theinfringed work originally external situation, does not affect the establishment of the crime.The connotation of "the amount of illegal gains" is relatively unclear, of which there aredifferent understandings in both theory and judicial practice, so it goes against the preventionand punishment of crimes of infringing upon copyright to take such amount as thecircumstance for judgment. The circumstance for conviction of the amount of illegal gainscannot scientifically illustrate the nature characteristics of infringing on copyright. It makesthe circumstances for convictions of crimes infringing on intellectual property of same natureor with similar acts non-identical to take the amount of illegal gains as the circumstance forconviction of crimes of infringing on copyright. Therefore, we suggest that the provisions of"the amount of illegal gains" for the above two crimes of copyright infringement should berevised as "if the volume of illegal operation is relatively large, the loss of the right ownerresulted from this crime is serious or there are other serious circumstances". We suggest thatit’s need to infringement of the economic loss caused to the holder of the reputation orderogatory as copyright infringement behavior of social harmfulness analysis of a standard orone of the important criterions for the conviction of the plot. In the subjective element of thecrime of infringement of copyright,"for purposes of financial gain" is included. This isagainst the relevant provisions of the infringing copyright crimes established in theInternational Conventions and Statues made by the majority of developed countries, neither isit consistent with the subjective element of other infringing copyright crimes of China’sCriminal Law. Whereas, we suggest the provision "for purposes of financial gain" must beeliminated and in return "intention" can be treated as the subjective guilt of infringingcopyright crimes.Infringing copyright crimes and selling pirated reproductions have competitionrelationships for issuance and sales relationship. In practice, the offenders implemented thecopyright infringement and saled, it is handled as a sin or combined punishment for severalcrimes, cannot be treated as one of the crimes, that should be distinguished between specific circumstances. For audio and video products license has been obtained to reproduce anddistribute to others to make sound recording or video recording or replica sale infringementbehavior is in accordance with the crime of infringement of copyright or sell infringingreproductions, and production, reproduction, publication, trafficking in, spread pornographicmaterials crime of profit difference is whether the protection sphere on copyright islegitimate. |
