Identification Of "Reproducing" In The Crime Of Copyright Infringement

Criminal protection is an important way to protect copyright.in infringement of copyright crime,one of the most important elements is to determine whether to constitute a copy or reproduce.the Reproducing in the crime of copyright infringement is based on the concept of civil protection,but it seems to have its particularity in the identification of specific cases.Based on Co.ShiMao v.Co.SuoDing computer software copyright dispute as an example(hereinafter referred to as SuoDing case),This paper analyzes how the infringement disputes of computer software constitute “the crime of copyright infringement”,and discusses The concept and relationship of “substantive similarity " “reproduction” and “reproducing".This article a total of thirty thousand words,divided into four parts.The first part introduces the basic case and the legal problem caused by it,that is,whether the same part of the source code can be regarded as substantive similarity,whether the work which are substantially similar to the earlier work can constitute a reproduction of criminal law in the form,how to identify the copy and How to distribute the burden of proof.The second part mainly discusses the substantive rules of the act of reproducing in the crime of copyright infringement.First introduced the "contact + substantive similarity" rules identifying the infringing reproductions in the crime of copyright infringement.Followed by comparing the infringing reproductions in the crime of copyright infringement with the reproductions in civil cases,that its characteristics and criterion are basically the same,But the using of the concept of substantive similarity in civil cases is more extensive.Therefore,substantially similar products in civil cases do not necessarily constitute reproduction,and in criminal cases they generally can constitute reproduction.This is the survivor bias effect caused by the restrictions of the copyright protection in criminal law and the particularity of the computer software.Finally,it demonstrates the rationality of applying the substantive similarity rule in the crime of copyright infringement from the need to deal with the new forms of crime,judicial practice,the purpose of criminal law and other aspects.In the third part,the article mainly discusses the procedural rules of the act of reproducing in the crime of copyright infringement.Firstly,it analyzes proven rules in the crime of copyright infringement.The public prosecution organ should bear the responsibility of proving the guilt of the defendant,and in the specific circumstances,the defendant could bear the burden of proof after the prosecution offered the preliminary evidence.on the standard of proof,identifying the crime of copyright infringement should reach the level of “Beyond a reasonable doubt”,need to prove the illegal reproducing and the alleged infringement works do not have their own originality;then,based on legal provisions and practical operation,constituting a crime can be Identified through violation of part of works.Finally,From the institutional and legal aspects demonstrate the possibility of applying the presumption in the criminal copyright infringement,and Summed up the "basic facts + norms-to verify the facts = presumption of fact" presumption of law.And take the computer software infringement case for example,enumerate some specific Presumption methods such as comparing the personalized information in source code.The fourth part puts forward ownsuggestionson the macro attitude towards the crime of copyright ofinfringement,and thinks that the plight of the SuoDing case reflects that the existing law needs rational interpretation and perfection,and the concept of judicial staff needs to be updated and changed.we should actively and cautiously deal with these more and more new types of crimes of intellectual property infringement.In the face of behavior constituting a crime to actively respond to play the Protective function of criminal law,while paying attention to the modesty of criminal law,seeking the balance of domestic legislation and international Protection,of personal interests and social interests,and of protection and restraint.