The Criminal Responsibility Of Copyright Infringement Of The Internet Service Provider

With the development of the network technology,the infringement and crime about the Internet has shown a high incidence,its manifestations are increasingly diverse.Among them,the provision of network services,such as search,link,P2P(peer-to-peer)and other network technology is more and more concerned,because on the Internet,among the dissemination of works,network services play an important role.The provision of network services promotes the rapid spread of the works in the network,at the same time,it also causes serious violations to the copyright of others.In the top ten innovative intellectual property cases of the Chinese court promulgated by the Supreme People’s Court in 2014,the case of Zhang’s violation of the copyright,leading to the discussion of issues related to copyright infringement in the field of the theory and judicial practice.The main focus of the discussion is whether the behavior of providing network service can constitute the crime of copyright infringement.If the offense of copyright infringement can be constituted,what is the nature of the behavior of providing network services,is it a help action,or is it can be characterized as the act of committing the crime of copyright infringement,and then constitutes the criminal offense of infringing the crime of copyright...In this regard,this article attempts to discuss the question of how to convict the behavior of providing network services on the basis of the theory and practice.Based on the behavior of providing network services,this paper is divided into the following three parts:The first part mainly elaborates the disputes on the behavior of providing network services,including the definition,the necessity of criminal intervention and so on.The behavior of providing network services mentioned in this article refers to the act of providing network intermediary service,mainly refers to the behavior which provides search,link,P2P(peer to peer)and other services.Compared with the behavior of directly uploading infringing works,the harm of these behaviors is often greater,and because of the low cost of infringement,we can not punish the behavior properly,so we need to regulate it according to the criminal law.There are two main views.One view is that the provider is complicity.Another view is that the behavior can directly constitute a crime of copyright infringement.The second part mainly analyzes the view that thinks the behavior is an action helping to commit the offense.According to the provisions of the civil domain on the right of information network communication,many people think that the behavior of communication refers to the behavior which directly provides the works,and the behavior of providing the network services does not directly provide works,and thus is not a direct information network communication behavior.Under the premise of regarding the behavior of providing the network services as the help action,in order to punish the act of providing network service,we need to apply to the common crime theory.Although it is theoretically possible to criminalize the provision of network service as a help offense and criminalize it,there are many difficulties in practice.Meanwhile,on the civil domain,there are some problems in regarding the behavior of providing the network services as the help action.In fact,the behavior of providing the network services can make the public obtain works at their selected time and location,in line with the essential characteristicof information network communication behavior.The third part mainly analyzes the view that thinks the behavior can directly constitute a crime of copyright infringement.According to China’s legislative situation,in China,although the legal offense has a dependency on the civil law,but it also relatively independent,it ultimately depends on the criminal law.Thus,in our country,the interpretation of the same language in legal offenses is relativistic and does not necessarily depend entirely on the preconditions.In the analysis of whether or not the act of providing the network services is direct information network communication behavior,it may not be necessary to rely entirely on the provisions of the civil domain,especially in the case where there are some problems in the civil.Network service provides a bridge between the network user and the structure of the work,which makes the unspecified network user can obtain the infringing works through the information network,so the behavior of providing the network services objectively plays an important role in the communication.Thus the behavior of providing the network services can be identified as communication behavior according to the criminal law.Regarding the behavior of providing the network services as communication behavior in the criminal law does not go beyond the scope of the interpretation of the meaning of the text,nor does it exceed the expectation of the national.In the judicial practice,the act of providing the network services is identified as the communication behavior,which can constitute infringement of copyright crime itself.Then we need to analyze how to determine the subjective knowledge of the network service provider.The crime of infringing the copyright is the act of infringing the copyright of another person without the permission of the copyright owner.The subjective aspect of the crime is intentional.In the judgment of whether the network service provider knows the infringement,we need to apply to thepresumption.We apply to the Red Flag Test in the civil,which means if the infringing fact is so obvious,just like a red flag,presuming that the actor is aware.When the facts of the infringement is quite obvious,from the rational person standard,it is entirely possible to presume that the network service provider is subjectively aware of the infringement,whether it is in the civil field or in the criminal field.Civil and criminal requirements for the subjective situation of the network service provider is different,civil contains intentional and negligence,the criminal is limited to intentional,but the situation for the negligence can be excluded by disproof,so the civil presumption can be directly applied to the criminal.When the defendant can produce evidence that he is not aware of the existence of infringement due to negligence or something,it is admitted.The civil presumption of the subjective can be applied directly to the criminal field.However,it is necessary to make some restriction on the application of the criminal presumption,in order to fully guarantee the defendant’s right.