The Study Of Network Copyright’s Criminal Protection

The innovation of works’ transmission mode driven by the popularity and developments not only promotes knowledge sharing in our society,but also brings about great challenges for the protection of copyright.Compared with the traditional copyright crime,the network copyright crime has more diverse criminal means and more harmful consequences.And the difficulty that the criminal subject commits is also reduced.Currently,The Criminal Law of the People’s Republic of China does not specially respond to the network copyright crime under the era of strong protection strategy of intellectual property,which makes the criminal protection of network copyright can not meet the needs of striking crimes.Based on the preceding situation,this paper manages to give practicable advice on the rational expansion of network copyright’s criminal protection by analyzing problems and their causes existing in legislation and judicial practice.The methods adopted in this paper include the empirical analysis,the normative analysis,the literature research and the comparative study.Besides the introduction part,there are four parts in this paper.In the part of current situation analysis,this paper firstly defines the connotation of the network copyright crime.And then this paper empirically analyzes 96 criminal judgments concerning network copyright crime,concluding that the network copyright crime in recent 5 years has the following features:popularization of the criminal subject,changeable mode of criminal behavior,more harmful consequences and relatively concentrated venue of action.Based on this,this paper further demonstrates the necessity of strengthening the criminal protection of network copyright.In the part of legislation study,this paper firstly concludes the current situation of the criminal protection of network copyright,and accordingly analyzes its problems in legislation.On the one hand,types of behavior prescribed in The Criminal Law of the People’s Republic of China are limited,for behaviors of disseminating works through network and destroying technological protection measures are not specially regulated.On the other hand,the setting of "purpose for profit" in subjective elements is not rational,which limits the crime circle the criminal law strikes and unreasonably increases the judiciary’s difficulty of proof.Finally,this paper attempts to analyze causes of these problems from the aspects of the rapid intergenerational change of digital network technology and the process of the criminal law’s intervention.In the part of practical predicament,this paper firstly analyzes the difficulty of the crime of selling unauthorized duplicates in application caused by the unduly extended meaning of public issuance and the absent proof standard of conviction in judicial interpretations.Secondly,this paper also pays attention to selective application phenomena of sentencing standards in judicial practice,which relate to absence of sentencing guidelines and impractical new standards of cognizing circumstances.In the part of perfection,this paper puts forward countermeasures respectively from perspectives of principles that should be followed,legislation and judicial practice.Firstly,the criminal protection of network copyright should follow principles of compress and modesty and balance of interests.Secondly,the crime of infringing network copyright shall be newly established to particularly regulate network copyright crime.In order to establish such new crime,the crime and punishment structure of network copyright crime shall be reset,including resetting types of behavior in The Criminal Law of the People’s Republic of China,abolishing the setting of "purpose for profit" in subjective elements,abandoning the application of the crime of selling unauthorized duplicates in digital network environment and setting up a new standard of cognizing circumstances of right holders’ loss.Thirdly,as to selective application phenomena of sentencing standards in judicial practice,this paper holds that the judiciary in principle should apply to the standards of cognizing circumstances with a more severe punishment.Besides,this paper also manages to give specific suggestions on the standards of cognizing circumstances in optimum application.