Research On The Judicial Determination Of "Reproduction And Distribution" In The Crime Of Copyright Infringement

Analysis on the data of judicial cases of copyright infringement,the number of cyber crims and computer software crimes has increased year by year,the behavior of committing a crime is no longer limited to the low technical content of these pirated DVDS and books,but through the crawler,deep links and torrents and other technical means.This behavior has brought a lot of confusion to the judicial practice community,which has directly led to the lack of logical demonstration of the law of "copying and issuing" and the unclear determination of the facts in professional cases.Under the background of technological change,legislative activities’ slack in following up the construction of copyright system leads to endless judicial interpretations that may be offside.As an independent legal branch,criminal law can certainly be interpreted differently from other branches of law.Civil tort is the premise of copyright crime,so the crime of copyright infringement inevitably infringes on both the order of copyright management and the copyright.However,the criminal law only protects the order of copyright management,and the protection of copyright’s private right belongs to the protection category of civil law.The criterion of substantive similarity of reproduction varies according to the type of work.The method of overall observation is applicable to traditional characters and art works,while the method of abstract observation is applicable to computer software.The behavior of spreading through the information network is considered as "copying and issuing" to be reasonable,but not all the behavior of spreading through the information network can constitute "copying and issuing",so the crime and non-crime standards of such behavior should be grasped through the basic connotation of "copying and issuing".The denotation of "copying and distribution" is based on copying,that is,the execution of the crime includes independent copying and distribution on the premise of copying,and independent sales without copying constitutes the crime of selling infringing copies.Setting up private server and operating is a new form of "copy and distribute" in the network environment.The crime of illegal business operation and the crime of copyright infringement belong to the relationship between the general law and the special law,and should be convicted and punished according to the special law,that is,the crime of copyrightinfringement.The act of network content provider(ICP)illegally implementing hotlinking through technical means constitutes the crime of illegally obtaining computer system data,but does not constitute the crime of copyright infringement.Internet service providers(ISP)may provide infringing links to users by implementing common deep links,which may constitute indirect infringement and can be regulated by civil or administrative laws,but also cannot constitute copyright infringement.