Research On The Difficult Application Of Copyright Infringement Crime Under The Internet Perspective

With the development of society and the progress of science and technology,traditional works have been digitized.Network communication has become a necessary means to realize the copyright rights and interests of works,and the right of information network communication is gradually becoming the exclusive right of copyright owners.At the same time,the network crime ensued,network technical virtual space to provide a new stage for cyber crime,a new type of crime emerges in endlessly,via the Internet copyright infringement others behavior not only make the legitimate rights and interests of the copyright owner has suffered losses,but also seriously disturb the order of the intellectual property management.Article 217 of the original Criminal Law is revised in The Amendment to criminal Law(XI),and the act of disseminating works to the public through information network is formally included in the provisions of criminal law.However,in the Internet environment,the constitutive elements of this crime still need to be further clarified.The deep link behavior involving the right of information network communication has great controversy on how to connect the criminal law rules.The key to judge whether the deep link behavior belongs to the implementation of the crime of infringing copyright is whether it has the characteristics of providing works.The deep link can enable the public to browse the linked website works directly.It can be identified as "communication to the public through information networks".Copying the source program of game software in the process of making game plugins is essentially a "copying" behavior of infringing copyright.Therefore,making and selling plugins should be considered as constituting a crime of infringing copyright.At the same time,the Interpretation of the Two High courts in 2004 and the Opinions of the Two High Courts and the Ministry of Public Security in 2011 expanded the interpretation of the crime of "profit-oriented",and responded to the crime of infringing copyright in the network environment by including "indirect profit-oriented" mode into the scope of "profit-oriented".By expanding the interpretation,we can effectively regulate the behaviors that destroy the order of socialist market economy.The cancellation of this subjective element will improperly expand the scope of punishment of criminal law,resulting in the imbalance between the interests of the right holder and the public interests.Therefore,the subjective element of "profit-seeking" should be retained,and the subjective intention of the perpetrator should be presumed.When determining the criminal responsibility of the neutral helping behavior of Internet service providers,we should consider the distinction between value-added services and basic services,and determine their criminal responsibility according to the different obligations of network content service providers and network technology service providers.