Prosecution and Defense - A Practical Guide to Criminal Protection and Prosecution of Copyright
Author | Intellectual Property Center, Lawyer Wang Qionghua
Introduction
The criminal protection of copyright in international treaties has undergone a journey from scratch and from simplicity to complexity. For example, as the earliest, most important and most influential multilateral treaty in the field of international copyright law, the Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as the "Berne Convention") does not directly stipulate the criminal liability provisions for copyright infringement; the subsequent Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as "TRIPS") specifically set up criminal procedures; in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which came into effect on December 30, 2018, the criminal liability provisions for copyright-related crimes are standard High-quality, comprehensive, and stronger protection than TRIPS and other agreements.
In short, the international community's use of criminal means to protect copyright has become an inevitable trend of copyright protection.
In practice, more and more rights holders have chosen criminal prosecution to protect their rights. According to relevant data, the number of copyright infringement cases has shown a certain growth trend in recent years. For example, in 2021, the national procuratorial organs prosecuted 297 cases of copyright infringement and 679 people, accounting for 4.8% of the total number of intellectual property criminal cases prosecuted; in 2022, the national procuratorial organs prosecuted 322 cases of copyright infringement and 776 people, accounting for 5.9% of the total number of intellectual property criminal cases prosecuted.
[1] According to the "Main Case Handling Data of National Procuratorial Organs from January to September 2023" issued by the Supreme People's Procuratorate, from January to September 2023, the national procuratorial organs accepted the review and prosecution of 22,000 intellectual property infringement crimes, an increase of 49.7% year-on-year. The crimes involved in the review and prosecution cases were mainly trademark infringement crimes, with a total of more than 17,000 people; copyright infringement crimes and trade secret violations increased significantly, with more than 2,000 people and 260 people respectively, an increase of 1.95 times and 1 times year-on-year respectively.
[2]
More and more rights holders choose criminal prosecution to protect their rights, but due to the high professional barriers in both intellectual property and criminal fields, it highlights the scarcity and preciousness of professional lawyers in the intersection of intellectual property rights, criminal and civil. This series of articles combines the author's 13 years of practical experience in handling intellectual property and criminal cases, sorts out and summarizes the practical guide of copyright criminal cases and shares it with readers, hoping that readers will gain something and not hesitate to correct it. Welcome to contact the author for exchange and discussion.
I. Current situation and trend of copyright criminal legislation in our country
From the perspective of our country's legislative system, in response to the legal issues of copyright crimes, criminal responsibility has been established first through the relevant provisions of the Copyright Law, followed by Article 217 of the Criminal Law, which stipulates the crime of copyright infringement, Article 218, which stipulates the crime of selling infringing copies, and finally through judicial interpretations. See the table below for details on the current legislation and trends of copyright crimes in our country.
Since 2004, in response to handling criminal cases of intellectual property infringement, the Supreme People's Court, the Supreme People's Procuratorate, and other relevant departments have successively issued judicial interpretations such as Interpretation (1), Interpretation (2), and Interpretation (3), which constitute the current judicial interpretation of intellectual property criminal cases.
It is worth noting that on January 18, 2023, the Supreme People's Court and the Supreme People's Procuratorate issued the "Exposure Draft" on Several Issues Concerning the Application of Law in Handling Criminal Cases of Intellectual Property Infringement. After the implementation of the new interpretation, the aforementioned three judicial interpretations will be repealed simultaneously.
II. Elements of the crime of copyright infringement
As shown in the figure above, Article 217 of the Criminal Law makes specific provisions on the concept, constituent elements and sentencing standards of the crime of copyright infringement. It can be understood from the following four aspects:
1. Subjectively, most international trade agreements stipulate the key elements of crime and non-crime as "intention" and "commercial scale" respectively. In our country's criminal law, when describing the subjective aspect of intellectual property crimes, "knowing" is generally used to express subjective intention.
But there are exceptions. In addition to "intentional", our country's criminal law also takes "for profit" as a subjective element in the crime of copyright infringement. Therefore, in the context of our country's criminal law, not only does it have "intentional" subjectively, but it must also have "for profit". The combination of the two constitutes the subjective element of the crime of copyright infringement.
[3]
2. Objectively, it is manifested in the six situations listed in Article 217 of the Criminal Law. It should be noted that the above six situations that constitute copyright infringement crimes are not completely consistent with the copyright infringement acts stipulated in Article 53 of the Copyright Law.
3. Object: The object of infringement is a complex object, that is, the copyright of the copyright owner to his work and the state's management order of the cultural market. The object of this crime is copyright, which includes the personal rights and property rights of the work.
4. Subject: The subject of copyright infringement is a general subject, including natural persons who have reached the age of criminal responsibility and have the capacity for criminal responsibility, as well as legal persons and unincorporated organizations.
III. Prosecution standards for copyright infringement
Article 5 of the Interpretation (1), Article 1 of the Interpretation (2), and Article 13 of the Opinions provide specific judicial interpretations for the illegal income or other serious circumstances stipulated in Article 217 of the Criminal Law. For "the amount of illegal income is relatively large", it is only stipulated in the Interpretation, that is, the amount of illegal income is more than 30,000 yuan; for "other serious circumstances", the Interpretation (1), Interpretation (2), and the Opinions respectively provide for different circumstances, as detailed in the table below.
It is worth noting that for the reproduction and distribution of written works, music, films, television, video works, computer software and other works without the permission of the copyright owner, the number of reproductions is different. The number stipulated in the 2004 Interpretation (1) is one thousand (copies), and the number stipulated in the 2007 Interpretation (2) is five hundred (copies).
Although the two judicial interpretations are currently valid provisions, they are generally identified in accordance with 500 sheets (copies) in judicial practice. In addition, the number determined in the "Exposure Draft on Several Issues Concerning the Application of Law in Handling Criminal Cases of Intellectual Property Infringement" issued by the two highs in 20
23is also 500 sheets (copies).
As mentioned earlier, in the context of our country's criminal law, the subjective element must not only have "intention" but also have "profit-making". It is worth mentioning that, with regard to the prosecution standard for copyright infringement crimes, compared with the current rules, the "Exposure Draft" also deleted "profit-making".
This is because after our country joined international conventions such as CPTPP, in order to better connect with international treaties, our country's criminal legislation in the field of copyright should also respond to relevant international treaties. With the entry into force of the "Criminal Law Amendment (11) ", the "Exposure Draft" also needs to be adjusted accordingly.
This indicates that "for profit" will no longer be the subjective element in the constituent elements of copyright crimes in the future. Regarding the prosecution standards for copyright infringement crimes, the "Exposure Draft" and the current rules are as follows.
IV. Jurisdiction
Criminal cases of intellectual property infringement shall be filed and investigated by the public security organ at the place where the crime was committed. When necessary, the public security organ at the place where the alleged offender resides may file and investigate.
On September 1, 2020, the Ministry of Public Security promulgated the "Regulations on the Jurisdiction and Division of Criminal Cases of the Ministry of Public Security" Article 7 The scope of cases under the jurisdiction of the Food and Drug Crime Investigation Bureau (a total of 33 types) (1) The following cases in the crime of disrupting the socialist market economic order in Chapter 3 of the Criminal Law: 14. Copyright infringement cases (Article 217) 15. Sales of infringing copies (Article 218), it can be seen that copyright infringement and other intellectual property rights crimes have been changed to be under the jurisdiction of the Food and Drug Crime Investigation Bureau.
According to the distribution of intellectual property advantage enterprises in Shenzhen and the actual needs of handling cases, intellectual property infringement cases are handled by the Food and Drug and Environmental Crime Investigation Detachment of Shenzhen Public Security Bureau, which is responsible for business guidance and case supervision. Each branch investigates according to its territorial jurisdiction. Major difficult cases are jointly investigated by the Food and Drug Environmental Investigation Detachment.
Regarding the jurisdiction and handling rules of intellectual property infringement crimes committed by different alleged offenders and criminal gangs across regions involving the manufacture, storage, transportation, and sale of the same batch of infringing products, the relevant provisions of Article 1 of the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Intellectual Property Infringement on the jurisdiction of criminal cases of intellectual property infringement may be referred to.
V. Guidelines for reporting cases
(1) Evidence materials of copyright rights
1. The reporting party shall submit evidence of copyright rights to prove that the reporting party is the subject of copyright rights, such as providing original manuscripts, originals, legal publication copyright registration certificates, certificates issued by certification bodies, contracts for obtaining rights, film and television works titles, previously launched APPs, work drafts, software development documents, etc.
2. Unauthorized proof, whether the alleged offender is authorized to use or has authorized others to use, the content and scope of the authorization, and whether it includes sub-authorization.
(2) Evidence materials for infringement
The complainant shall submit evidence of the alleged infringer's infringement to prove that the copyright requested for protection has been infringed, such as purchasing the actual carrier of the infringed object, such as books, CDs, USB disks, and other physical objects, as well as purchasing records or purchasing notarized web pages.
(III) Evidence of loss
The informant shall provide relevant evidence materials to prove his own losses, such as the amount of illegal business operations, the amount of illegal income, the number of replicas, and the amount of replicas.
The reporter may entrust a legally qualified appraisal agency to conduct the following appraisals on specialized matters:
(Iv) Identification
1. Identification of whether the work is original.
2. Identification of the identity of the accused infringing work and the right holder's work, etc.
[1] Song Jianjian: "Trends and Practical Thoughts on Criminal Protection of Copyright", published in "China Applied Law", No. 4, 2023.
[2] The main case handling data of the national procuratorial organs, https://www.spp.gov.cn/spp/xwfbh/wsfbt/202310/t20231025_631714.shtml#2
[3] Song Jianjian: "Trends and Practical Thoughts on Copyright Criminal Protection", published in "China Applied Law", No. 4, 2023.
Lawyer Profile
Lawyer Wang Qionghua
, Partner Lawyer
Secretary General, Copyright Law Professional Committee of Shenzhen Law Association
Secretary General of Zhiheng Intellectual Property Center, Deputy Director of Copyright Committee
Areas of expertise:
Intellectual property compliance, intellectual property cross-protection and defense
Emerging frontier technology comprehensive legal services
Civil and commercial litigation, arbitration, corporate legal counsel
Publication representative:
"Long'an Lawyers Interpretation of the Civil Code" Contract Compilation
"Internet Law Course"
Anti-Monopoly Lawyer Practice for Mergers and Acquisitions in China
Contact information:
Center Profile
Intellectual Property Center
Objective of Zhiheng Intellectual Property Center: To build a first-class intellectual property legal service center.
The Intellectual Property Center has a complete set of specialized intellectual property departments such as patents, trademarks, copyrights, trade secrets, rights protection, international, layout analysis, and operation transactions, forming a complete industrial chain from basic applications, planning and layout, risk prevention and control, anti-counterfeiting rights protection, operation transactions, and international protection.
The Intellectual Property Center is led by a team of first-class intellectual property experts, with a complete service process and an integrated service system. It provides professional legal advice and solutions in various fields of global intellectual property, striving to ensure that every case and project can receive the best solutions developed by experts, so that customers can experience the most rigorous and professional services.
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