A Research on Criminal Protection of Copyright
|School||East China University of Political Science|
|Keywords||Crime against copyright Criminal Protection Analysis and Perfection|
With economic globalization and the In-depth development of knowledge-based economy, copyright, as an important powerhouse for national and world economic development, had its statue significantly improved in the world economy, technology and trade. Intellectual property rights (IPR), including copyright are increasingly becoming a critical strategic resource for national and international competitiveness progress, as well as an important support for the construction of an innovative country. After years of development, China’s IPR legal system has been gradually established and perfected, the establishment and implementation of which has been effectively regulating the market order, protecting scientific inventions and cultural creations, thus has played vital role in the development of economy and society. However, on the whole, China’s intellectual property system still needs to be improved, at the same time; infringement of intellectual property is prominent, which weakens the due influence of the IPR system on China’s economic and social development. Therefore, our party’s 17th congress clearly stated the requirement to implement“Intellectual Property Strategy". The State Council on June 5, 2008, issued the "Outline of National Intellectual Property Strategy" and made a decision to implement the national IPR strategy. Without protecting intellectual property rights that includes copyright, we will not be able to build an innovative country or enhance independent innovation capability, especially at the moment when, with the further development of economic globalization and technological progress, copyright protection, one of the basic intellectual property laws that motivate and protect innovation, promote economic and social development, plays an increasingly prominent role.Through 30 years of reform and opening up, China provides a full scope of judicial protection of copyright by civil, administrative and criminal trials. The domestic legislation is being gradually improved in terms of criminal protection. The 1979 "Criminal Law" does not address copyright infringement. The 1997 "Criminal Law" clearly addresses the crime of copyright infringement and the crime of sale of infringing copies. Amended "Copyright Law" in 2001 adds provisions of criminal responsibility related to criminal copyright infringement. From 1998 to 2010, four important judicial interpretations have been issued to clarify specific criteria to measure copyright infringement. China has participated the international integration by joining several important international conventions.The legislation of criminal protection for copyright has been developed and completed from scratch, along with which related academic research has been vigorously carried out. Academia’s extensive research on the basic theories, crime constitution, and penalty applies, and legislation perfection of copyright infringement crime enables a mutual promotion between academic research and legislative and judicial practice. However, there are still many problems that need to be further discussed. In this context, this paper, based on previous research results of the criminal protection of copyright, carries out a comprehensive and systematic step further to explore the research path and the structure of system, to analyze and investigate a number of important related issues. This study has its comparative advantages both on theoretical meanings and practical values.This paper is divided into seven chapters, the contents of which are summarized as follows:Chapter One: the theoretical basis for criminal protection of copyright. This part mainly emphasized concepts that should be established for criminal protection of copyright legislation and judicial practice, by analyzing the relation between public and private rights, between internationalization and localization, between weak protection and strong protection.Copyright is private rights with a strong public character, but that does not change the nature of this private right. Judging from criminal law development and substantive right point of view, criminal protection of copyright has its legitimacy. The protection of private rights and public interest are indispensable and mutually reinforcing, but with the development of market economy today, rights-priority highlights the private rights protection, which favors the effective protection of copyright. This value will also guide to a stronger legislative and judicial attention on protecting victims’legal interests. The internationalization of criminal protection of copyright is an inevitable trend, but at the same time, it should also meet the requirements of localization, the two of which can be balanced by determining an appropriate level of criminal protection of copyright that compliant with the minimum basis of international standards. Domestic Criminal copyright protection strategy should take the form of strong protection on determining crime circle in order to maximize the scope of criminal protection, strengthen the criminalization of serious violations and the internalization of copyright protection. On the other hand, penalties should take the form of weak protection strategy in order to promote an economical concept of penalty modesty and keep the direction of light punishment and non-criminalization. Meanwhile, this chapter also put emphasis on the coordinative coherence between civil law system, the administrative law system and the criminal justice system toward copyright protection.Chapter Two: the necessity and urgency for criminal protection of copyright. This chapter illustrates this point mainly from the perspectives of copyright development history, domestic reality, and the requirements of international development.From the history of copyright system, we can see that with the advancement of technology, economic and society, copyright protection has been on its way to internationalization by constantly expanding the unit, scope, and content of copyright protection and breaking through the geological restraint. Means of copyright protection has also been further enriched. In addition to civil protection and administrative protection, criminal protection now has been greatly valued, which makes it a certain choice when comes to national copyright legislation. Domestically, criminal copyright infringement not only shows a gradual growth, but also presents new features in its criminal means, the object and the subject of crime, social harm and other aspects. Internationally, to strengthen the criminal protection of copyright meets the needs of both economic globalization and fulfillment of China’s international obligations. Based on international pressure and our own development needs, using the criminal law to protect the copyright become an inevitable choice, while how to protect copyright through criminal justice must adapt to a country’s basic state and actual needs, which means simply lower the criminal threshold is not the best choice.Chapter Three: investigation and comments about contemporary criminal protection of copyright. This part makes comparative analysis on the difference and similarities of criminal protection of copyright in Britain-US Legal System, Continental Legal System, Hong Kong-Macao-Taiwan laws and International Conventions, intending to draw on the enlightenment for our nation.Inspired from the comparison, we believe criminal protection of copyright can play its greatest effect only when it is appropriate to the nation’s actual conditions. Therefore, the scope of protection can be gradually expanded according to actual needs. When determining the establishment of a crime, circumstance and amount of crime should be provided, but subject intention can be prior to profit orientation. Punishment should fit with the scope of protection, according to which punishment against qualifications can be applied to improve victim assistance system.Chapter Four: The actual status and shortcomings of China’s criminal protection of copyright and its legislation. This part mainly conducts a historical review and current status and shortcoming analysis in order to provide reality basis for perfection of legislation.Criminal protection of copyright has been gradually improved since 1990 years. The major laws that related to criminal protection of copyright are "Criminal Law" in 1997, the revised "Copyright Law ", and Four Judicial Interpretation that independently or joint promulgated by the Supreme People’s Court, Supreme People’s Procuratorate and Ministry of Public Security. But a series of shortcomings exist and definitely need to be improved in legislative mode, target criminal confirmation, protection scope, criminal behavior, offense constitution, the penalty allocation and financial compensation to victims.Chapter Five: Comments and analysis on China’s judicial practice of criminal protection of copyright (Part 1)– Comments and analysis on dispute of special constitutive elements of copyright infringement. This part mainly discusses major controversial issues on special constitutive elements of the crime of copyright infringement and the crime of sales of infringing good, in order to clarify the identification of copyright infringement during judicial practice.Interpretation of“other work”referred to as criminal object of copyright infringement had better not be amplified. Database is not included in“other works”as criminal object.“Unauthorized”includes four conditions, "to reproduce and distribute" includes copying, distribution or the behavior of both, while the behavior of“renting”should not be defined as distribution. Clear criteria should be determined in order to identify illegal gains. The amount of crimes committed by units and individuals can apply the same standard.Chapter Six: Comments and analysis on China’s judicial practice of criminal protection of copyright (Part 2)– Comments and analysis on common issues in criminal justice of copyright infringement. This part mainly analyzes the identification of crime and non-crime, this crime and other crimes, special form, the form of quantity of crime. At the same time, this part also analyzes the identification of copyright network crime and application of criminal protection of copyright procedure.Proper use of the works of others is neither an infringement, nor a crime. The distinction between criminal offense and tort lies in whether it is profit-intended subjectively and it meets convicted standard objectively. In order to distinguish it from the administrative violation, whether or not the behavior is harmful to public interest and its severity will be taken into consideration. Criminal copyright infringement can be differentiated from related crime judging from special constitutive elements of crime. In the patterns of crime, unfinished form of copyright infringement can be existed. Mutual intent is the key factor to identify joint offense. The form of quantity of crime should be recognized according to specific circumstances. Network crime of copyright infringement needs to be clearly defined and regulated. In proceedings, priority to private prosecution better protects the interests of copyright owner. As for onus probandi, on some conditioned occasions, defendant bears the responsibility of providing evidence.Chapter Seven: Perfection of Criminal Protection of Copyright Legislation in China. Based on former researches, this part mainly explores the direction of how to perfect criminal protection of copyright in China.In the matter of legislative mode, criminal law code and subsidiary criminal law can be applied compliantly. To constitute a crime, the abolition of determination of target criminal is necessary. In the matter of crime behavior, coherence with copyright law, equal protection of works that are included in copyright law, strengthening the protection of copyright owner’s personal right, perfection of conviction all need to be taken into consideration. In the matter of penal system, we should appropriately adjust punishment range, improve the penalty of criminal fine, add qualification penalty. In the matter of mechanism, improve victims redressing mechanism and civil-criminal relation handling mechanism.