By Luo Yanjie
In recent, a man was judged the crime of copyright infringement (note: the link is in Chinese) by Ningbo Beilun People’s Court for his selling the pirated discs. Yet, to our understanding, the crime of selling infringing work copies provided in Article 218 of Criminal Law shall be more suitable, while as seen in this case, the criminal liability was established on the crime of copyright infringement which is in Article 217 of Criminal Law. The following is our analysis:
I. the difference between the crime of copyright infringement and selling infringing work copies
According to Article 217 of Criminal Law,the crime of copyright infringement shall refer to conducts:
“Whoever, for the purpose of reaping profits…copy and distribute written, video works; computer software; ”
And the crime of selling infringing work copies in Criminal Law shall mean:
“Whoever, for the purpose of reaping profits, knowingly sells the duplicate works described in Article 217 of this Law, and gains a huge amount of illicit income”
Judging from the aforesaid clauses, the main difference between the crimes is: the crime of copyright infringement pointing to both copy and distribution of works, while the crime of selling infringing work copies shall be the selling of knockoffs.
II. The existing judicial interpretation makes the crime of selling infringing copies a crime never be judged
As discussed above, the case introduced at the beginning of the essay shall be the crime of selling infringing copies, but the judge made by the court was the crime of copyright infringement, mainly basing on the “Interpretation on Several Issues concerning the Hearing of Criminal Cases of IPR Infringement, II”, which regulates that the “copy” and “distribute” in Article 217 shall be interpreted as “copy or distribute”, therefore any distribution of the knockoff shall also be judged as the crime of copyright infringement.
Moreover, in practices, the reason why courts more apply the crime of copyright infringement is the crime could be established when the amount involved in the copy or distribution has been more than 500 pieces, while to determine the crime of selling infringing copies, an illegal income of 50, 000 yuan shall be demanded. Considering the decreasing price of the knockoffs, the misconduct could hardly be judged crime of selling infringing copies while only 2000 articles have been detained.
But we tend to believe the difference shall lay on the behavior, once an infringer uses the equipment such as CD-ROM, DVD-ROM or BluRay-ROM for pirated discs making and then sells them, it shall be the crime of copyright infringement, yet the sole sale of pirated discs could also be the crime of selling infringing copies. In the case reported, we have seen no copying by the infringer, therefore, the decision by the court is arguable.
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