(By You Yunting) You could find the vendors selling the pirated films, TV dramas, music or software in almost each single street in the cities of China. And according to the current regulation that the amount of the sales totaled 500 discs could be prosecuted for the criminal law violation, any vendors who has been selling the pirated discs for at least one month could constitute the crime of copyright infringement, and to be sent in to jail. Despite what the vendor has done may damage the IPR of the copyright holder, it is fair to combat them under the laws and regulations. But it seems that the existing judicial interpretation has a too wide governing scope, and could have damaged the purpose of the Criminal law. And in the practices, the vendors who have been prosecuted for their piracy selling could be less than 1% of all. Thus it has made the vendors do not care the punishment regulated in the criminal law, and that on the other hand has broken the principle “any violation against the criminal law shall be prosecuted and punished”, and thereafter it may promote the law enforcement upon the selection or the law enforcement in the political campaign or the rule of man. And the at the same time, it could harm the IPR protection.
I. The current criminal rules against the crimes concerning the disc piracy
We could find two crimes concerning with the disc piracy, namely the crime of copyright infringement and the crime of sales of infringing copies. And the crime of “illegal operation”, which was quite commonly used in the past, is no longer applied now.
According to Article 217 in the Criminal Law against the crime of copyright infringement:
“A person who, with a view of profit, to reproduce and distribute, without the permission of a copyright owner, a written work or musical, cinematic, television or video work, or computer software or any other work or record the video or radio without the approval of the manufacturer, and thereby earn a great amount of gains or is with other severe conditions, it shall sentenced the imprisonment of no less than three years or the detention……”
The Article 218 of the Criminal Law governing the crime of selling infringing copies:
A person who, with a view of profit, sells those which he well knows infringing reproductions specified in Article 217 of this Law, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and concurrently or independently, to a fine, if the amount of his illegal gains is huge.
The difference of the two crimes is whether the conduct of copy is involved in it. Once a pirate the reproduce the disc and thereby infringes others’ copyright, while to purchase them from other s may constitute the crime of selling pirated discs. The threshold of the crimes are different to a great extend, and by the relevant judicial interpretation, to copy 500 discs could constitute the crime of copyright infringement, and would be sentenced the imprisonment of no more than years, while the pure sales of the pirated disc requires the income of more than RMB 100, 000 to be prosecuted the crime of selling infringing copies.
II. The judicial organs has revised the enforcement of the criminal law
In April of 2007, the Supreme People’s Court and the Supreme People’s Procuratorate jointly published the Interpretation on Several Issues concerning the Law Application in Hearing the Criminal Cases concerning the IPR (the “Interpretation”). The Interpretation further extended the strength combating the piracy. The aforesaid amount of 500 discs involved for the prosecution of crime of copyright infringement comes from the Article 1 of that Interpretation. The combating against the piracy is of no question shall be stressed and implemented, but that Interpretation has gone too far, and even beyond the regulation in the Criminal Law. According to Article 2 of this Interpretation:
“The ‘copy and reproduction’ in Article 217 of the Criminal Law includes the reproduction, issuance or both of them…when reproduce, copy or publish others’ works and constitute the crime of copyright infringement, it shall be punished and prosecuted as per the crime of copyright infringement.”
Due to the sales is included in the publication, and therefore, the purely sales of the pirated works is also regulated as the infringement against the copyright. As retrieved by the writer, the courts in the developed regions of Chin still take the conduct of copy to judge whether it shall constitute the crime of copyright infringement or the crime of sales of infringing copies (note: the link is in Chinese).
But on 12th of January of 2011, the Supreme People’s Court, the Supreme People’s Procuratorate, the Department of Police and the Department of the Justice jointly published the Opinions on the Several Issues concerning the Law Application in Hearing the Criminal Cases involving IPR Issues (the “Opinions”). As regulated in Article 12 of the Opinions:
“As to the determination and relevant issues concerning the publication in Article 217 in the Criminal Law, the ‘publication’ shall include the general publication, wholesale, retail, communication by network and releasing, or exhibit for sale. The illegal publication, copy or issuance of others’ work which infringes the copyright of others and thereby violate the criminal law, shall be punished and prosecuted as per the crime of copyright infringement, instead of the crime of illegal operation. On the same day, the Legal Daily published a report titled “The chief Judge from the Supreme People’s Court made a specified explanation on the judicial interpretation of hearing over the criminal cases concerning IPR: and all the pirated disc selling shall be decided as the crime of copyright infringement. It could be easily judged from the aove title that the essence of the pirated disc selling is copyright infringement crime.
III. The damage from the revision
As thought by the writer, the revision made by to the Criminal Law by the above two judicial interpretations may arise major problems in three prospects:
First, in the Criminal Law, the crime of copyright infringement and the crime of selling infringing copies are divided by whether the conduct of copy is involved in it. And yet the later promulgated Judicial Interpretations revises the “copying and publication”, which used to be the essential condition of the objective aspect of the crime of copyright infringement, to only demanding the conduct of “copying” or “publication”. That is in fact to replace the original crime of selling infringing articles adopted to combat the sales of pirated disc with the new crime of copyright infringement. And it is revising rather than interpreting the regulation of the Criminal Law. However, as stipulated in the Decision concerning Strengthening the Law Interpretation of the Standing Committee of the China People’s Congress, the Supreme People’s Court and the Supreme People’s Procuratorate could only issue the interpretation on the law application, and for this aspect, the amendment to the fundamental laws is of no question be within the power of the Convention of the National People’s Congress. And alike, as the subordinated departments of the State Council, the department of the police or the department of the Justice shall also has no power to amend the Criminal Law. Therefore, the issuance of the two Judicial Interpretations has already surpassed the power of the Supreme Court and the Supreme Procuratorate in China, and damaged the power of legislature of the National People’s Congress.
Second, despite a heavier punishment against the infringement of IPR has been regulated in the Judicial Interpretation as compared with the original rules in the Criminal Law, the reasonability of it seems to be not adequate. The reference by which to divide the crime of the copyright infringement or the crime of selling infringing copies is quite clear. As in terms of the copy and the publish of the pirated discs, the “copy” demands the threshold both in the technology and the equipment used, and that determines not all the people could engage in it. On the other hand, the publication of the disc is with a lower threshold, and the sales of the pirated discs which would be included in the publication could be carried out by almost every one. It could be concluded thereby that the damages caused by the copy is much severe than the publication. As clearly clarified the crimes, the Criminal Law adopts a heavier punishment over the conduct of copy, and even the amount involved is less, it could also be prosecuted as the crime. On the other hand, we could see that for less severe but more common conducts, the Criminal Law has set a higher threshold, and only when the amount involved is more than RMB 100, 000 yuan, it would be chased the criminal liability. But after the revision of the Judicial Interpretation, even the difference with regard to the severity of the crimes is not removed, the current judicial organ would treat the lighter selling conducts with a heavier punishment, and also the threshold of the prosecution is the same. With all these non differentiation on the combating target, it would not be good to the crime fighting.
Third, what could be more ridiculous is the regulation in the existing Judicial Interpretation that “any sales above 500 pieces of discs could be prosecuted the criminal liability” actually makes almost all the vendors be the criminals. And so far each disc is labeled from RMB 4 to 8 yuan, and the minimum benefit ranges from RMB 3 to 5 yuan, and judging this standard, to support their life above the basic standard for living, they shall at least sell 500 discs per month. And according to the new Judicial Interpretation, all these men would be chased the criminal liability. But in the practices, we have seen it again that the law excuse men who has been engaged in the widely spread slight violation against the Criminal Law, but few of them may also be put under the criminal hearing in the political campaign, or those who disobedient would be punished by the culture law-enforcing administration or the police, and afterwards be prosecuted for the criminal liability. For those who have been put under the law punishment, the law enforcement seems unfair to them, and for the rest vendors, considering the less possibility to be prosecuted, they are not likely to be shocked by the new regulation, and continue their piracy. For this reason, we could say that the purpose to strike piracy by means of heavy criminal punishment could not be fulfilled, while the seriousness of the law has been damaged.
In closing, for the more and more severe infringement against the IPR in these years, China has strengthened its protection over the IPR, the judicial organ may consider a heavier strike against the pirated disc from the aspect that to rule the troubled times with a heavy law code. And yet with the emerging of the Internet, to spread the pirated articles by means of disc has already not been the most damaging infringement against the IPR, those combination of P2P software and the pirated website has produced a much fast spreading and a wider coverage. For this reason, the even now the heavy law code is focusing on the pirated disc in sale, it has not been the main reason contributing to the troubled times, and we would argue is it still necessary to put such a heavy punishment over it?