Highlights: to introduce the first criminal case on the internet infringement, and also the analysis on the relevant laws and regulations in China.
As one of the biggest video websites in China, the openV.com, which claims being able to provide multi-platform VOD services through mobile phone, computer and television, has been prosecuted for criminal offenses, with the website itself and six staffs are brought to the court. OpenV has been the first video website put subject to criminal liability for unauthorized film and television works on demand services. This unprecedented case shocks the industry currently with widespread infringements, and also shows the determination to combat internet infringement of China government.
The pilfering broadcast of film and television works on China’s internet is serious, and the right owner tends to demand damages through civil litigation, which, however, makes the infringer not scared for the decreasing compensation standards referred to by the People’s Courts in similar cases, therefore and the infringement is still pervasive. Now the video website is probably sentenced to criminal liability, and that will certainly alert other infringing websites of the risk of imprisonment on the infringement.
In fact, there are explicit provisions in Chinese laws already regulating the criminal liability for the similar behaviors, yet have not been applied till now. And the following is the Bridge IP Commentary’ analysis on the relevant laws and regulations:
I. Provisions in the Criminal Law of People’s Republic of China (the “Criminal Law”)
As provided in Article 217 of the criminal law, a person who, with a view of profit, commits any of the following acts of infringing upon copyright, 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 illegal gains is relatively huge or any other serious circumstance exists; and if the amount of illegal gains is huge or any other especially serious circumstance exists, to fixed-term imprisonment of not less than three years and not more than seven years and concurrently to a fine:
1. 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 of the latter……;
According to the Criminal Law, only “reproducing and distributing” the infringed film and television works shall lead to the criminal liability. However, by the Copyright Law of People’s Republic of China(the “Copyright Law”), the distribution involves the sale or donation of the tangible reproduced work, which is completely different from the definition of the dissemination of infringed works through Internet for only videos are provided with no reproduction hereby produced. In other words, the video website shall bear no criminal liability by Article 217.
II. The Judicial Interpretations of the Supreme People’s Court and Supreme People’s Procuratorate
For the worsening internet infringement, China has promulgated relevant judicial interpretations regulating that the “Distribution” in Article 217 of Criminal Law shall include general distribution, wholesale, retail, dissemination and rental via information network, exhibition and other activities.
This Interpretation concludes the dissemination via information network into the “distribution”. Despite its contradictions with the Copyright Law, it shall still be applied in the Criminal hearings.
III. The Definition of “with a view of profit”
In the case mentioned above, the infringement amount is determined on the advertisement revenue gained by the website, with the indirect revenue included in the “illegal gains”, and this has also been explicitly regulated in relevant Chinese laws and regulation that except for the sales, the following circumstances can be regarded as “with a view of profit”:
(1) collecting fees directly or indirectly by publishing advertisements charged fees in others’ works, binding the third parties’ works or in other ways;………”
To conclude, though OpenV is the first entity sentenced to imprisonment for dissemination of infringed works via Internet, however, according to the laws collected by the Bridge IP commentary, it legally and clearly provides on such infringement in China. Meanwhile, the civil litigation also plays an active role in the infringement combat. For these two reasons, it’s believable that the infringement will be effectively curbed, and the investment in relevant industry will also be robust, furthermore, the royalty will surely be highly developing.
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Copyright reserved by Mr. You Yunting
Editor-in-Chief of Bridge IP Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. All news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only. You may contact us shall you have any opinions or suggestions.
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