On The Interpretation Of “Copy·Publish” In Crime Of Copyright Infringement

In judicial practice of handling copyright infringement, there are different identifications for the same behavior, mainly in sales of goods which infringe copyright. There are three kinds of treatment, the first identifies the behavior as crime of copyright infringement, the second recognizes it as crime of selling infringing duplicates, the third identifies it as crime of illegal business operation. The reason why violating the principle of equal treatment for the same behavior comes is, in Criminal Law Article 217 "copy·publish" is not clearly defined, the several judicial interpretations on "copy·publish" are contradictory to each other, and there are also disputes in academia on the meaning of "copy·publish". These all confuse practical workers.This paper aims to clarify the theoretical explanations of "copy·publish", to find out the cause of numerous contradictory judicial interpretations, and by determining the rank of means of interpretation and proving crime of copyright infringement is administrative detainees, to come to a reasonable explanation, through historical studies, comparative studies, case studies and methods of legal hermeneutics. In the end, the boundaries among the crime of copyright infringement, crime of selling infringing duplicates and crime of illegal business operation will be clearly defined.By combing the history of legislation and judicial interpretation, as well as a variety of viewpoints about the relationship among "copy·publish", selling, renting and dissemination in networks. There is some rationality in each point of view, but there are also three issues cannot be ignored.First, the nature of the object is not clear, which means that there is no answer to the question that crime of copyright infringement is criminal offender or administrative detainees; secondly, there is not a demonstration for its means of interpretation adopted; the third is the conflict between the theoretical interpretation and judicial interpretation is unresolved.About the nature of the crime of copyright infringement, it can be demonstrated both in form and substance. Formally, the crime of copyright infringement violates the copyright law which is an administrative law, and should be imposed penalty according to the Criminal Law; in essence, the crime of copyright infringement seriously harms the derivative life order, which is based on specific administrative purposes to inspire the creation and to balance the interests, and which does not have a close relationship with social ethics.On the determination of interpretation method, by way of department law, methods based on different values can be ranked in accordance to the value orientation of criminal law. Based on the position of limited objective interpretation, this paper chooses literal interpretation and logical interpretation, the latter includes systematic interpretation and teleological interpretation. The order of application is, using literal interpretation first, then the logical interpretation; the effectiveness is, when logical interpretation conflicts literal interpretation, literal interpretation limits the meaning, when the result of logical interpretation is within literary content, the teleological interpretation plays a decisive role.According to the method chosen in this paper, the conclusion is that "copy·publish" means copying and publishing, "copy" refers to reproducing works without increasing original content on a tangible carrier, "publish" is to make works available to the public by transferring ownership of works’ original or copies; “issue” is the first sale, and “sell” including the first sale, the secondary sale and repeated sales; dissemination in networks is not "copy·publish".This paper’s interpretation is certainly contradictory to judicial interpretation, because the judicial interpretation beyond the semantic boundary of "copy·publish" makes expansion on purpose, and also oversteps the legislative authority. Under the principle of “a legally prescribed punishment for a specified crime”, the problem of legislation should be modified by legislation. By way of a "blank counts + Copyright Law", to modify the crime of copyright infringement of Article 217 is conducive to maintaining the stability of the Criminal Law. In the case that the existing criminal law is temporarily unable to modify, the copyright protection system should be consummated through the effective coordination of civil remedies, administrative enforcement and criminal justice.