Research On The Criminalization Of Copyright Infringements Caused By Digital Network Technology

With the rapid popularization of the Internet,digital network technology has been widely used in copyright infringements. The copyright criminal law system of China was established mainly in the 90 s of last century. It ’ s regulation scope is relatively narrow and is far from enough to deal with the current diversified and frequent copyright infringements in the network environment. Thus it can hardly meet the actual needs of copyright protection in digital network era. Considering the defects of China’s copyright criminal law exposed in the digital network era, and China ’ s international obligations of copyright criminal law protection under the TRIIPS agreement, it’s imminent to escalate the criminal crackdown on various new copyright infringements by perfecting the copyright criminal law system. How to correctly grasp the value orientation of copyright criminal law, how to reasonably delimit the crime scope of various new copyright infringements caused by digital network technology, how to properly deal with the connection between the tort and crime of copyright, and how to achieve a rational balance among protecting copyright owner’s legitimate rights, safeguarding the public interests of society and promoting the healthy development of the network economy, are no doubt important theoretical and practical issues which must be solved under the new situation of the rapid development of digital network technology.The copyright infringements caused by digital network technology present some characteristics such as diverse subjects, complex situations and high-end technologies. We must be deliberate to the criminalization of the copyright infringements existing now and arising in future under the digital network environment, and follow the modesty principle, the necessity principle, the feasibilityprinciple and the interest balancing principle.The reproduction and distribution caused by digital network technology can be brought into the existing copyright crimes. However, there are some defects in China’s criminal regulation to the network communication acts which include uploading works to open websites and providing hyperlinks of works to the public.Though it can fill the legal loophole to a certain extent by regarding network communication as the act of the copyright infringement crime “ reproduction and distribution” through judicial interpretations, it’s a temporary expedient after all. The evidence is not sufficient, and it’s against the requirements of systematic interpretation and the principle of modesty. It’s even an analogical interpretation strictly speaking. In the long run, we should set network communication as an act of the copyright infringement crime independent from “reproduction and distribution”by amending the criminal law.Due to the openness of the Internet, the occurrence frequency of copyright infringements in the digital network space is very high. However, legal remedy is a kind of passive and hysteretic remedy. To make up for the deficiency of legal remedy,technological measures are widely used in copyright protection for the“nip in the bud”function. Since there is no absolute perfect technology, techniques, methods or equipment for circumventing or destroying the technological measure will come into being gradually after its application. In order not to make the purpose of preventing copyright infringements in vain, it’s necessary to resort to the criminal law to protect copyright technological measures to ensure their normal functions. Electronic copyright management information serves for the purpose of reducing the occurrence of infringements and protecting copyright by regulating the dissemination and use of works. Removing or altering electronic copyright management information may induce or enable the one who contact with the works to infringe the copyright, and it will soon expand the copyright owner’s losses just like a snowball. That’s why the law prohibits such acts. Although many scholars claim that the criminalization of removing or altering electronic copyright management information is necessary, the author argues that we should not blindly follow the foreign legislation, and there isno need to criminalize the acts of removing or altering electronic copyright management information.The copyright infringements in cyberspace can not be separated from the participation of all kinds of internet service providers. The criminal regulation of internet service is closely related to the public interests. We can neither ignore the interests of copyright owners and indulge internet service provider’s infringements,nor put excessive burden on internet service providers as to hinder the development of network economy. Internet service include internet content service, information retrieval service, internet platform service and internet access service. Internet content providers shall be responsible for the legality of the information provided by them. If they upload or link others’ copyright works to their websites without authorization and meet other constitutive requirements of the copyright infringement crime, they can be convicted and punished according to the crime. Internet access service is a kind of neutral technical service and is not necessary to be criminalized in principle. As for the provision of information retrieval service and internet platform service, the criminal law can prescribe special requirements for its criminalization referring to the "safe harbor principle" in the tort law. That is, the internet service provider may constitute crimes only when he knows an internet user is infringing others’ copyright through his internet service but fails to take necessary action such as screening, deleting the content or breaking the links.