On The Crime Of Copyright Infringement

Since entering the Internet era,the use of Internet to implement the infringement of copyright more and more.In contrast,our criminal law fails to respond to such changes in a timely manner,leading to our inability to combat such crimes effectively.This paper analyzes the conditions of the crime of infringement of copyright,especially the conditions of establishing crimes under the network environment,in order to provide some beneficial effects for criminal legislation and criminal judicial practice.This paper is divided into three parts,that is,Introduction,text and conclusion.The foreword mainly is to the copyright criminal law protection and the Civil law protection present situation to make a simple contrast explanation,to draw out this article to discuss the key question.The first chapter is the summary of the crime of infringement of copyright.This paper mainly expounds two problems,one is the concept and characteristics of the crime of infringement of copyright.The crime of infringement of copyright refers to the books which are made in the 217 articles of the Criminal law of China,which are for the purpose of profit,the reproduction and distribution of copyright holders ’ writings,music,films,television,video works,computer software and other works,and the publication of the titles of other people with the exclusive right The sale of an artwork with the signature of another person is a large amount of illegal income or other serious circumstances.According to our country’s current criminal law stipulation,the crime of infringement of copyright has the following characteristics: the protection of the type of copyright is not enough,the scope of the protection of works is not enough,the way to constitute a crime is too few.The second is the summary of the crime of infringement of copyright.In this part,the author points out that the subjective elements of "profit-oriented" in the crime of infringement of copyright still have many controversial issues,such as "The purpose of profit" and the standard of judgment.In addition,the crime of the behavior of the objective elements of the problem is more prominent is the implementation of the behavior of the identification,especially in the network environment behavior of the determination of more doubts.The second chapter is the identification of the purpose of profit.This part mainly discusses three questions: one is the determination of the amount of illegal income.On this issue,the article discusses the pros and cons of the four standards of "illegal operation Amount","Profit Amount","Sales Amount" and "infringement amount",and then points out that the determination of the amount of illegal income should be judged by two criteria of "Sales Amount" and "infringement amount"."Sales Amount" only applies to the situation of direct profit,for the indirect profit situation,can be "infringement amount" to determine the amount of illegal income.Second,the network environment for the purpose of the determination of profit.This part points out that,in the network environment,the realization of the purpose of profit can adopt two kinds of ways,that is,direct way and indirect way.The way of direct profit is to rely on the direct reproduction and distribution of infringing works,and in the network environment,it is simply to collect fees from the users without authorization to provide browsing,downloading and transferring the works of others.Indirect profit means that the perpetrator does not charge a fee directly to the public,but rather to obtain profits in a more imperceptible way.In view of the actual situation,the judicial interpretation of the indirect profit way has a detailed description.The third is the dispute of "the purpose of profit".Based on the comparison between the two viewpoints of "main memory Theory" and "Master Waste Theory",the paper expounds the view that "profit-seeking" should be abolished at the appropriate time.The third chapter is the cognizance of behavior.This chapter mainly introduces three questions: first,the identification of the traditional reproduction and distribution behavior.The article holds that the "copy distribution" as stipulated in No.217 of the Penal Code refers to the act of copying and distributing.Only in this way can it be more reasonable to divide the crime of infringement of copyright and sale of infringing copies.The act of copying and distributing a copy of an infringing copy,which is a mere sale(a form of distribution),may be deemed to be a crime of selling infringing copies.For replication behavior,pay attention to the properties of the download behavior and the upload behavior.The article holds that downloading can be regarded as reproduction,but it should be combined with other elements to determine whether the crime of infringing copyright is established.Regarding the issue behavior,must make the distinction with the sale behavior.The second is the definition of behavior under the network environment.This part mainly discusses the problem of whether the behavior of Information network communication and the infringement of technical measures can be established to infringe the copyright crime.The article discusses the nature of the behavior of "deep link",the nature of unauthorized reprint of the works of others,the nature of using peer-to-peer software to download behavior,and the property of three kinds of behavior.The article points out that whether the above three acts constitute infringement of information network transmission rights and then set up infringement of copyright crime cannot be generalized.Under the current legal environment of our country,we must be very cautious about the behavior of "entering into crime” and can’t punish for punishment.In the premise of the necessity of punishment,it is necessary to distinguish the forms of responsibility of different subjects and to deal with them separately by economic,administrative and criminal means.With regard to the violations of technical measures,the article discusses the property of the acts of violating technical measures and the subsequent infringement of copyright and the behavior of individual technical measures and considers that if the subsequent use behavior can be evaluated as a copy distribution Act,the criminal liability for infringement of copyright should be investigated.At this point,the technical measures of aggression are often regarded as preparatory acts without the need for a separate criminal evaluation.If the follow-up is extremely minor,the damage to the technical measures is very limited and there is no need for criminal penalties.If the subsequent infringement of copyright is not carried out smoothly,there is still a need for such preparatory acts,but there is no such charge in the criminal law of our country,which is one aspect of the legislation to be paid attention to in the future.The third is the identification of aiding and abetting behavior under the network environment.This issue mainly introduces the nature of the behavior of the search engine and the behavior of the network cloud service provider.The article thinks that the behavior that the search engine provides can only be determined according to the theory of the one-sided instigator.Network Cloud service provider’s behavior is more complex,but generally can be identified as help behavior,but this kind of help behavior is neutral or punishable,still need to be divided into specific circumstances to treat separately.The fourth chapter is the treatment of the cross problem of civil and criminal in the crime of copyright infringement.This chapter mainly introduces the influence and reasonable use of the right of right to the crime and the influence of exhaustion on the crime.The article points out that in the case of the copyright ownership is disputed,it should not be easy to identify the crime.In the case of the concurrence of the procedure of the copyright ownership and the criminal procedure,the ownership of the copyright should be determined first.The reasonable use of copyright and the exhaustion of rights have important influence on the cognizance of the crime of infringing the copyright,because it directly affects the cognizance of the "without others permission" of the crime of copyright infringement.The conclusion points out that the crime of infringement of copyright in China’s criminal law cannot adapt to the social reality of infringement of intellectual property rights under the current network environment and should be amended appropriately in the case of adhering to the overall framework of infringement of copyright crime.