Understanding And Application Of "Reproduction And Distribution" In The Crime Of Infringing Copy Right

Innovation is the theme of human development in the 21 st century,and copyright is just to encourage people’s right of innovation.But at the same time,the frequency of infringement of copyright is also greatly increased.Before it erodes the bottom line of the copyright protection system,the criminal law should do something by itself.Since the crime of infringement of copyright was added to Criminal Law in 1997,there has been a hundred schools of thought in the theoretical field and a confusion in the practical field about the understanding and application of its "copying and distribution".As for the understanding and application of "reproduction and distribution" in the crime of copyright infringement,one aspect is aimed at the noumacy of criminal law,which mainly points to the real connotation of "reproduction and distribution".First of all,the definition of "reproduction and distribution" in Criminal Law and Copyright Law is not exactly the same.Is there a principle of unity of illegal order?Second,does "copy and release" mean "copy and release" or "copy and release",or does it mean something special? The other side of the problem is aimed at the judicial application,involving the qualitative nature of some cases in the judicial interpretation and practice of "copying and distribution".First of all,the judicial interpretations issued one after another have taken the position of expanding the interpretation of "reproduction and distribution",including "sales" and "information network communication" into the category of "reproduction and distribution".Is this expanded interpretation reasonable? Second,while the judicial interpretation is expanding,the Criminal Law Amendment(XI)also takes "information network communication" as another act independent of "reproduction and distribution",which leads to the inconsistency between the judicial interpretation and the criminal legislation.Is it worth examining the necessity of such amendment? Finally,how to accurately characterize the behaviors of copying and distributing infringing publications and private servers corresponding to the behaviors of sales and information network communication? All the above questions need to clarify the meaning of "copy distribution".In addition to the introduction,this paper mainly contains the following three parts.The first part sorts out the disputes about the meaning of "copy and distribution" in the normative and theoretical aspects.First of all,the specification of "copy distribution" is interpreted.Based on the principle of cracking down on crimes,the five judicial interpretations successively issued included sales and information network communication into the semantic range of "reproduction and distribution" by way of expanding interpretation,resulting in a wide difference between the provisions of copyright law and criminal law on "reproduction and distribution".The inconsistency of legislation and the expansion of judicial interpretation have led to the criticism of many intellectual property scholars,who think that it has the unity of illegal order.Secondly,the academic community also has different opinions on the meaning of "copy distribution".The "copy and distribution theory" holds that "copy and distribution" refers only to the act of copying and distribution,and does not include separate copying or separate distribution.The "copy or release theory" holds that "copy and release" includes the act of copying,publishing and copying and publishing.Finally,there are also disputes in the judicial application of "reproduction and distribution",including the identification of the relationship between "reproduction and distribution" and "sales" and "information network dissemination",that is,whether "sales" and "information network dissemination" can be interpreted as "reproduction and distribution".The second part clarifies the supposed meaning of "copy distribution" by clarifying the general principle of "copy distribution" explanation.First of all,the unity of legal order does not necessarily require the consistency of meaning of a certain term in different jurisdictions,and the independence in the double illegality of administrative crime creates space for the relatively independent interpretation of criminal law.Therefore,for the crime of copyright infringement,the identification of elements such as "work","copyright owner","license" and "publication" should follow the provisions of the Copyright Law.The identification of "reproduction and distribution" should be judged by independent criminal law.Secondly,since it is impossible to have a single act of copying for profit in practice,it is necessary to constrain the theory of "copying or distribution" that judicial interpretation insists on."Duplication" should be interpreted as "duplication for the purpose of distribution",which means that there is a subjective intention to copy for the purpose of distribution,but there is no objective implementation of the act of distribution;"Copying and distribution" should be interpreted as that the doer subjectively intends to copy and issue the infringing works that meet the standards of prosecution,and objectively implements the distribution behavior.The interpretation of "distribution" should be specifically differentiated into two situations: First,when "distribution" occurs in the field of non-sales(such as rental,information network communication and other fields),it can be interpreted literally,and it can be interpreted as the behavior of spreading to the third party in a certain way.Second,when "distribution" occurs in the field of sale,it should be interpreted as "the distribution of an infringing copy that has been copied by the replicator but has not been sold".The third part solves the dispute of "reproduction and distribution" in judicial application.First of all,regarding the relationship between "copy distribution" and "sales",both "hierarchical classification theory" and "first sale division theory" have inherent defects,so the "sales content differentiation theory" proposed by the author should be followed.Secondly,regarding the nature of copying and distributing infringing publications,we should take the "selling content differentiation theory" as the standard,and punish the crime of infringing copyright.At the same time,there is no concurrence between the crime of copyright infringement and the crime of illegal business operation,and they are mutually exclusive.Again,the interpretation of "information network dissemination" as "copy and issue" does not have the suspicion of analogy explanation.Even if "information network dissemination" is difficult to interpret as "distribution",there is still a way to interpret it as "duplication".Therefore,"Criminal Law Amendment(XI)" is not necessary to make it independent of "reproduction and distribution".Finally,the behavior of private server should be punished with the crime of copyright infringement.But when the genuine game server program meets the condition of trade secret,it constitutes the imaginary confluence of the crime of infringing copyright and the crime of infringing trade secret.As for the application of the articles in the conviction and punishment of the crime of copyright infringement,when the first paragraph and the sixth paragraph of the 217 article of the criminal law coincide,it is more appropriate to use the sixth paragraph as the basis for the conviction,but in terms of sentencing,it should be heavier than the act of destroying technical protection measures alone.