Dilemma and Outlet: the Substantive Linking between Copyright Law and Criminal Law of China Copyright Crime
https://doi.org/10.17803/2587-9723.2020.3.044-048
Abstract
When the person’s administrative illegal act reaches a certain degree of social harm and violates the criminal law, the change of the administrative illegal act to the administrative crime is appeared. Therefore, the administrative crime links the administrative illegality with the criminal illegality, as well as the administrative law and the criminal law, which makes the relation of these two factors more and more closely. However, if the administrative illegal cases achieve the standard of crime, it should be transferred from the administrative law enforcement organs to the judicial organs. To be based on this, the connection of the administrative law enforcement and criminal justice become possible.
In the field of copyright law, the copyright law and the criminal law constitute the legal protection system of copyright. Although Article 48 of the copyright law provides a legal basis for substantive linking between copyright law and criminal law, but there are some problems between them. More concretely, it mainly includes the following four aspects: First, on the criminal object aspect, there is a lack of cohesion between the copyright law and the criminal law. The copyright law protects both moral rights and property rights. However, the criminal law mainly protects property rights and a few moral rights. For example, the criminal law only protects the authorship right of artistic works. Thus, the scope of the object protected by the criminal law is much smaller than that of the copyright law. Then, on the objects of criminal behavior aspect, there is a lack of cohesion between the copyright law and the criminal law, too. The copyright law protects all works of literature, art and natural sciences, social sciences, engineering technology, etc. However, the object of the copyright crime is limited to literary works, music, movies, television, video works, computer software and other works. At the same time, the criminal law stipulates different objects according to the different ways of copyright infringement. Obviously, the types of works protected by the criminal law are far less than those protected by the copyright law.
Next, the linking between copyright law and criminal law is imperfect on the objective aspect of crime. Article 48 of the copyright law stipulates eight specific copyright infringements, but the criminal law only criminalizes four of them. This makes the majority of copyright infringements stipulated in the copyright law not guaranteed by the criminal law. Consequently, the protection of the copyright law
by the criminal law becomes impossible.
Finally, there are inconsistencies between the provisions of the criminal law and the copyright law on the subjective aspects about copyright infringement. The criminal law stipulates that the subjective aspect of the copyright crime is intentional, and the perpetrator should have profit-making purposes. Therefore, the perpetrator has profit-making purpose is the main point to judge whether the copyright infringement constitutes the copyright crime. On the contrary, no matter the copyright infringement of stipulated in Article 46 or Article 47 in the copyright law, there is no need for the perpetrator to have a subjective profit-making purpose. As a result, many serious copyright infringement stipulated in the copyright law should constitute crimes, but there is no corresponding provision in criminal law, which ultimately leads to these copyright infringements escape the punishment of criminal law.
In order to improve and perfect the mechanism linking criminal justice and administrative enforcement in copyright, it is firstly necessary for us to expand the scope of the copyright crime object. Although the objects protected by the criminal law and the copyright law are all copyright, the scope of the objects protected by the two laws doesn’t completely coincide. Specifically, the object scope of the criminal law on the protection of copyright crime is much smaller than that of the administrative law on the protection of copyright infringement. It is bad for the construction of the legal protection system of copyright.
So we should to revise the relevant provisions of the criminal law with reference to the provisions of the copyright law, to integrate all the personal rights of works other than the right of signature of artistic work into the scope of protection of the criminal law.
Secondly, to extend the scope of the copyright criminal behavior objects. As the object of copyright crime stipulated in the criminal law only screens out some types of works stipulated in the copyright law, a serious copyright infringement often occurs in the judicial practice of copyright legal protection, which can’t be regulated because it infringes on the object of action not protected by the criminal law. Therefore, it is necessary to take the provisions of the copyright law as the standard, bring the works stipulated in the copyright law into the scope of protection of the criminal law, so as to prevent copyright infringement which seriously endangers the society from occurring in the field of copyright protection, but the criminal law can’t regulate it.
Thirdly, to expand the behavior types of copyright crime regulation. As a serious copyright infringement, the provisions of copyright crime in the criminal law don’t link up with the general copyright infringement, resulting in eight kinds of copyright infringement stipulated in the copyright law because of the lack of corresponding provisions in the criminal law, some infringements aren’t regulated by the criminal law. Consequently, it affects the effect of law application and the full protection of copyright.
So we should incorporate all the eight kinds of copyright infringement listed in Article 48 of the copyright law into the regulation of the criminal law.
Finally, to abolish the "profit-making purpose" of the subjective aspect in the copyright crime. The copyright crime is an administrative offence, which determines that the nature of copyright infringement should be judged by the copyright law firstly, since the copyright law stipulates that the establishment of copyright infringement doesn’t require the perpetrator to have a "profit-making purpose", it is reasonable to abolish the definition of "profit-making purpose" for the copyright crime based on the theory of administrative crime and the determination of the copyright law.
In the field of copyright law, the copyright law and the criminal law constitute the legal protection system of copyright. Although Article 48 of the copyright law provides a legal basis for substantive linking between copyright law and criminal law, but there are some problems between them. More concretely, it mainly includes the following four aspects: First, on the criminal object aspect, there is a lack of cohesion between the copyright law and the criminal law. The copyright law protects both moral rights and property rights. However, the criminal law mainly protects property rights and a few moral rights. For example, the criminal law only protects the authorship right of artistic works. Thus, the scope of the object protected by the criminal law is much smaller than that of the copyright law. Then, on the objects of criminal behavior aspect, there is a lack of cohesion between the copyright law and the criminal law, too. The copyright law protects all works of literature, art and natural sciences, social sciences, engineering technology, etc. However, the object of the copyright crime is limited to literary works, music, movies, television, video works, computer software and other works. At the same time, the criminal law stipulates different objects according to the different ways of copyright infringement. Obviously, the types of works protected by the criminal law are far less than those protected by the copyright law.
Next, the linking between copyright law and criminal law is imperfect on the objective aspect of crime. Article 48 of the copyright law stipulates eight specific copyright infringements, but the criminal law only criminalizes four of them. This makes the majority of copyright infringements stipulated in the copyright law not guaranteed by the criminal law. Consequently, the protection of the copyright law
by the criminal law becomes impossible.
Finally, there are inconsistencies between the provisions of the criminal law and the copyright law on the subjective aspects about copyright infringement. The criminal law stipulates that the subjective aspect of the copyright crime is intentional, and the perpetrator should have profit-making purposes. Therefore, the perpetrator has profit-making purpose is the main point to judge whether the copyright infringement constitutes the copyright crime. On the contrary, no matter the copyright infringement of stipulated in Article 46 or Article 47 in the copyright law, there is no need for the perpetrator to have a subjective profit-making purpose. As a result, many serious copyright infringement stipulated in the copyright law should constitute crimes, but there is no corresponding provision in criminal law, which ultimately leads to these copyright infringements escape the punishment of criminal law.
In order to improve and perfect the mechanism linking criminal justice and administrative enforcement in copyright, it is firstly necessary for us to expand the scope of the copyright crime object. Although the objects protected by the criminal law and the copyright law are all copyright, the scope of the objects protected by the two laws doesn’t completely coincide. Specifically, the object scope of the criminal law on the protection of copyright crime is much smaller than that of the administrative law on the protection of copyright infringement. It is bad for the construction of the legal protection system of copyright.
So we should to revise the relevant provisions of the criminal law with reference to the provisions of the copyright law, to integrate all the personal rights of works other than the right of signature of artistic work into the scope of protection of the criminal law.
Secondly, to extend the scope of the copyright criminal behavior objects. As the object of copyright crime stipulated in the criminal law only screens out some types of works stipulated in the copyright law, a serious copyright infringement often occurs in the judicial practice of copyright legal protection, which can’t be regulated because it infringes on the object of action not protected by the criminal law. Therefore, it is necessary to take the provisions of the copyright law as the standard, bring the works stipulated in the copyright law into the scope of protection of the criminal law, so as to prevent copyright infringement which seriously endangers the society from occurring in the field of copyright protection, but the criminal law can’t regulate it.
Thirdly, to expand the behavior types of copyright crime regulation. As a serious copyright infringement, the provisions of copyright crime in the criminal law don’t link up with the general copyright infringement, resulting in eight kinds of copyright infringement stipulated in the copyright law because of the lack of corresponding provisions in the criminal law, some infringements aren’t regulated by the criminal law. Consequently, it affects the effect of law application and the full protection of copyright.
So we should incorporate all the eight kinds of copyright infringement listed in Article 48 of the copyright law into the regulation of the criminal law.
Finally, to abolish the "profit-making purpose" of the subjective aspect in the copyright crime. The copyright crime is an administrative offence, which determines that the nature of copyright infringement should be judged by the copyright law firstly, since the copyright law stipulates that the establishment of copyright infringement doesn’t require the perpetrator to have a "profit-making purpose", it is reasonable to abolish the definition of "profit-making purpose" for the copyright crime based on the theory of administrative crime and the determination of the copyright law.
About the Author
Gu Yong-chao
Law School / Intellectual Property School,
Henan University
China
Kaifeng, Henan
China
Kaifeng, Henan
References
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Review
For citations:
Yong-chao G. Dilemma and Outlet: the Substantive Linking between Copyright Law and Criminal Law of China Copyright Crime. Legal Science in China and Russia. 2020;(3):44-48. (In Chin.) https://doi.org/10.17803/2587-9723.2020.3.044-048
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