Supreme People’s Court and Supreme People’s Procuratorate Interpretation Concerning Some Issues on the Concretely Applicable Law in Handling Criminal Intellectual Property Rights Infringement Cases (II)
JI No. (2007)6
The Supreme People’s Court announces: the “Supreme People’s Court and Supreme People’s Procuratorate Interpretation Concerning Some Issues on the Concretely Applicable Law in Handling Criminal Intellectual Property Rights Infringement Cases (II)” was passed on 4 April 2007 at the 1422nd meeting of the Supreme People’s Court Legal Committee, and the 75th meeting of the 10th prosecution committee of the Supreme Peoples Procuratorate, is hereby promulgated, and takes effect on 5 April 2007.
5 April 2007
In order to safeguard the socialist market order, punish intellectual property infringement crime activities according to the law, according to the relevant provisions of the Criminal Law and the Criminal Procedure Law, a number of questions concerning the concretely applicable law in handling criminal intellectual property rights infringement cases are interpreted as follows:
Article 1: For the purpose of profit, without authorization from the copyright holder, duplicating and distributing his literary works, music, films, television or video works, computer software and other works, where the sum of the amount of duplicates is higher than 500 copies, shall be considered as “having other grave circumstances” as provided in Article 217 of the Criminal Law; where the amount of duplicates is higher than 2500 copies, shall be considered as “having other especially grave consequences” as provided in Article 217 of the Criminal Law.
Article 2: “Duplication or reproduction” in the crime of copyright infringement in Article 217 of the Criminal Law, consists of duplication or distribution or both duplication and reproduction.
Where the possessor of infringing products promotes the sale of infringing products through means such as advertising or subscriptions, it shall be considered as “distribution” as provided in Article 217 of the Criminal Law.
Illegal publication, duplication and distribution of another person’s work, where it constitutes a copyright infringement crime, shall be punished according to the definition of the crime of copyright infringement.
Article 3: For intellectual property rights infringement, where it conforms to the suspension conditions of the Criminal Law, a suspended sentence may be applied. Where one of the following conditions is present, in general, a suspended sentence is not to be applied:
(1) where intellectual property infringement constituting a crime is committed again after having received criminal punishment or administrative punishment for intellectual property infringement;
(2) where no penitence is displayed;
(3) where it is refused to hand over unlawful gains;
(4) where other conditions where suspended sentences should not be applied are present.
Article 4: To those committing an intellectual property rights infringement crime, the People’s Courts shall comprehensively consider circumstances such as the unlawful gains of the infringement, the illegal business volume, the damage created to the rights holder, the harmfulness to society , etc., and punish with a fine according to the law. The amount of the fine is generally decided as more than once and less than five times the amount of illegal gains, or as more than 50% and less than once the value of the illegal business volume.
Article 5: Where the injured party has a proven and evidences criminal intellectual property rights infringement case, and directly file a complaint with the People’s Courts, the People’s Courts shall accept according to the law; criminal intellectual property cases gravely endangering the social market order and State interests, shall be indicted by the People’s Procuratorate.
Article 6: Work units committing the activities provided in Article 213 through 219 of the Criminal Law, shall be punished according to the corresponding amount of the quantitative standards for individual crimes as provided in the “Supreme People’s Court and Supreme People’s Procuratorate Interpretation Concerning Some Issues on the Concretely Applicable Law in Handling Criminal Intellectual Property Rights Infringement Cases” and this Interpretation.
Article 7: Where interpretations promulgated earlier do not accord with this Interpretation, this Interpretation will apply.