Month: January 2011
Last week, the Supreme People’s Court and the Ministry of Public Security rolled out a new set of guidelines for criminal ipr infringement cases: the Opinions Concerning Some Questions of Applicable Law in Criminal Intellectual Property Law Infringement Cases.
Most of the matters addressed in these Opinions deal with fairly run-of-the mill procedural stuff: how to determine geographically which court has jurisdiction, rules concerning evidence treatment, value calculations, etc. However, the Opinions do contain some interesting provisions, especially where Internet piracy is concerned.
1: on-line advertising in the context of disseminating unauthorized works becomes subject to the Criminal Law’s profit-aim test.
2: it provides criminal enforcement thresholds for on-line copyright infringement. This sort of threshold was a big part of the recent WTO case DS362 (China – IP), where the WTO did not explicitly deem them to violate China’s commitments and obligations.
3: it expands accessory liability to those knowingly providing production for use in IPR infringement, and also those providing Internet-related services, such as Internet access, but also fee handling and collection. It will be very interesting to see how this expanded liability will impact behaviour vis-à-vis Internet audiovisual sites. To me, it seems that the objective is to create a screen around a/v sites, where the refusal to provide this sort of services should spell the end or audiovisual infringement.
Lastly: these Opinions provide that criminal publication, reproduction and sale of infringing works must be convicted as copyright infringement, not as illegal business. Before the recent Copyright Law revision, a separation was made between infringement of works permitted on the Chinese market, and works which were not (and did not enjoy copyright protection under the old Article 4 of the Copyright Law), where production or sale of illegal works was considered illegal trading, and not copyright infringement. This new rule seems to do away with this distinction, implying that “typical” media piracy is taken out of the scope of illegal publications trading. If anything, it will make enforcement-related matters concerning foreign works more consistent and transparent.
The Major Significance and Basic Experience of Shaping a Socialist Legal System with Chinese Characteristics
I, Fully understand the important significance of shaping a Socialist legal system with Chinese characteristics
Developing Socialist democracy and completing a Socialist legal system are important strategic tasks for building Socialism with Chinese characteristics. Since the establishment of the new China and especially in the thirty years of reform and opening up, under the correct leadership of the Chinese Communist Party, and through the persistent and unwavering common efforts of all sides, our country’s legislation work has gained huge achievements that attracted the attention of the world. In 1982, the present Constitution was passed, after this, on the basis of the development requirements of objective circumstances, parts of the content of the Constitution were revised four times in total. By the end of 2010, our country had formulated the current 236 valid laws, more than 690 administrative regulations and more than 8600 local regulations, and completely accomplished the concentrated clean-up work of current laws and administrative regulations, as well as local regulations. At present, legal departments covering all aspects of social relationships are complete, fundamental and important laws in all legal departments have been formulated, corresponding administrative regulations and local regulations are relatively complete, and generally, the integration of science and harmony has been achieved inside the legal system. A Socialist legal system with Chinese characteristics that is based on China’s national circumstances and reality, that is suited to the requirements of reform, opening up and Socialist modernization construction, that concentrates and reflects the aspirations of the Party and the people, with the Constitution as commander-in-chief, with laws related to the Constitution, civil law, commercial law and laws in other legal departments as backbone, composed of laws, administrative regulations, local regulations and laws and regulations at many other levels has been shaped, it has been realized that there are laws to follow in all aspects of national economic construction, political construction, cultural construction, social construction as well as ecological civilization construction. This is an important milestone in the history of our country’s Socialist democratic legal system construction, and has a major practical significance and a profound historical significance. Read the rest of this entry »
Opinions Concerning Some Questions of Applicable Law in Criminal Intellectual Property Law Infringement Cases
In order to resolve new circumstances and new problems that have been met by public security organs, people’s procuratorates and people’s courts in handling criminal intellectual property rights infringement cases in recent years, punish criminal intellectual property rights infringement activities according to the law, protect socialist market economy order, according to the provisions of the Criminal Law, Criminal Procedure Law and relevant judicial interpretations, integrating investigation, litigation and trial practice, these Opinions are formulated. Read the rest of this entry »