New Opinions on Criminal IPR Enforcement

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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.

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