China lowers the conviction criteria of IPR violation

To lower the conviction criteria of the violation of the intellectual property right and enforce its strength for the crackdown is a synopsis for the "Explanations on Some Questions and Problems in Concrete Application of Handling Criminal Cases in Violation of Intellectual Property Right". The legal interpretation of it officially enters into force on 22 December 2004, for which Cao Jianming, Vice-president of the supreme people's court and Zhang Geng, Deputy procurator-general of the supreme people's procuratorate give the explanation as follows when they accept an interview by People's Daily reporter Wu Jing.

How much has the conviction criteria of the IPR violation actually lowered?
The illegal operational value has been lowered from RMB 200,000 yuan to 100,000 and further to 50,000 yuan while the illegal gains lowered from RMB 50,000 yuan to 30,000 yuan.

The "Criminal Law" mainly stipulated 7 crimes in infringement of the intellectual property right: fake registration trademark; selling products with counterfeited trademark; illegal producing, selling fake registered trademark; infringement of copyright; fake patent right; violating business secret; and selling violated copies.

Cao Jianming said, the legal interpretation has made detailed rules and regulations on the measurement of penalty in regard of the aforesaid 7 crimes. The initial penalty criteria for the previous four crimes stipulate: that the illegal operational value is above 50,000 yuan, or the gain obtained in violation of the law is above 30,000 yuan see a very big lowering as against the original legal explanation and prosecuting criteria.

The lowering of "criteria" is good for intensifying the strength in the crackdown of the crimes, and is also an honoring of the related commitments China made when entering the WTO. But how on earth the conviction "criteria" have been lowered after all? Zhang Geng made the concrete explanation in the following two phases:

  • As to the conviction criteria of the infringement of trademarks the illegal gains out of operation are lowered from the former RMB 100.000 and 200,000 yuan to 50,000 yuan, and at the same time there is an additional rule, i.e. whoever may be will be convicted if his/her illegal gains in violation of the law are more than 30,000 yuan.

  • The initial penalty criterion for the infringement of the copyright is lowered from the former illegal gains of RMB 200,000 yuan to the present 50,000 yuan while the gains obtained in breach of the law is lowered from RMB 50,000 yuan to 30,000 yuan.

  • With regard to the conviction "criteria" of crimes committed by units, the adjustment has also been made for the amount of five times that of personal crime to three times that of the personal crime.

    Strike at the accomplice in the infringement
    Whoever provides convenient condition, help shall be convicted as an accomplice.

    According to the legal interpretation, whoever in the knowing does such things as providing convenience or help to others committing the IPR infringement shall be convicted as accomplice. The conduct includes providing loans, funds, account number, invoice, certificates or licenses, or any places for production, operation, or any convenient condition, help for transportation, storage and acting as agent for import and export.

    Cao Jianming said, the person, who has acted as mentioned above though didn't take a direct part in the IPR infringement has a clear idea that others were doing the infringement, and so subjectively he has the intention of committing the crime with others while objectively has provided help to the action in committing the crime and so he should be considered as an accomplice.

    The value gained in the illegal operation:
    Not to be counted on the "price of real goods", but counted on the selling price.

    According to the legal interpretation, the value of the infringed products already sold out is to be counted in accordance with the actual selling price.

    Zhang Geng said, this is because we've taken the following two factors into consideration: one is to embody the principle that the penalty should be measured in line with the crime committed. When the infringer sells his infringed products the price is influenced by the supply and demand of the market and so the price is possibly lower than the "price of real goods" or equal to the "price of real goods". Therefore, to count on the actual selling price will be able to reflect in comparative way the damages brought about by the crime of the infringement to the society.

    And secondly, this has also taken into consideration of protecting the human rights, namely, on the one hand we have to protect the legal right of the copyrighters and objectively on the other we have to consider the legal right of the suspects. If to count the illegally gained value entirely according to the operational value of "real goods" it is quite possible to lead to an outcome in which the illegally gained value of the infringer is far much bigger than his actual selling price. If we measure the penalty in accordance with the value it's not fair.

    Online piracy
    It should be prosecuted of the criminal liability.

    In recent years the problem of network infringement, including the online piracy has roused popular concern of the society. Cao Jianming said, according to the relevant stipulations in the "Law of copyright" and the "Criminal law" the legal interpretation gives the explicit regulation as follows: any act or behavior with making profits as purpose and without getting permission of the copyrighters passes on to the public by way of information network their works of writings, music pieces, films, TV films, video works, computer software and some other works shall be considered as duplicated publication as stipulated in Article 217 of the "Criminal Law" and shall be penalized as the copyright infringement.

    By People's Daily Online



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