Notice on the issuance of the "Typical Cases of Procuratorial Organs Punishing Copyright Infringement Crimes in Accordance with Law".
The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government, the PLA military procuratorates, and the people's procuratorates of the Xinjiang Production and Construction Corps:
In order to thoroughly implement Xi Jinping's thought on the rule of law and Xi's cultural thought, increase the intensity of punishment of copyright infringement crimes in accordance with law, give full play to the role of judicial protection of copyright in regulating and promoting cultural construction, and better serve the construction of a strong country with intellectual property rights and a strong cultural country with high-quality and efficient procuratorial performance in the new era, the Supreme People's Procuratorate has selected and compiled six typical cases of procuratorial organs punishing copyright infringement crimes in accordance with law, including the "Ke Moumou Copyright Infringement Case", which are hereby issued to you for reference and reference in handling cases in various localities.
Supreme People's Procuratorate
December 28, 2023
Typical cases in which procuratorial organs punish crimes of copyright infringement in accordance with law
Table of Contents
Case 1: Ke Moumou's copyright infringement case
Case 2: Liu et al. infringed copyright, Yin et al. sold infringing copies
Case 3: Huang's copyright infringement case
Case 4: Case of copyright infringement by Peng and Li
Case 5: Case of copyright infringement by Hao
Case 6: Case of copyright infringement by He X A and sales of infringing copies by Zhu X A et al
Case 1
Case of copyright infringement by Ke Moumou
【Keywords】
Copyright Infringement Audiovisual Works Review of the necessity of detention Compensation settlement
【Abstract】
In handling cases of online infringement of the copyright of audiovisual works, promptly extract evidence such as mobile phone chat records, online platform backend and server data details, and accurately determine the number of infringing works. Pay attention to recovering stolen goods and recovering losses, and promote compensation and settlement, and earnestly protect the lawful rights and interests of copyright holders.
[Basic facts of the case]
From August 2021 to April 2022, in order to obtain illegal benefits, Ke Moumou used the "train collector" crawler software to collect the web version playback address data of more than 50,000 movies, TV series and other audiovisual works from video websites such as Youku, Tencent, and iQiyi, and stored it on a rented server. Through technical analysis, Ke Moumou reprinted the audio-visual works stored in the server to the website of his personal operation and management and the "XX Cinema" APP, and provided netizens to watch them for free. At the same time, Ke Moumou undertook the advertising business, placing splash screen advertisements when netizens watched the free audiovisual works stored by him on the "XX Cinema" APP, and collected advertising fees based on the amount of advertising impressions, making illegal profits totaling more than 350,000 yuan.
[Performance of duties by procuratorial organs]
On May 10, 2022, after the right holder Youku Information Technology (Beijing) Co., Ltd. reported the case, the Public Security Bureau of Sanming City, Fujian Province (hereinafter referred to as the Sanming City Public Security Bureau) filed a case for investigation on suspicion of copyright infringement by Ke Moumou. On the 17th of the same month, the Sanming City Public Security Bureau transferred the case to the Mingxi County Public Security Bureau for investigation. On the 31st of the same month, the Mingxi County Public Security Bureau criminally detained Ke Moumou, and on June 1 of the same year, he was released on bail pending further investigation. At the invitation of the Mingxi County Public Security Bureau, the Mingxi County People's Procuratorate (hereinafter referred to as the Mingxi County Procuratorate) sent personnel to review the evidence materials in accordance with the mechanism for hearing opinions on major and difficult cases, and recommended that chat records be extracted from the seized computers, hard disks, and mobile phones in a timely manner, and that evidence such as the details of the background and server data of illegally collected audiovisual works be collected to determine the number of infringing works, and to further ascertain the copyright ownership of the infringing works.
On February 15, 2023, the Mingxi County Public Security Bureau transferred Ke Moumou to the Mingxi County Procuratorate for review and prosecution on suspicion of copyright infringement. The procuratorial organs are to focus on the following work: First, accurately determine the number of infringing works and the amount of illegal gains. Summarize the electronic data of the infringing audiovisual works stored in the server rented by Ke Moumou, and eliminate the duplicates, combined with the appraisal opinions, it is determined that the number of infringing audiovisual works is more than 50,000. The transaction records of the online payment account used by Ke Moumou were checked one by one, and it was determined that the advertising fees collected by him totaling more than 350,000 yuan were illegal gains. The second is to protect the legitimate rights and interests of intellectual property rights holders in accordance with the law. Serve the infringed company with a notice of the litigation rights and obligations of the rights holder in the criminal case of infringement of intellectual property rights, and fully listen to their opinions and suggestions. Strengthen the interpretation of the law and reasoning, prompting Ke Moumou to admit guilt and repentance, return all illegal gains, and reach a compensation and settlement agreement with the infringed company, fully protecting the lawful rights and interests of intellectual property rights holders. The third is to carry out a review of the necessity of detention. On March 14 of the same year, the procuratorate decided to arrest Ke Moumou. Later, Ke's close relatives applied for a modification of compulsory measures against him, and the procuratorate carried out a review of the necessity of detention in accordance with the application. After convening a public hearing and hearing the opinions of the people's supervisors and hearing officers, it was found that the facts of the case had been basically clarified, the evidence had been collected and fixed, and that Ke XX and the infringed company had reached a settlement agreement, that the adoption of release on guarantee pending further investigation would not cause danger to society, and that there was no need for continued detention, and that the compulsory measures against Ke XX were changed to release on guarantee pending further investigation.
On April 4, 2023, the Mingxi County Procuratorate prosecuted Ke Moumou for copyright infringement. On the 20th of the same month, the Mingxi County People's Court made a first-instance judgment and sentenced the defendant Ke Moumou to three years in prison, suspended for four years, and fined RMB 400,000 for copyright infringement. The defendant did not file an appeal and the judgment entered into force.
【Typical Significance】
(1) Consider the characteristics of cybercrime to determine the facts of the case. In the case of online copyright infringement of audiovisual works, the number of infringing audiovisual works is large and the right holders are scattered, and most of the evidence involved in the case is electronic evidence. The procuratorate shall comprehensively determine the ownership and quantity of the infringing audiovisual works and accurately ascertain the facts of the case by summarizing, checking for duplicates, and appraising the electronic data of the infringing audiovisual works extracted, and taking into account factors such as whether the perpetrator can provide relevant proof of obtaining permission from the copyright owner and the copyright owner's identification opinions on the infringing audiovisual works.
(2) Explain the law and reason to facilitate compensation and settlement. In copyright infringement cases, in order to reduce the cost of rights holders to protect their rights and reduce the burden of litigation for them to file separate compensation lawsuits, the procuratorial organs have strengthened comprehensive protection, actively listened to the rights holders' opinions in the course of performing their duties, actively carried out explanations of the law and reasoning, and facilitated the two parties to reach a compensation settlement, so as to protect the rights holders' lawful rights and interests to the greatest extent;
Case 2
Case of copyright infringement by Liu et al., and sale of infringing copies by Yin et al
【Keywords】
Copyright infringement Crime of selling infringing copies Written works Balance leniency and severity Procuratorial suggestions
【Abstract】
In cases of intellectual property infringement where the circumstances of the case are complex, the crime is committed in a wide area, and there are a large number of participants, actively give play to the role of mechanisms for hearing opinions in major and difficult cases, and make recommendations to the public security organs on the characterization of the case, the collection of evidence, the application of law, and so forth, so as to accurately determine the facts of the crime and correctly apply the law. Implement the criminal policy of blending leniency and severity, and make a decision not to prosecute in accordance with law by comprehensively considering subjective and objective factors for actors at lower levels and with less effective roles. Formulate and issue procuratorial recommendations for loopholes in administrative supervision and industry governance discovered in the handling of cases, and urge administrative organs to perform their regulatory duties in accordance with law.
[Basic facts of the case]
From January 2012 to January 2021, for the purpose of making profits, Liu successively arranged for Dang Mou, Guo Moujia, and Zhang Moujia to open studios in Nanyang City, Henan Province, Linfen City, Shanxi Province, Zaozhuang City, Shandong Province, and other places, and hired personnel to set up stores on multiple online platforms to copy and distribute text works without the permission of the copyright owner. After the customer places an order in the online store, the customer service staff will send the name of the book, the number of purchases, the receiving address, the contact phone number and other information provided by the customer to the statisticians Zhang Mouyi, Zhang Mou C, Zhang Mou Ding and others, and the statisticians will find the e-book according to the customer's needs and send it to the printing workshop operated by Zeng Moumou, Liu Moujia, Ou Moujia and others for printing, and the printing workshop will mail it to the customer. For those who did not find e-books to print, Liu asked each studio to buy pirated books from offline and mail them to customers. In order to strengthen management, Liu recruited Jin, Wu, Ding, Wang, Xie and others to be responsible for the financial work of each studio in Nanyang City, Linfen City, Zaozhuang City and other places and was directly responsible for it, and recruited Pan, Yan, Ding, Wang Moujia, Zhai and others as studio supervisors to manage other matters other than financial work. Liu and other people involved in the case reached 64 people, with illegal profits totaling more than 1,500 yuan.
From February 2019 to February 2021, Wang Mouyi entrusted Zhang Moumou and others to print pirated books and sell them to booksellers Yin Moumou, Xu Moumou, Duan Moumou, Bai Moumou, Guo Mouyi and others for the purpose of making profits. In order to obtain illegal benefits, Yin XX, Xu XX, Duan XX, Bai XX, Guo XX B and others sold the pirated books they had purchased. Some of the pirated books printed by Wang were sold to Liu's studio. Wang Mouyi and other people involved in the case reached 23 people, and the illegal profits totaled more than 200 yuan.
[Performance of duties by procuratorial organs]
On January 14, 2021, the Shanting Branch of the Public Security Bureau of Zaozhuang City, Shandong Province (hereinafter referred to as the Shanting Branch) filed a case for investigation on suspicion of copyright infringement by Liu and others, and successively criminally detained Liu, Dang, Guo, Zhang and others. The People's Procuratorate of Shanting District, Zaozhuang City (hereinafter referred to as the Shanting District Procuratorate) was invited to send personnel to review the evidence materials in advance, and suggested that the whole case should be investigated mainly for the crime of copyright infringement, and that the investigation and evidence collection should be carried out starting from the accounting books of the studio, and the funds involved in the case should be audited, and the amount of illegal gains or illegal operations should be calculated in combination with the audit results; Customer service personnel who have made less illegal profits and simply carry out the leader's arrangements to engage in sales may not be handled as a crime based on the circumstances of the entire case. The Shanting Branch successively submitted to the Shanting District Procuratorate for approval of arrest of four people, including Liu and Wang Mouyi, on suspicion of copyright infringement. After review, the Shanting District Procuratorate made a decision to approve the arrest in accordance with the law.
On August 12, September 2, and September 23, 2021, the Shanting Branch transferred 72 people including Liu to the Shanting District Procuratorate for review and prosecution on suspicion of copyright infringement, 11 people including Yin on suspicion of selling infringing copies, and 2 people including Cao on suspicion of illegal business operations. The procuratorial organs are to focus on the following work: First, accurately determine the nature of the conduct. Comprehensively review the facts and evidence that the public security organs transferred the same criminal conduct for review and prosecution as the crime of copyright infringement and the crime of illegal business operation, and found that Cao XX and the other two constituted the crime of copyright infringement, to ensure that judicial standards are uniform. The purchase and sale of pirated books by Liu and others from offline is not found to be a crime in accordance with law because it does not meet the standards for prosecution. The second is to prosecute crimes and omissions in accordance with the law. After review, it was found that in addition to the crime of selling infringing copies, Guo Mouyi also entrusted others to print pirated books suspected of copyright infringement, so Guo Mouyi was additionally prosecuted for the crime of copyright infringement; Ou Mouyi was entrusted by Liu to print and mail pirated books for him, and Chen Moumou was entrusted by Zeng Moumou to help him print and mail pirated books for Liu, so he issued a "Supplementary Notice of Transfer for Prosecution" to the public security organs, requesting that Ou Mouyi and Chen Moumou be transferred for review and prosecution. On February 25, 2022, the public security organs transferred Ou Mouyi and Chen Moumou for review and prosecution on suspicion of copyright infringement. The third is to implement the criminal policy of blending leniency with severity. On the basis of persisting in strictly cracking down on copyright infringement crimes throughout the chain, a decision was made not to prosecute 26 criminal suspects who played a small role in the entire criminal process, made less profits, had little subjective malice, and the circumstances of the crime were obviously minor and did not cause much harm. Strengthen the connection between criminal and criminal acts, promptly transfer suspected administrative violations to administrative organs for handling, and avoid loopholes in punishment. Implement the system of leniency for those who admit guilt and accept punishment, and after explaining the law and reasoning, 52 people, including Liu, Zhang, Zeng, Liu, Ou, Jin, Wu, and Ding, voluntarily admit guilt and accept punishment, and voluntarily return all or part of their unlawful gains. Among them, Liu's family returned 1.5 million yuan of illegal gains on behalf of him, and 17 people, including Zhang Moujia, Jin Moumou, Wu Moumou, and Ding Moujia, returned more than 110 yuan of illegal gains. Fourth, actively extend the case-handling function. For regulatory loopholes in relevant administrative organs discovered during the handling of cases, formulate and issue procuratorial recommendations to the local cultural law enforcement departments in accordance with law, urging them to fully perform their regulatory duties, and promoting administrative supervision and industry governance.
On March 1, 2022, the Shanting District Procuratorate prosecuted 46 people including Liu for copyright infringement, 9 people including Yin for selling infringing copies, and Guo Mouyi for copyright infringement and selling infringing copies. On July 19 of the same year, two additional prosecutions were filed against Ou Mouyi and two others for copyright infringement. The three criminal suspects who are unable to appear in the case due to special circumstances are to be transferred by the public security organs to the local judicial organs for handling. On March 31, 2023, the Shanting District People's Court of Zaozhuang City made a first-instance judgment, sentencing the defendant Liu and 48 others to fixed-term imprisonment ranging from five years to six months, some of which were subject to suspended sentences and fines ranging from RMB 10.26 million to 40,000 yuan, and sentenced the defendant Yin XX and 9 others to fixed-term imprisonment ranging from three years to six months and criminal detention ranging from five to four months for the crime of selling infringing copies, all of which were subject to suspended sentences and fines ranging from RMB 200,000 to 120,000 yuan; Defendant Guo X B was sentenced to three years imprisonment and fined RMB 130,000 for the crime of selling infringing copies; On August 4 of the same year, the Zaozhuang City Intermediate People's Court made a second-instance judgment, commuting the sentences of the defendant Dang X and 6 others who had returned their illegal gains in full during the second-instance trial period to fixed-term imprisonment ranging from three to two years, all of which were subject to suspended sentences, and the other part of the judgment was upheld.
【Typical Significance】
(1) Strengthen coordination in the investigation and prosecution of cross-regional and chain-based copyright infringement cases. Networked, cross-regional, and chain-based copyright infringement cases are usually complex, involve a wide range of criminal areas, and involve a large number of people, making it difficult to handle cases. In handling such cases, procuratorial organs should give full play to the role of mechanisms for investigation supervision and coordination, and make a comprehensive analysis of the entire case through methods such as dispatching personnel to review evidence materials in advance, and put forward targeted recommendations from various aspects such as the direction of evidence collection, the characterization of the case, the amount of the crime, and the handling of personnel, so as to crack down on upstream and downstream crimes of copyright infringement throughout the chain, and promote the high-quality and efficient handling of cases.
(2) Implement the criminal policy of blending leniency and severity, ensuring that the punishment is commensurate with the crime. This case involves online and offline, running through all links such as copying, transportation, and sales, and the persons involved in the case gradually form different levels such as organizers, backbone members, or active participants in the process of committing the crime. In handling such cases, procuratorial organs should implement the criminal policy of blending leniency and severity, accurately determining the status and role of each perpetrator in the crime, correctly distinguishing between crimes and non-crimes, and properly determining the scope of criminal crackdowns;
Case 3
Huang's copyright infringement case
【Keywords】
Copyright Infringement Musical Works Sampling and Evidence Collection Notification of Rights and Obligations
【Abstract】
In handling a large number of cases of copyright infringement of musical works where rights holders are scattered, the ownership and authorization of the musical works involved in the case may be determined by means of sampling evidence. Strictly implement the system of informing rights holders of their procedural rights and obligations in criminal cases of infringement of intellectual property rights, guiding rights holders to assist in providing evidence such as copyright ownership and identity determinations of musical works involved in the case, to consolidate the factual foundation of the case.
[Basic facts of the case]
From February 2014 to November 2021, Huang rented a server at his home in Yuzhong District, Chongqing to build the "Music Forum Under the Tree" music download website, and he served as the sole administrator and operator of the website, with the administrator account name "Wild Tree". Huang obtained more than 100,000 domestic and foreign songs by purchasing them from overseas websites, downloading them from free websites, digitizing vinyl records, etc., and uploaded them to 18 cloud network disks that he paid to open. Without the permission of the copyright owner, Huang used the "Wild Tree" account to publish posts containing the above-mentioned music albums, music titles, cloud download links and other information on the website operated by Huang. The "Tree Music Forum" website implements a membership system, and members can obtain "tree coins" at a ratio of 1:1 by recharging the currency in the website, and use "tree coins" to pay for the cloud link and extract code of songs, which can be used to transfer or download music in the cloud network disk. After identification, there are more than 25,000 music-themed posts published on the "Music Under the Tree" website, involving more than 100,000 music works, of which more than 14,000 themed music posts have been purchased more than 80,000 times. The website has more than 60,000 registered members, more than 2,000 recharge members, and a total recharge amount of more than 50 yuan.
[Performance of duties by procuratorial organs]
On November 30, 2020, the Yuzhong District Branch of the Chongqing Municipal Public Security Bureau (hereinafter referred to as the Yuzhong District Bureau) filed a case for investigation on suspicion of copyright infringement by Huang. The People's Procuratorate of Yuzhong District of Chongqing Municipality (hereinafter referred to as the Yuzhong District Procuratorate) was invited to send personnel to review the evidence materials in advance, and put forward suggestions to the public security organs on the collection of evidence through sampling, and the determination of the ownership and authorization of the works involved in the case in combination with other evidence in the case, as well as the timely extraction of background data from the website.
On November 23, 2021, the Yuzhong District Bureau submitted a request to the Yuzhong District Procuratorate for approval of Huang's arrest on suspicion of copyright infringement. On the 30th of the same month, the Yuzhong District Procuratorate made a decision not to approve Huang's arrest on the grounds of insufficient evidence, and issued a detailed supplementary investigation outline focusing on the background data extraction and the identification of the infringing music works involved in the case.
On September 7, 2022, the Yuzhong District Bureau transferred Huang to the Yuzhong District Procuratorate for review and prosecution on suspicion of copyright infringement. The procuratorial organs will focus on the following work: First, accurately determine the number of infringing musical works. Huang proposed that more than 1,500 musical works with sampling and confirmation should be used as the basis for conviction and sentencing. The procuratorial organs held that in accordance with the provisions on "sampling evidence" in the Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringement of Intellectual Property Rights, the randomly selected musical works in this case covered different categories of songs such as Chinese and English, belonged to different record companies, and met the norms for sampling evidence collection. After Huang arrived at the case, he repeatedly confessed that he had not obtained the authorization of the right holder of the musical work, nor did he provide any relevant evidence materials for his copyright authorization, and there was no evidence to prove that the right holder of the musical work involved in the case had waived the relevant copyright. The Beijing Representative Office of the International Federation of the Phonographic Industry (Switzerland) has issued a copyright certificate to prove that Huang has not obtained authorization. Therefore, the number of infringing works should be determined by the total number of more than 100,000 musical works. The second is to implement the system of notification of litigation rights and obligations. Inform the Beijing Representative Office of the International Federation of the Phonographic Industry (Switzerland), the trustee of rights protection, of the rights and obligations of the litigation to ensure that the rights holder participates in the litigation in accordance with the law. Through multiple face-to-face communications and other means, fully listen to the demands of rights holders, guide them to submit relevant evidence materials around the musical works involved in the case, and protect their lawful rights and interests. The third is to strengthen the interpretation of the law and reasoning, and actively recover stolen goods and recover losses. Fully explained the law and reasoned, actively carried out efforts to recover stolen goods and recover losses, and prompted Huang to admit guilt and accept punishment during the trial phase and return all illegal gains.
On March 14, 2023, the Yuzhong District Procuratorate prosecuted Huang for copyright infringement. On April 26 of the same year, the Yuzhong District People's Court of Chongqing Municipality made a first-instance judgment and sentenced the defendant Huang to three years imprisonment, suspended for four years, and a fine of RMB 550,000 for copyright infringement. The defendant did not file an appeal and the judgment entered into force.
【Typical Significance】
(1) Sampling evidence in accordance with law, and comprehensively determining the number of infringing musical works involved in the case. In handling cases involving a large number of musical works and scattered right holders, it is difficult to determine the number of infringing musical works, and ascertaining the ownership and authorization of the musical works involved in the case is a prerequisite for accurately determining the number of works in accordance with the law. Through the initiation of the mechanism for hearing opinions in major and difficult cases, the procuratorial organs have sent personnel to review the evidence materials in advance, and recommended that the public security organs adopt the method of sampling evidence collection to determine the ownership and authorization of the musical works involved in the case. In the review for prosecution stage, the procuratorate conducts a review of factors that affect the objectivity of the sampling, such as whether the sample is representative, whether the sampling scope is consistent with other evidence in the case, and whether the sampling is random, and at the same time determines the number of infringing musical works based on the actor's confession and justification, whether the right holder has waived its rights, whether the rights are not protected by the mainland copyright law, and whether the rights have expired.
(2) Implement a system for informing rights and obligations, and promote substantive participation of rights holders in litigation. In criminal cases of infringement of intellectual property rights, the notification system of rights holders' litigation rights and obligations plays an important role in protecting the legitimate rights and interests of rights holders, enhancing the right holders' sense of access to justice, ascertaining the facts of the case, and improving the quality and efficiency of case handling. In this case, the procuratorate, together with the public security organs, communicated with the Beijing Representative Office of the International Federation of the Phonographic Industry (Switzerland), the trustee of rights protection, on several occasions, fully listened to his demands, guided him to submit copyright certification reports, power of attorney and other evidentiary materials around the name, ownership, and authorization of the musical works involved in the case, and established a regular liaison system with them, laying a good foundation for the handling of this case and subsequent such cases.
Case 4
Case of copyright infringement by Peng and Li
【Keywords】
Copyright Infringement Artistic Works Risk Warning Letter Cultural and Creative Industries
【Abstract】
Whether a work is registered or not, originality is a prerequisite for copyright protection. Where a work obtains a patent at the same time, the case shall be accurately characterized according to the constitutive elements of the crime of copyright infringement and the crime of counterfeiting a patent. Strengthen the protection of cultural and creative industries in accordance with the law through the formulation and issuance of reminder letters.
[Basic facts of the case]
Suzhou Industrial Park Ruo State Technology Co., Ltd. (hereinafter referred to as the company) created 20 assembly toys such as "LK503 Owl Alarm Clock" and "MC401 Racing Race", and produced and produced this series of assembly toys for sale in the market. From August 2020 to July 2021, without obtaining the permission of Ruozhi Company, Peng Moumou scanned and copied the above-mentioned 20 assembled toys, and organized production in a handicraft Co., Ltd. in Ruian City (later cancelled, hereinafter referred to as the handicraft company) operated by him, and then sold them through the online store he operated, with a total sales quantity of more than 11,000 pieces and a total amount of more than 340,000 yuan. During this period, Li Moumou was responsible for copying the drawings of assembling toys and assisting in organizing production. In July 2021, the public security organs seized 4,989 pieces of infringing assembled toys copied and produced in the handicraft company, with a total value of more than 240,000 yuan. After sampling and identification, the infringing toys and the same toys of Ruozhi Company constituted a reproduction relationship.
[Performance of duties by procuratorial organs]
On November 30, 2020, the Suzhou Industrial Park Branch of the Suzhou Municipal Public Security Bureau of Jiangsu Province (hereinafter referred to as the Park Branch) filed a case for investigation into the copyright infringement case of Ruozhi Company. On July 8, 2021, Peng Moumou and Li Moumou were criminally detained by the Park Branch, and were released on bail pending trial on the 11th of the same month.
On July 11, 2022, the Park Branch transferred Peng Moumou and Li Moumou to the Suzhou Industrial Park People's Procuratorate (hereinafter referred to as the Park Procuratorate) for review and prosecution on suspicion of copyright infringement. The procuratorate focuses on the following work: First, clarify whether the assembled toys involved in the case are works of art. After review, it was found that the assembled toy involved in the case was an aesthetic design, and the part of the artistic beauty with originality could be protected by the Copyright Law as a work of art. After the completion of the creation of the 20 assembled toys involved in the case, some of them obtained the "Work Registration Certificate", some of them obtained the "Design Patent Certificate", and some of them did not carry out any registration. According to the relevant provisions of the copyright law of the mainland, regardless of whether the work is registered or not, it does not affect the author's enjoyment of copyright in accordance with the law. By supplementing the evidence such as the creative manuscript of Ruozhi Company and the product release pictures of the company's WeChat official account, it was determined that the 20 assembled toys involved in the case of Ruotai Company were original and belonged to works protected by the copyright law of the mainland. The second is to pursue the criminal responsibility of the relevant personnel of the unit in accordance with the law. After review, Peng Moumou, as the legal representative and actual controller of the handicraft company, copied the infringing assembled toys and organized production in the company, and sold them in the name of the company, and the illegal gains belonged to the company. This case is a crime committed for the benefit of the company under the control of the will of the unit, and should be found to be a crime committed by the unit. After the case was discovered, the company was deregistered, and the procuratorate decided not to prosecute it, and in accordance with the provisions of the Criminal Law on crimes committed by units, the directly responsible person in charge Peng Moumou and the directly responsible person Li Moumou were investigated for criminal responsibility. In view of the obvious differences in the status and roles of the two persons in the joint crime, the distinction between the principal and accessory offenders is to achieve a proportionate punishment for the crime. The third is to actively perform duties in accordance with the law and strengthen copyright protection. In response to the problem that the company's products are easy to be infringed, the procuratorate issued a "Risk Prevention and Control Reminder Letter" to the company, suggesting that the level of intellectual property protection should be improved in terms of copyright registration, patent right application, and application of anti-counterfeiting technology. In response to the fact that Peng Moumou sold infringing toys through his own online store, the procuratorate issued a "Risk Prevention and Control Reminder Letter" to the e-commerce platform, suggesting that it take necessary supervision, prevention and control measures. The e-commerce platform adopted the above prompts, took corrective measures, and deleted the link to the infringing online store.
On February 28, 2023, the park procuratorate prosecuted Peng and Li for copyright infringement. On May 30 of the same year, the Suzhou Industrial Park People's Court made a first-instance judgment, adopted the facts alleged by the procuratorate and the sentencing recommendation, and sentenced the defendant Peng XX to two years and six months imprisonment and a fine of RMB 250,000 for copyright infringement, and sentenced the defendant Li XX to one year and six months imprisonment, suspended for one year and six months, and a fine of RMB 150,000. None of the defendants appealed, and the judgment has entered into force.
【Typical Significance】
(1) Determine the copyright attributes of the toys involved in the case in light of the constitutive elements of the work. Whether the toy involved in the case is a work protected by the Copyright Law is the basic issue of constituting the crime of copyright infringement. Copyright is automatically protected, regardless of whether the work is registered or not, and the originality of the work is the substantive requirement for obtaining copyright. The part of the toy involved in the case that has an original artistic aesthetic may be protected as a work of art. Where the toy involved in the case has obtained a patent right, the part of the toy with original artistic beauty is still protected by the Copyright Law. In the case that the infringement has constituted a crime of copyright infringement, it shall be convicted and punished as the crime of copyright infringement.
(2) Strengthen the protection of cultural and creative industries in accordance with law through the preparation and issuance of reminder letters. In handling cases of copyright crimes, the procuratorate should pay attention to the comprehensive protection of the infringed unit, and may help the infringed unit improve the level of copyright protection by means such as formulating and issuing risk warning letters. For the sale of infringing toys mainly through e-commerce platforms, the procuratorate may also urge the e-commerce platform to strengthen supervision and promptly delete the infringing links by issuing risk warning letters, so as to form a good co-governance force for copyright protection.
Case five
Case of copyright infringement by Hao
【Keywords】
The crime of copyright infringement "script killing" works is a combination of leniency and severity, and the source of the lawsuit is governed
【Abstract】
"Script killing" that is original and can be expressed in a certain form is a work protected by the copyright law of the mainland. In the process of reviewing and prosecuting, mediation should be actively carried out to facilitate the two parties to reach a compensation settlement. Through procuratorial suggestions and the organization of trial observations, publicize the protection of intellectual property rights, and promote the governance of the source of litigation in the "script killing" industry.
[Basic facts of the case]
From September 2020 to November 2021, in order to obtain illegal benefits, Hao Moumou used the online platform to purchase more than 200 electronic versions of "script killing" works without obtaining the permission of the copyright owner, rented venues, organized personnel to illegally produce "script killing" works, and sold them through his account registered on an online platform. The store sold a total of 3,233 copies of various types of "script killing", with illegal gains of 50,000 yuan. After identification, Hao Moumou's illegal production and sale of "Gu Mu Yin", "Article 22 School Rules" and other "script killing" constituted a reproduction relationship with the infringed works.
[Performance of duties by procuratorial organs]
On December 12, 2021, the Yingze Branch of the Taiyuan Public Security Bureau of Shanxi Province (hereinafter referred to as the Yingze Branch) filed a case for investigation on suspicion of copyright infringement by Hao Moumou, and released him on bail pending trial on the 21st of the same month.
On July 4, 2022, the Yingze Branch transferred Hao Moumou to the People's Procuratorate of Yingze District, Taiyuan City (hereinafter referred to as the Yingze District Procuratorate) for review and prosecution on suspicion of copyright infringement. The procuratorial organs will focus on the following tasks: First, find out the ownership of infringing copies and the number of copies sold. Give full play to the role of the investigative supervision and coordination mechanism, requiring the public security organs to carry out supplementary investigations into the attributes, ownership, identity, and amount of illegal gains of the works involved in the "script killing"; obtain the copyright registration certificate of the work involved in the case from the copyright department to determine the copyright owner of the work involved in the case; there are many types of "script killing" works involved in the case and the rights holders are scattered, and carry out sampling evidence collection and appraisal based on the quantity, type, and sales of the infringing copies; The delivery record is compared with the background data of a network platform to further determine the number of sales. The second is to fully protect the legitimate rights and interests of copyright holders. Inform the rights holders of the works involved in the case of their litigation rights and obligations by mail and public announcements, and fully protect the lawful rights and interests of the rights holders. Actively carry out compensation and reconciliation work, check the compensation situation and compensation list with Hao Moumou one by one, fully listen to the demands of rights holders, and facilitate Hao Moumou to reach compensation and settlement agreements with the five companies that have been infringed by the "script killing". The third is to implement the criminal policy of blending leniency with severity. Hao XX was a college student at the time of the crime, and had circumstances such as a first offense, truthful confession, reaching a settlement, and voluntarily returning all unlawful gains, and comprehensively considering the degree of criminal conduct and harm to society, it was decided to release him on guarantee pending further investigation, and to submit a sentencing recommendation that a suspended sentence could be applied.
On March 14, 2023, the Yingze District Procuratorate prosecuted Hao Moumou for copyright infringement. On April 25 of the same year, the procuratorate invited more than 200 people, including deputies to the National People's Congress, public security police, administrative law enforcement personnel, and college students, to observe the trial. On October 20 of the same year, the Yingze District People's Court of Taiyuan City made a first-instance judgment, adopting all the facts alleged by the procuratorate and the sentencing recommendation, and sentenced the defendant Hao Moumou to three years imprisonment, suspended for three years, and fined 20,000 yuan for copyright infringement. The defendant did not file an appeal and the judgment entered into force.
【Typical Significance】
(1) Accurately determine the attributes of the work of "script killing", and consolidate the factual foundation of the case. According to Article 3 of the Copyright Law of the People's Republic of China, a work refers to an intellectual achievement in the fields of literature, art and science that is original and can be expressed in a certain form. In this case, "Script Killing" is a game form that allows players to read the script, play roles, carry out story reasoning around the plot and clue game cards, and restore the plot and character relationships through game interaction. For the purpose of making profits, the act of illegally producing a genuine "script killing" script and selling it to the outside world is an act of infringing the right of reproduction and distribution of the work, and if a crime is constituted, it shall be convicted and punished as the crime of copyright infringement.
(2) Actively perform their duties in accordance with law, and promote the healthy development of the "script killing" industry. In recent years, the phenomenon of piracy in the development of the "script killing" industry has become a stumbling block restricting the healthy development of the industry. Through the formulation and issuance of procuratorial recommendations, the procuratorial organs are urging the administrative organs to strengthen the supervision of the "script killing" industry. The administrative organs adopted the procuratorial suggestion to carry out law enforcement inspections of new forms of entertainment venues such as "script killing" and escape rooms in their jurisdictions, correcting the negative content of the scripts; Procuratorial organs have strengthened publicity on the protection of intellectual property rights by organizing court trial observations, and promoted the formation of a positive atmosphere of respect for knowledge and protection of innovative achievements in all sectors of society.
Case 6
Case of copyright infringement by He X A et al., and sale of infringing copies by Zhu X A et al
【Keywords】
Copyright infringement Crime Selling infringing copies Teaching and auxiliary books The whole chain is cracked down
【Abstract】
Strictly crack down on the entire chain of crimes of pirated textbooks and supplementary books, and handle them in accordance with the status and role of each member in the joint crime, in accordance with the law, to ensure that the punishment is commensurate with the crime. Where there is fraudulent orders in online sales, it shall be reviewed and deducted in accordance with law when determining the amount of the crime, and the amount of the crime shall be accurately determined.
[Basic facts of the case]
From June to August 2022, without obtaining a printing license, He Moumou A used the identity information of his wife Zhang Moumou to set up a Shun Mou Da Printing Factory in Pingdingshan City, Henan Province, and recruited 6 printing personnel including He Mou B to illegally print textbooks, complete explanations of primary and secondary school textbooks, class notes and other primary and secondary school teaching books. After auditing, the total amount of books sold by the factory was more than 1.02 million yuan, and the value of unsold books totaled more than 20,000 yuan.
Zhu Moujia wholesaled the pirated teaching and auxiliary books purchased from He Moujia to Yuan Moujia and others, and used the identity information of his parents provided by Lu Moumou to register an online store. Lu Moumou is responsible for the sales of the online store, and Zhu Moumou B and other 3 people are responsible for bookkeeping and picking up goods. After auditing, Zhu Moujia and others sold books totaling more than 4.34 million yuan, illegally making profits of more than 580,000 yuan, and unsold books totaling more than 2.2 million yuan. Yuan Mou A sold pirated teaching and auxiliary books through an online store, and successively hired 7 people, including Yuan Mou B and Yuan Mou C, to be responsible for online store sales and packaging and delivery. According to the audit, Yuan Moujia and others sold a total of more than 2.2 million yuan, illegally made profits of more than 1.07 million yuan, and the value of unsold books totaled more than 2.66 million yuan.
Knowing that the above-mentioned books were pirated, Wang Moumou hired others to transport the packaged books from Zhu Moujia, Yuan Moujia and others to various express delivery points, and Wang Moumou should settle the delivery payment of more than 60,000 yuan, and actually received the delivery payment of more than 50,000 yuan.
[Performance of duties by procuratorial organs]
On August 2, 2022, the Weidong Branch of the Public Security Bureau of Pingdingshan City, Henan Province (hereinafter referred to as the Weidong Branch) filed a case for investigation on suspicion of copyright infringement by He Moujia, Zhu Moujia and others. The People's Procuratorate of Zhanhe District, Pingdingshan City (hereinafter referred to as the Zhanhe District Procuratorate) was invited to send personnel to review the evidence materials in advance, and make suggestions on the identification of pirated books, the amount of the crime, and the whole chain of crackdowns, so as to improve the chain of evidence.
On August 31, 2022, the Weidong Branch submitted a request to the Zhanhe District Procuratorate for approval of arrest on suspicion of copyright infringement by 6 people including He Moujia, and 10 people including Zhu Moujia on suspicion of selling infringing copies. The Zhanhe District Procuratorate accurately grasped the conditions for arrest and approved the arrest of 5 people, including He X A and Zhu X A, and did not approve the arrest of 11 people, including Zhu X B and Yuan X B, who had doubts about the evidence, the circumstances of the crime were relatively minor, and their attitude towards admitting guilt was relatively good.
On November 8, 2022, the Weidong Branch transferred 8 people including He Moujia to the Zhanhe District Procuratorate for review and prosecution on suspicion of copyright infringement, and 17 people including Zhu Moujia on suspicion of selling infringing copies. The procuratorial organs are to focus on the following work: First, accurately determine the charges involved in the case. In the course of handling this case, there was a controversy over the characterization of the act of printing the "Class Notes" without marking the publisher. The public security organs found that the books were not marked as publishers and were illegal publications, and that the relevant printing acts should be determined as the crime of illegal business operations. After supplemental investigation on its own, the procuratorate determined that the content of this part of the book was exactly the same as the genuine book "Class Notes", only the answers to the Xi questions were added, and the relevant printing behavior constituted the crime of copyright infringement. It is recommended that the public security organs appraise books that have not been marked as publishers, and improve the chain of evidence. The second is to accurately determine the amount of the crime. Adopt the principle of review with electronic transaction information as the mainstay, supplemented by verbal evidence, combined with the sales records of the online store and the transaction records of the bank account involved in the case, listen to the opinions of the personnel of the auditing institution, sort out the details of each online store's swiping and deduct it, and accurately determine the amount of the crime. The third is to insist on the whole chain of crackdown. According to the WeChat chat records and bank card transaction records of Zhu Moujia and others, one upstream and downstream printer and one retailer were prosecuted in accordance with the law (a separate case has been prosecuted). Fourth, implement the system of leniency for those who admit guilt and accept punishment. After explaining the law and reasoning, 25 people, including He X A, Zhu X A, and Yuan X A, all pleaded guilty and accepted punishment, and 9 people who had already made profits took the initiative to return all or part of their illegal gains. Among them, Zhu's family returned 310,000 yuan of illegal gains, Yuan's family returned more than 1.07 million yuan of illegal gains, and Wang Moumou and 7 others returned all their illegal gains. On the basis of the return of unlawful gains, a sentencing recommendation for a lenient punishment is to be submitted.
On December 18, 2022, the Zhanhe District Procuratorate prosecuted 7 people including He Moumou A for copyright infringement and 7 people including Zhu Moujia for the crime of selling infringing copies, and made a decision not to prosecute 11 people including Zhang Moumou, who committed minor crimes, voluntarily pleaded guilty and accepted punishment, and voluntarily returned their illegal gains. On April 28, 2023, the Zhanhe District People's Court of Pingdingshan City made a first-instance judgment, adopting the facts alleged by the procuratorate and the sentencing recommendation, and sentenced the defendant He Moujia and seven others to fixed-term imprisonment ranging from four to eight months, partly with a suspended sentence and a fine ranging from RMB 800,000 to 8,000, and sentenced the defendant Zhu Mou A and seven others to fixed-term imprisonment ranging from three years, eight months to eight months, and partly with a suspended sentence and a fine ranging from RMB 1.1 million to 10,000 yuan for the crime of selling infringing copies. Continue to recover defendant Zhu Moujia's remaining unlawful gains in accordance with law. On June 27 of the same year, the Pingdingshan Intermediate People's Court ruled to reject the appeal and uphold the original judgment.
【Typical Significance】
(1) Adhere to the principle of substantive review, and punish the crime of pirating teaching and auxiliary books in accordance with law. With regard to the characterization of pirated textbooks that are not marked as publishers, the principle of substantive examination should be adhered to, and the application of the crime of copyright infringement cannot be simply denied. If the content of the part of the book is exactly the same as the content of the genuine book, it is a copy of the genuine book, and it should be found to be an act of infringing the copyright of others. Where there are differences in the characterization of criminal conduct, the procuratorate should give full play to its supplementary investigative functions, collect evidence in accordance with law, accurately determine the nature of the case, and correctly apply the law. For the problem of swiping orders that is common in online sales infringement crimes, the procuratorate should deduct the amount of the swiping order and accurately determine the amount of the crime based on the sales data, logistics evidence, and the defendant's defense.
(2) Persist in cracking down on the entire chain, handling persons involved in the case in a hierarchical and categorical manner. Illegal printing or sale of primary and secondary school supplementary books not only infringes on the rights holder's intellectual property rights, but also causes harm to the lawful rights and interests of minors, seriously endangering the healthy growth of minors, and shall be severely punished in accordance with law. For joint crimes involving a large number of persons and a clear division of labor, the procuratorate should promptly initiate a mechanism for hearing opinions on major and difficult cases, assign personnel to review evidence materials in advance, promptly submit recommendations for investigation and evidence collection through the investigation phase and supplement the investigation on their own during the review for prosecution phase, and crack down on the crime of infringement of intellectual property rights throughout the chain from the source of production to the sales terminal; Factors such as admitting guilt and accepting punishment, adhere to the criminal policy of blending leniency and severity, accurately assess the criminal responsibility of each perpetrator, and handle persons involved in the case by level and category, so that the punishment is commensurate with the crime.