Whether "copying", "producing" but not "distributing" or "selling" can constitute the crime of copyright infringement

Author: Chen Hongbing

Source: Excerpt from "Interpretation of Economic Crime Charges and 100 Selected Cases".

Copyright Infringement

Introduction: Merely "copying" and "producing", without "distributing" or "selling", cannot constitute the crime of copyright infringement. Rental works are reproduced and distributed. The act of providing deep link services expands the scope of dissemination of infringing works, which is "disseminated to the public through information networks" and constitutes the crime of copyright infringement. Only when it is actually distributed, disseminated to the public through information networks, published, or sold can it actually infringe upon the copyrights of others, and only then can this crime be committed. There may be competition between this crime and the crime of producing and selling counterfeit and shoddy products, the crime of fraud, and other crimes. Where the perpetrator impersonates the signature of another person (such as a famous painter) on a work of art produced by himself, this crime is not established, and the crime of fraud may be established. There is no need to distinguish it from the crime of selling infringing copies, and to limit the "distribution" and "sale" in the crime of copyright infringement to total distribution, bulk sales, or large-scale sales. The conditions for the establishment of this crime are that "the amount of unlawful gains is relatively large or there are other serious circumstances". There are doubts about the "reply" that "if the perpetrator has not completed the printing of the infringing copy, the amount of the infringing copy shall be multiplied by the amount obtained from the amount of the printed copy to calculate the amount of its business, and it shall be determined that it is an attempt to commit a crime". Illegal publication, reproduction, or distribution of other people's works can only be found to be the crime of copyright infringement, and cannot be found to be the crime of illegal business operation. Where, in the course of committing this crime, fees are directly or indirectly collected by means such as publishing paid advertisements, it is also "for the purpose of making profits".

Article 217: [Crime of Copyright Infringement] Whoever, for the purpose of making profits, infringes on copyrights or copyright-related rights in any of the following circumstances, and the amount of unlawful gains is relatively large or there are other serious circumstances, a sentence of up to three years imprisonment and/or a fine is to be given; Audiovisual works, computer software, and other works provided for by laws or administrative regulations; (2) Publishing books in which others have exclusive publishing rights; (3) Reproducing, distributing, or disseminating to the public through information networks audio or video recordings without the permission of the producers of audio or video recordings; (4) Reproducing and distributing audio or video recordings of their performances without the permission of the performers, or disseminating their performances to the public through information networks; (5) Producing, (6) Without the permission of the copyright owner or the copyright-related rights holder, intentionally avoiding or undermining the technical measures taken by the rights holder to protect the copyright or copyright-related rights for the rights holder's works, audio or video recordings, and so forth.

1. Can a person who simply "reproduces," "makes," and does not "distribute," or "sell" constitute the crime of copyright infringement? Although the crime provides for "reproduction" (items 1, 3, and 4) and "sale" (item 5), it should be recognized that simply copying, producing, and not distributing or selling infringing works is only an abstract danger of infringing on the copyrights of others, and that the misdemeanor of copyright infringement does not lead to the punishment of abstract dangers. Therefore, it should be considered that a person who simply reproduces or produces an infringing work without distributing or selling it is not worthy of criminal punishment. The reason why the legislator juxtaposes "reproduction" with "distribution" and "production" and "sale" is only to make it clear that it is a crime to distribute or sell an infringing work copied or produced by oneself, or to distribute or sell an infringing work copied or produced by others. For example, the purpose of the simultaneous provision for the production and sale of counterfeit and shoddy products is to remind judicial personnel that the sale of counterfeit and shoddy products produced by oneself or the sale of counterfeit and shoddy products produced by others constitutes a crime, not that the act of production is the implementation of the crime of producing and selling counterfeit and shoddy products, and the act of simply producing and not selling counterfeit and shoddy products can also constitute a crime. In short, judging from the perspective of substantive illegality, it should be considered that simply copying, producing, and not distributing or selling infringing works does not constitute the crime of copyright infringement. Article 217, Paragraph 1, Item 3 of the Criminal Law stipulates that "reproduction, distribution, or dissemination of audio or video recordings produced by others through information networks without the permission of the producer of audio or video recordings" constitutes the crime of copyright infringement. The question is, without the permission of the producer of the audio or video recording, whether the leasing of the audio or video recording is the "distribution" of the audio or video recording? From the perspective of natural interpretation, since the gift can be recognized as distribution, leasing can of course also be recognized as distribution. It should be considered that the essential feature of distribution is the dissemination and diffusion of works, and renting out works is of course also a way to disseminate and diffusion works, so it belongs to distribution. Items 1 and 3 of this crime both provide for "reproduction and distribution", and there has been a theoretical controversy as to how to understand reproduction and distribution. Obviously, the consensus between theory and practice is that the so-called "reproduction and distribution" includes the act of reproduction or distribution and reproduction and distribution. Before the Amendment (11) to the Criminal Law explicitly included "communication to the public through information networks" as a means of copyright infringement, it has always been considered in practice that the act of disseminating to the public through information networks also belongs to "distribution". Because the essence of distribution is dissemination and diffusion, and dissemination to the public through the information network undoubtedly belongs to a kind of dissemination and diffusion, and it is a faster way of dissemination and diffusion than the traditional communication channels of paper media. 3. How to evaluate the nature of deep linking? Case 1: After applying for the registration of a website domain name, A sets up website X, rents a server, and installs relevant software to complete the link between the website and the server. Then, without copyright permission, through the management background of the X website, link to the Y resource network to obtain the seed file index address of the film and television works, recommend the works to users by setting up catalogs, indexes, etc., and provide network services for users of the X website to browse and download the above-mentioned film and television works by forcing the provision of specific playback software. Links, also known as hypertext links and hyperlinks, refer to the use of hypertext markup language to edit text files containing markup instructions, point to other content through common resource locators, and establish a connection between two different documents or different parts of the same document, so that visitors can access files at different URLs through one URL or other columns on the same site through a specific column. According to the different objects and forms, links can be divided into normal links, deep links, and framed links. The object of the normal link is usually the homepage of the linked website, and after clicking on the normal link, the user clearly knows that he has jumped from one website to the first page of another website. The object of a deep link is a specific page of the linked website other than the home page, such as watching a movie on the linked website. Framed links are a kind of deep links, but they are more advanced than other deep links, that is, the link creator uses framing technology to embed the film and television and other works on the linked website into the web page of the linked website, so that users can directly see the content of the linked work on the linked website, without jumping to the linked website, which is easy to cause users to mistakenly think that the content of the work is provided by the linked website. Although from the perspective of language classification, deep linking is also a kind of link, which only provides a network channel and does not directly upload the work on the website, which is an act of "indirectly providing the work". However, deep linking is not a normal link behavior, it is a direct link to the film and television work files in other people's video websites, and the user can directly open the film and television works of the third-party website with one click without going through the jump program, so from the perspective of network users, this behavior is essentially the act of directly providing works to the public. In Case 1, A provided a deep-link network service, which expanded the scope of dissemination of the infringing product, and should be found to be the principal offender of the crime of copyright infringement and constituted the crime of copyright infringement. In judicial practice, there are also precedents affirming that the provision of deep link services constitutes the crime of copyright infringement. For example, (1) the Intermediate People's Court of Xuzhou City, Jiangsu Province (2015) Xu Zhi Xing Chu Zi No. 13 found that the defendant Yuan X added the online broadcast function of film and television dramas to the website, and used the method of automatic collection of programs to deeply link more than 7,000 film and television works from overseas film and television websites, and made them available for users to browse online on the shrimp rolling film and television network, and published advertisements for profit; The court held that the defendant Yuan, for the purpose of making profits, disseminated his film and television works through the information network without the permission of the copyright owner, and the circumstances were particularly serious; (2) The Shanghai Yangpu District People's Court (2018) Hu 0110 Xingchu No. 150 Criminal Judgment found that the defendant Pan was responsible for writing crawler software to scrape the novel database from the Internet and store it in a rented Alibaba Cloud server, and when the user clicked to read a novel (only the title and table of contents) on the mobile app software, the crawler software grabbed the novel content required by the user from the Internet, sent it and cached it to the above-mentioned server, so that the user could read it for free. Defendant Jin XX was responsible for promoting the software and contacting advertisers to post advertisements on the APP software, and earning advertising revenue through user clicks. The court held that the defendants Jin and Pan ganged up to copy 1,024 written works for which Xuanting Company enjoyed the right to disseminate information on the network for the purpose of profit, and disseminated them to the public through the information network, and their acts constituted the crime of copyright infringement. (3) The criminal judgment of the Huarong District People's Court of Ezhou City, Hubei Province (2021) E 0703 Xingchu No. 97 found that the three defendants, without the authorization of Xiao Ming Taiji (Hubei) Guoman Culture Co., Ltd., analyzed the source code of 650 comics published on other websites on the Internet and a large number of online novels that were not authorized by the copyright owner and linked them to the above-mentioned mobile APP for netizens to watch for free, and at the same time provided paid advertising services in the APP and charged advertisers advertising fees. The court held that the defendants Cheng Dongdong, Zhao Yuxiao, and Liu Mafeng, for the purpose of making profits, disseminated other people's comics and novels to the public through information networks without the permission of the copyright owner, and the circumstances were particularly serious, and their conduct constituted the crime of copyright infringement. (4) The Xinhua District People's Court of Shijiazhuang City, Hebei Province (2020) Ji 0105 Xingchu No. 409 Criminal Judgment held that with regard to the "××××" and "××××" put forward by the defender, it only provided links and did not carry out the defense opinion of copying and distributing the infringing works involved in the case, after investigation: according to the confessions of the three defendants, when ordinary users viewed the content of the relevant works through the "××××" and "××××" apps, they did not depart from the "××××" and "××××" when they actually browsed the content of the relevant works APP, whose function is more than just the scope of the search service. Although there is no evidence in this case that the content of the relevant works is actually stored on the servers of the "××××" and "××××", the three defendants clearly knew that the services provided through their apps could allow users to browse the content of the relevant websites without leaving their apps, thus replacing the third-party websites to provide content directly to users, so their acts met the requirements of the crime of copyright infringement under the criminal law of the mainland. Therefore, the not-guilty defense opinions put forward by defenders Wu and Huang are not adopted. As to whether there was a subjective "profit-making purpose", after investigation, the three defendants all knew that the APP they participated in was a model of free reading to increase the number of clicks to earn advertising fees, so they did not accept the defense opinion put forward by the defender that the defendant did not have a "profit-making purpose". Defendants Wu XX, Huang XX, and Kang XX constituted the crime of copyright infringement. In summary, the act of providing deep link services expands the scope of dissemination of infringing works, which is "disseminated to the public through information networks" and constitutes the crime of copyright infringement. Reprinted from: Quietly Legal People's Public Account, only for learning and discussion, such as invasion and deletion, thank you.