The crime of selling infringing reproductions refers to the sale of literary works, music, television, television, video recordings, computer software, books and other works, as well as works of art that impersonate the signature of others, for the purpose of making profits, and obtaining a huge amount of illegal gains, knowing that they infringe on the copyright of others or exclusive publishing rights.
(i) Provisions of the Penal Code
Article 218 [Crime of Selling Infringing Copies] Whoever, for the purpose of making a profit, sells an infringing copy that is known to be an infringing copy provided for in Article 217 of this Law, and the amount of unlawful gains is huge or there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than five years and shall also be fined or fined individually.
(2) Determination of the present crime and the non-crime
It can be examined from three main aspects:
1. See whether the actor knows that the sale is an infringing copy, and if he does not know it, even if there is serious negligence, it does not constitute a crime.
2. Depending on whether the object of its sale is an infringing copy under this Law (as specified in Article 217), it does not constitute a crime if it does not belong to the above objects.
3. Look at the size of the amount of illegal income from its sales, if the amount is not huge, even if there are other serious circumstances, it does not constitute a crime.
(c) the boundary between this offence and the offence of copyright infringement
1. The main body elements are different. The subject of the crime of selling infringing copies can only be a natural person or unit other than the producer of the infringing copy, and the subject of the crime of copyright infringement is generally the producer, and sometimes it may be the distributor or seller who conspires with the producer.
2. The objective aspects of crime are different. The crime of selling infringing copies is objectively manifested as the act of selling infringing copies and the amount of illegal gains is huge; the way of the crime of copyright infringement may be reproduction, distribution or publication, or production or sale, and the amount of illegal gains is large or there are other serious circumstances, which constitutes a crime. In practice, if an actor commits an act of infringing copyright or copyright-related rights and interests that constitutes a crime, and then sells infringing copies he has produced and the amount of illegal gains is huge, the latter act is an impuntable post-act in theory of criminal law, and he is punished only as the crime of copyright infringement, and can no longer be convicted of the crime of selling infringing copies and is punished for several crimes; if the infringing copies sold by the actor are not infringing copies made by himself, and the two acts meet the requirements of the amount or circumstances constituting the crime, If the perpetrator of the sale of infringing copies conspires with the perpetrator of the crime of copyright infringement in advance, he shall be punished as a crime of copyright infringement, which is a joint crime.
(i) Subjective aspects
This crime is subjectively manifested as intentional and for profit. This requires that the perpetrator must know that the copy is infringing and still sell it in order to constitute this crime. "Knowing" includes two situations: "knowing that it must be" and "knowing that it may be", as long as the perpetrator has one of these circumstances, it can be considered to be "knowing", and "knowing" cannot be limited to "knowing", so as not to indulge the criminal. For the determination of "knowingly knowing", it should not be based solely on the confession of the perpetrator, but should be comprehensively analyzed and judged based on the overall situation of the case, especially the source channel of the infringing copy, the price of the actor's purchase and sale, and other objective facts. This offence does not constitute this offence if the perpetrator sells it out of fault and does not know that it is an infringing copy.
(ii) Subject matter
The subject of this crime is the general subject, and all natural persons who have reached the age of criminal responsibility and have the capacity for criminal responsibility can constitute this crime, and according to the provisions of article 220 of this section, the unit can also become the subject of this crime, and if the unit commits this crime, a two-penalty system shall be implemented, that is, both the unit shall be fined, and the directly responsible supervisor and other directly responsible personnel shall be investigated for criminal responsibility. It should be noted that the subject of this crime should refer to other natural persons or units other than the producer of the infringing reproduction. If the producer of the infringing reproduction carries out the sales act himself, it constitutes the crime of copyright infringement rather than this crime. Of course, the perpetrator of the sale of the infringing copy may also jointly constitute the crime of copyright infringement with the perpetrator of the infringing copy and not the crime of this crime.
(iii) Objective aspects
This crime is objectively manifested as the sale of infringing copies, and the amount of illegal gains is huge.
Sales is the specific content of the objective acts of this crime, sales only refers to the sale of infringing copies to consumers, and non-profit-making acts cannot constitute the crime of selling infringing copies. If the perpetrator is not selling but giving, lending or buying for his own use, etc., this offence is not characteristic. It should be noted that the understanding of "sales" here should not be too narrow, such as the act of "selling", and the large number of infringing copies rented for profit should also be regarded as a "sale" to prevent criminals from escaping responsibility. In order for the perpetrator to sell infringing copies, the amount of illegal gains must be substantial in order to constitute a crime. According to the spirit of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Decision of the Standing Committee of the National People's Congress on The Punishment of Crimes of Copyright Infringement, the amount of illegal income is huge, which means that the amount of illegal income of individuals is more than 10,000 yuan or the amount of illegal income of units is more than 100,000 yuan. The amount of illegal gains that do not meet the above criteria shall not constitute this crime. Infringing reproduction is an article "sold" in the crime of selling infringing reproduction, which is copied, published and produced under the circumstance of infringing the legal rights of others' copyright, exclusive publishing rights, etc. For the sale of works that are used within the reasonable scope provided for in the Copyright Law, such as translating or reproducing a small amount of published works for school classroom teaching or scientific research, whether it constitutes the crime of selling infringing copies. In our view, whether such an act constitutes the crime of selling infringing copies, the following two points should be noted:
(1) The amount of illegal gains. If only a small number of copies are sold, and the amount of illegal gains is not large, it does not constitute the crime of selling infringing copies, and administrative penalties may be imposed.
(2) The nature of the legal copy is transformed, the legality of the copy is generally subject to certain conditions, beyond the scope of fair use, the nature of the legal copy is transformed, it is no longer legal, such as in accordance with the Copyright Law, for school classroom teaching or scientific research, it is legal to turn or copy a small amount of published works, but these works can only be used by teaching or scientific research personnel, if published and distributed, it is illegal, so beyond the scope of fair use to sell the relevant copies, the amount of illegal income is larger, Penalties shall be imposed on the basis of the sale of infringing copies.
(iv) Subject matter
The object of infringement in this crime is the copyright management system of the state and the copyright and copyright-related rights and interests of others, which is the same as the object of copyright infringement. The difference between the two is that the infringement of this crime is indirect, that is, the infringement of the copyright and copyright-related rights and interests of others is directly caused by illegal reproduction, publication or other production, and the seller's sales act is only a continuation of the above-mentioned direct infringement, or a kind of help to the direct infringement. Because of this, the harm is relatively smaller than that of copyright infringement.
The object of this offence is an infringing reproduction. The so-called infringing reproductions, in accordance with the provisions of this Article, mainly refer to written works, music, films, television, video works, computer software and other works that are reproduced and distributed without the permission of the copyright owner, books published without authorization by others with the right to publish, and at the end with the permission of the producer of audio and video recordings, the reproduction and distribution of audio and video recordings produced by them, and fine art works that impersonate the signature of others.
(1) Notice of the Supreme People's Procuratorate and the Ministry of Public Security on Printing and Distributing the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (I) (2008)
Article 27: [Cases of Selling Infringing Copies (Criminal Law Article 218)] Whoever, for the purpose of making a profit, sells a counterfeit product that is known to be an infringing copy provided for in Article 217 of the Criminal Law, and is suspected of any of the following circumstances, shall be prosecuted by filing a case:
(1) The amount of illegal gains is more than 100,000 yuan;
(2) Although the amount of illegal gains does not meet the above amount standards, the value of the infringing reproductions that have not yet been sold reaches 300,000 yuan or more.
(1) Provisions of the Shanghai Higher People's Court on Several Issues Concerning the Unified Trial of Civil, Administrative and Criminal Cases of Intellectual Property rights by the Intellectual Property Tribunals of Basic People's Courts (for Trial Implementation) (2008)
(3) Criminal cases of intellectual property rights heard by the Intellectual Property Trial Division of the basic level people's courts, including cases in which public prosecution or private prosecution is initiated on the following charges: the crime of counterfeiting a registered trademark, the crime of selling goods with a counterfeit registered trademark, the crime of illegally manufacturing or selling illegally manufactured registered trademark marks, the crime of counterfeiting patents, the crime of copyright infringement, the crime of selling infringing copies, and the crime of infringing trade secrets.
(2) Notice of the Second Criminal Division of the Shanghai Higher People's Court and the Public Prosecution Department of the Shanghai Municipal People's Procuratorate on Printing and Distributing the Opinions on How to Apply the Law in Cases of Trafficking in Pirated CDs (for Trial Implementation) (2006)
I. Characterization of trafficking in pirated CDs
According to the spirit of the Reply of the Supreme People's Court and the Supreme People's Procuratorate on Handling Issues Related to Audio and Video Recordings in Criminal Cases of Copyright Infringement, the act of selling pirated CDs shall be convicted and punished for the crime of selling infringing copies in accordance with the provisions of Article 218 of the Criminal Law; if the perpetrator also has the act of reproducing pirated CDs, he shall be convicted and punished for copyright infringement in accordance with the provisions of Article 217 of the Criminal Law.
2. Determination of the completion of the act of selling pirated CDs
According to the provisions of the Criminal Law and relevant judicial interpretations, combined with the specific circumstances of judicial practice in our city, for the illegal income from the sale of pirated CDs reaches more than 100,000 yuan, or the pirated CDs have been sold up to 1. Where there are more than 50,000 copies, criminal liability may be pursued for the crime of selling infringing copies, except where there is evidence that the illegal gains are clearly less than 100,000 yuan.
3. Determination of attempted trafficking in pirated CDs
According to the provisions of the Criminal Law and relevant judicial interpretations, as well as the actual need to punish the crime of selling infringing copies, it is impossible to find out whether the illegal income from the sale of pirated CDs does not reach 100,000 yuan or the illegal gains, but there is evidence to prove that the sum of the number of pirated CDs sold and to be sold reaches more than 30,000, or the number of pirated CDs seized reaches 30,000 or more, the crime (attempt) of selling infringing copies may be convicted and punished, and the number of pirated CDs sold by the perpetrator may be considered as a discretionary aggravating circumstance.
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