Draft Judicial Interpretation Several Issues of Criminal Cases

DRAFT
Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues in the Concrete Application of the Law in Handling Criminal Cases of Intellectual Property Infringement

Adopted at the 1422nd Meeting of the Adjudication Commission of the Supreme People’s Court and 75th Meeting of the Supreme People’s Procuratorate April 4, 2007; effective April 5, 2007

To maintain order in the socialist market economy and the punish criminal acts of infringement of intellectual property in accordance with the law, several issues regarding the concrete application of the law in the handling of criminal cases of intellectual property infringement are hereby interpreted as follows in accordance with applicable provisions of the Criminal Code and the Criminal Procedure Code.

Article 1. Where for profit-making purposes and without the permission of the copyright owner there is reproduction and distribution of a literary work, a musical, cinematographic, television, or video recording work, computer software or other works, and the total quantity of reproductions is 500 units or more, this shall constitute “other serious circumstances” pursuant tot Article 217 of the Criminal Code; where the total quantiy of reproductions is 2500 units or more, this shall constitute “other exceptionally serious circumstances” under Article 217 of the Criminal Code.

Article 2. For the purposes of Article 217 of the Criminal Code, the term “reproduction and distribution” means reproduction and/or distribution.

Promotion of infringing products by the holder of the infringing products by means of advertisements, solicitation of subscription, etc., shall constitute “distribution” under Article 217 of the Criminal Code.

If anyone illegally publishes, reproduces and/or distributes another person’s work and such copyright infringement constitutes a crime, that person shall be convicted and punished for the crime of copyright infringement.

Article 3. If an intellectual property crime meets the conditions for suspended sentences as provided under the Criminal Code, the punishment shall be suspended in accordance with the law. In any of the following circumstances, suspended sentences shall generally not be applied:
(1) Where, despite the prior application of a criminal or administrative penalty for intellectual property infringement, another infringement of intellectual property which constitutes a crime takes place;
(2) There is no indication of remorse;
(3) There is refusal to give up the illegal income;
(4) Other circumstances where it is not appropriate to suspend sentences.

Article 4. In determining the fine for intellectual property crimes, the People’s Courts shall comprehensively take into account the illegal income, the illegal turnover, the damage caused to the rights owner, the harm to society and other circumstances of the crime. The amount of the fine shall generally range from one time up to five times the illegal income or 50 percent up to one time the illegal turnover.

Article 5. If the victim has evidence to prove an intellectual property crime and directly files a complaint with the People’s Court, the People’s Court shall accept the case in accordance with the law; where intellectual property crimes poses serious harm to social order and the interests of the nation, the People’s Procuratorate shall file a public prosecution in accordance with the law.

Article 6. If a unit engages in activities that constitute a crime under Articles 213 to 219 of the Criminal Code, it shall be convicted and sentenced in accordance with the corresponding criteria for individual offenders set forth in the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues in the Concrete Application of the Law in Handling Criminal Cases of Intellectual Property Infringement and this Interpretation.

Article 7. In the event of any conflict between prior judicial interpretations and this Interpretation, this Interpretation shall apply.

DRAFT