China News Service, March 18. According to the official public account of the Shanghai High Court, the Shanghai Jinshan District People's Court (hereinafter referred to as the Jinshan District People's Court) recently concluded a criminal case involving the use of information networks to infringe copyright in accordance with the law.
Two men were sentenced for selling pirated e-books without the author's authorization.
Image source: Official public account of Shanghai High Court
Brief introduction to the case
Liu usually likes to read books and has purchased, searched and downloaded a large number of e-books online.
As the e-book resources at his disposal became more and more abundant, he came up with a profitable "business": sharing his e-book resources with members by charging membership fees.
Starting from July 2019, Liu classified the e-books he obtained into computer hard drives, established an e-book data resource website, and opened an online store to sell the above-mentioned infringing e-books externally on a membership basis.
During this process, Liu paid funds to the online platform to promote the store, and at the same time, he successively added e-books to the hard drive to keep them updated and expanded, and used robot software to push e-books on the website to members according to the membership purchase instructions.
Starting in 2020, his wife Zhang began to work as a manual customer service in the online store, managing the book lists pushed by the robot, and responsible for pre-sales Q&A and after-sales service.
In August 2022, Liu and Zhang were arrested by the police. After arriving at the case, they truthfully confessed their illegal activities.
As of the incident, there were more than 100,000 e-books in the online store, more than 10,000 registered members, more than 220,000 yuan in sales of infringing e-books, and more than 160,000 yuan in illegal profits.
During the review and prosecution period, Liu and Zhang returned their illegal gains of more than 160,000 yuan.
People's Court trial
After trial, the People's Court held that the defendants Liu and Zhang disseminated literary works to the public through information networks without the permission of the copyright owner for the purpose of profit, and the illegal gains were huge. Their behavior constituted the crime of copyright infringement.
Defendants Liu and Zhang constituted a joint crime, defendant Liu was the principal offender, and defendant Zhang played a minor role in the joint crime and was an accessory, so he should be given a lighter punishment.
Defendants Liu and Zhang truthfully confessed their crimes after arriving at the case, and may be given a lighter punishment.
Defendants Liu and Zhang voluntarily return their illegal gains and may be given a lighter punishment as appropriate.
The defendants Liu and Zhang plead guilty and accepted punishment, and showed remorse. They may be treated leniently and suspended.
The Jinshan District People's Court ruled that the defendant Liu was sentenced to three years in prison, suspended for three years, and fined 130,000 yuan for the crime of copyright infringement; the defendant Zhang was sentenced to fixed-term imprisonment for the crime of copyright infringement. One year, suspended for one year, and fined 40,000 yuan.
After the first-instance verdict, the defendants all accepted the verdict and settled the lawsuit, and the verdict is now in effect.
Image source: Official public account of Shanghai High Court
Judge's statement
Zhou Guangwang is a third-level judge of the Civil Tribunal of Jinshan District People’s Court.
Image source: Official public account of Shanghai High Court
Pirate users gain convenience from cheap or even free products, while pirate sellers gain profits. The problem of e-book piracy and infringement satisfies the selfish needs of a small number of people, but destroys the good ecological environment of publishing and brings many problems to the development of the industry.
1. Components of the crime of copyright infringement
Pirated e-books are disguised as "pseudo-win-win" but are actually infringements.
In e-commerce business activities, what are the constituent elements of copyright crime?
1. The perpetrator is subjectively intentional and aims to make profit
This does not mean that there must be immediate profits or direct economic income from it.
For example, on the surface, there is no direct economic benefit from the infringed work, but indirect income through other methods such as publishing paid advertisements, or the perpetrator has commercial purposes, but in the initial stage, it may be because of attracting "traffic", "promotion", Increasing popularity, etc., has not achieved profit, and is for the purpose of realization and long-term profit, which will not affect the determination of profit-making purpose.
2. The perpetrator has objectively committed an act that infringes on the copyright and copyright-related rights of others without the permission of the copyright owner and the copyright-related rights holder.
The "Eleventh Amendment to the Criminal Law of the People's Republic of China" adds the requirement of "communication to the public through information networks" for the crime of copyright infringement, in order to provide more comprehensive protection for copyright in the Internet era.
3. The perpetrator has a relatively large amount of illegal income or has other serious circumstances
Based on the consequences of the perpetrator's behavior, the amount of illegal income, the amount of illegal business operations, the number of copies, the number of disseminated works, the number of clicks, the number of members registered due to infringement, etc., only when the circumstances are serious shall Hold perpetrators criminally responsible.
2. The Internet is an illegal place and everyone is responsible for protecting copyright and rejecting piracy.
The logic of the intellectual property protection system is that by ensuring that property owners’ investment in innovation in the early stage can be rewarded through the market in the later stage, and encouraging people to invest in creative labor with confidence, society can continue to achieve sustained development and progress through innovation.
The development of Internet technology is a double-edged sword. Its convenience makes the dissemination of works faster and wider, but the intangibility of Internet dissemination also makes infringements less costly and the consequences of damage easier to expand.
The crime of copyright infringement in the network environment is different from the crime of traditional copyright infringement. From a behavioral perspective, the crime of copyright infringement in the network environment mainly infringes on the right to disseminate copyrighted information on the network, while traditional crimes of copyright infringement tend to infringe on the right of reproduction and distribution.
For Internet operators who make money by disseminating works, whether through direct sales, charging membership registration fees through membership, or monetizing traffic through free use, they need to ensure that they obtain the authorization of the creator. , especially the right to disseminate information online.
Business operations must generate income in a proper way. The judge here reminded that operators should not base their wealth acquisition on the basis of damage to the legal rights of others.
At the same time, we also call on the majority of netizens to consciously resist intellectual property infringements, not to covet temporary free services, ignore the harm that piracy brings to society and the market, and to jointly create a clean and upright online ecological and cultural environment.
Legal link
1. "Criminal Law of the People's Republic of China"
Article 217: For the purpose of making profits, if one of the following circumstances infringes on copyright or copyright-related rights, and the amount of illegal gains is relatively large or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not more than three years, and concurrently or solely A fine; if the amount of illegal gains is huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined:
(1) Copying, distributing, and disseminating to the public through information networks its written works, music, fine arts, audio-visual works, computer software, and other works stipulated in laws and administrative regulations without the permission of the copyright owner;
(2) Publishing books for which others have exclusive publishing rights;
(3) Copying, distributing, and disseminating to the public through information networks the audio and video recordings produced without the permission of the producers of the audio and video recordings;
(4) Copying and distributing audio and video recordings of their performances without the permission of the performers, or disseminating their performances to the public through information networks;
(5) Producing and selling works of art that counterfeit the signature of others;
(6) Intentionally avoiding or destroying the technical measures taken by the right holder to protect copyright or copyright-related rights for his works, audio and video products, etc., without the permission of the copyright owner or copyright-related rights holder.
2. "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement"
Article 5: Any person who commits one of the copyright infringement acts listed in Article 217 of the Criminal Law for the purpose of profit, and the amount of illegal gains is more than 30,000 yuan, is classified as "the amount of illegal gains is relatively large"; any person who has one of the following circumstances , which belongs to "other serious circumstances", shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention for the crime of copyright infringement, and shall also or solely be fined:
(1) The illegal business amount exceeds 50,000 yuan;
(2) Reproduction and distribution of written works, music, movies, television, video works, computer software and other works without the permission of the copyright owner, with the total number of copies exceeding one thousand (copies);
(3) Other serious circumstances.
For the purpose of profit, if one of the copyright infringement acts listed in Article 217 of the Criminal Law is carried out, and the amount of illegal gains is more than 150,000 yuan, it is classified as "the amount of illegal gains is huge"; if one of the following circumstances is met, it is classified as " If there are other particularly serious circumstances", he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years for the crime of copyright infringement, and shall also be fined:
(1) The illegal business amount exceeds 250,000 yuan;
(2) Reproduction and distribution of written works, music, movies, television, video works, computer software and other works without the permission of the copyright owner, with the total number of copies exceeding 5,000 copies;
(3) Other particularly serious circumstances.
3. "Opinions of the Supreme People's Court and the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases of Intellectual Property Infringement"
13. Issues regarding the standards of conviction and punishment for disseminating infringing works through information networks
Disseminating other people’s written works, music, movies, television, fine arts, photography, video works, audio and video products, computer software and other works to the public through information networks without the permission of the copyright owner for the purpose of profit, under any of the following circumstances: , which falls under "other serious circumstances" stipulated in Article 217 of the Criminal Law:
(1) The illegal business amount exceeds 50,000 yuan;
(2) The total number of disseminated works of others exceeds 500 pieces (parts);
(3) The actual number of clicks when distributing other people’s works reaches more than 50,000 times;
(4) Disseminating other people’s works through a membership system with more than 1,000 registered members;
(5) Although the amount or quantity does not meet the standards specified in items (1) to (4), it reaches more than half of the standards for two or more of them respectively;
(6) Other serious circumstances.
Those who commit the acts specified in the preceding paragraph, and the amount or quantity reaches more than five times the standards specified in items (1) to (5) of the previous paragraph, shall fall under "other particularly serious circumstances" stipulated in Article 217 of the Criminal Law.