BlawgDog | 博铎法豆

According to the Office of the US Trade Representative, the United States’ IPR consultation request to WTO on IPR protection and enforcement consists of FOUR aspects:

A. the high quantitative thresholds that must be met in order to start criminal prosecutions of copyright piracy and trademark counterfeiting, and this makes a "safe harbor" for pirates and counterfeiters. 

D. Chinese law appears to provide that someone who reproduces a copyrighted work without the owner’s permission is not subject to criminal liability unless he also distributes the pirated work.
OK, let’s put the United States’ complaint aside for a while, see the newly promulgated The Second Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate Concerning Some Issues on the Specific Application of Law for Handling Criminal Cases of Infringement upon Intellectual Property Rights now:

Article I: decreasing the quantitative thresholds of criminal penalties to the half of the previous interpretation.
I don’t know where is the reasonable line of  the quantitative thresholds of criminal prosecution in a state where the criminal procedure are not be arranged as a parallel means of civil damages. Every one knows that in Civil Law System, the criminal procedure is only prepared for those severe offenders. Because of the existance of "administrative law" and the corresponding "liabilities under administrative law", there is an reasonable enormous gap between the damages of civil infringement and the penalties of criminal guiltiness. The penalties issued by administrative authorities in China are mostly included in the criminal regime in those countries of Common Law System. So if one is not intended to ignore the existence of those administrative regulations, the so called "thresholds to start the criminal prosecutions" is actually NOT very relevant to the question of "whether Chinese legislation and regulation punish the piracies and counterfeitings other than civil damages." Acrtually, Chinese administrative authorities have enough provisions to strictly punish the piracies and counterfeitings. There is no  "safe harbor" in legislation. The problem is not in the legislative aspect.

In TRIPS, Article 61 is the only article relevant to criminal procedures. This article requires party members of the WTO "provide for criminal procedures and penalities to be applied at lest in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale." So what is "the commercial scale" becomes the key issue. Before the above interpretation, the number of the quantity threshold of being guilty in China is 1000 copies, while in the newest Interpretation, it dropped to 500. In EU Criminal measures IP directive (COM/2006/0168 final – COD 2005/0127), the term of "commercial scale" still needs to be defined. To solve this question, the Max Planck Institute proposed to substitute this term to the following elements:

"- Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).
– Commercial activity with an intention to earn a profit.
– Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right."

However, this is not an interpretation to the term of "commercial scale" but a proposal to substitute it. In another word, the Max Planck dose not define the "commercial scale" here but the change the standard of putting the pirates into jail from the "commerial scale" to the above elements. But in TRIPS, the treaty merely requires the member parties "at least" using criminal penalties to the pirates who are in "comercial scale".

Another question is: What reason makes the judges obtained the power to creat the standards of being guilty or not guilty? (attention, it’s not the standard of prosectution, but the standard of finding guiltiness!) I am not a professional in criminal law, but I DON’T BELIEVE that, when considering the basic principles of rule of law,  any lawyer  will think that theses standards can be of the "interpretation" but not the law by legislative organs.

Article II: interpret the expression of "duplicate distribute" (well, if you can speak Chinese, you will not feel uncomfortable when reading two verbs without any conjunctions) in article 217 of Chinese Criminal  Code as "duplicate OR distribute".

Frankly speaking, when I read the "duplicate distribute" (复制发行) in Chinese, I will add an "AND"  between the two words instinctually. But I am a lawyer, and judges are lawyers. They will not read the articles like reading novels. Article 47 of Chinese Copyright Code has clearly solved this question – it has been "OR" for years.

Now, let’s go back to the complaints of the United States. "A" and "D" are solved (or I shall say, have never ever been the real problems). How about "B" and "C"? Since I don’t know the situation of "B", only "C" will be discussed as follows.

Yes, there is censorship. But the censorship is not only to the foreign works but also to Chinese works. A work must be "legal" when it hopes to be protected by the copyright law. A work must not only be legal, but also be "correct" (or at least "not wrong") when it hopes to be published. Even a work is "not wrong" at the time of publication, it may be regarded as an illegal work afterwards. These are common sense in China. The only difference between Chinese and the foreigners is: the foreigners do not used to the new environment.