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China’s Copyright Protection Strengthened by Amendment to Criminal Law

The Amendment to P.R.C. Criminal Law (IX) (hereafter, the "Amendment to Criminal Law") effective as of November 1, 2015, added the following key provisions for copyright protection: Article 287-1 and Article 287-2 of the Amendment to Criminal Law. Details are as follows:

Article 287-1 [Offense of Illegal Use of Information Networks]

whoever commit one of the following acts, with serious circumstances, by using information networks, is to be punished by a sentence of imprisonment for not more than three years or detention, and/or a fine:

(I) Establishing a web site or communication group for the purpose of committing offensive or criminal activities such as fraud, teaching criminal means, producing or selling contraband or controlled articles, etc.;

(II) Dispatching information regarding making or selling contraband or controlled articles    such as narcotic drugs, firearms, obscene articles etc., or other offensive or criminal   
information;

(III) Publishing information for the purpose of committing offensive or criminal activities such
 as fraud etc.

Organization which commits any offense(s) pursuant to preceding paragraph shall be sentenced with a fine, and its direct executives in charge and other personnel directly responsible for the offense shall be punished pursuant to the provision under the Paragraph 1.

A person who commits any of the acts pursuant to the preceding two paragraphs and constitutes other offense(s) at the same time shall be sentenced and punished pursuant to the provision that has heavier  punishment.

Article 287-2 [Offense of Contributing Information Network Criminal Activities]

 Whoever knowingly provides Internet access, server hosts, network storage, communication transfer and other technical supports to others who are utilizing such information networks to commit a crime, or provide advertisement promotion, payment settlement and other assistances for such crime, and with severe circumstance, is to be punished by a sentence of imprisonment for not more than three years or detention, and/or a fine;

Organization which commits any offense(s) pursuant to preceding paragraph shall be sentenced with a fine, and its direct executives in charge and other personnel directly responsible for the offense shall be punished pursuant to the provision under the Paragraph 1.

A person who commits any of the acts pursuant to the preceding two paragraphs and constitutes other offense(s) at the same time shall be sentenced and punished pursuant to the provision that has heavier  punishment. Through these two new provisions in the Criminal Law, China further furnishes protection for copyright. Article 287-1 is meant to incorporate preparatory acts into the scope of punishment. For example, acts such as publishing information of recruitments, adverts or catalogues of pirated books etc. for the purpose of committing a copyright infringement which have not yet actually constituted an infringement of are only preparatory acts in the prior stage. The infringement to the copyright has not accomplished. Such acts can be determined as "Offense of Illegal Use of Information Networks" pursuant to Paragraph 3, Article 287-1 after the effectuation of this Amendment to the Criminal Law.

As for Article 287-2, it is so regulated to punish an accessory offender as the principal offender. For example: by knowing others’ utilization of information networks to commit an offense of copyright infringement, a person who still provides Internet access, server hosts, network storage, communication transfer and other technical supports for such criminal activities, or provide advertisement promotion, payment settlement and other assistances can only constitute a joint offense along with the direct act of infringement to copyright where such a person would be determined only as a abettor (in a secondary or accessory position) according to the pre-amendment Criminal Law. However, after the effectuation of this Amendment, such act can be directly determined as "Offense of Contributing Information Network Crimes" pursuant tos Article 287-2 of the Criminal Law. Namely, it is to  "Normalize contributory acts as principally offensive."


for any questions relating to this topic, please contact us at  cjchen@tsailee.com.tw

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