On the Criminal Law Protection of Internet Intellectual Property Release Date: 2009-1-09 Article Source: Internet Author: Yu Tao Abstract Intellectual property protection under the network environment is an interdisciplinary frontier research field that has gradually emerged in recent years. With the popularization and application of computer network in China, illegal crimes are also increasing, which requires us to limit and restrain the increasingly rampant computer network infringement. A large amount of information contained in computer networks is usually of great value, which is the result of the efforts of developers or development teams in intelligence, physical strength and financial resources. In addition, the virtuality and convenience of computer network information dissemination make it necessary for the law to protect these information with intellectual property characteristics. Keywords network intellectual property; Internet intellectual property crimes; Criminal law protection section 1. Network Intellectual Property and Network Intellectual Property Crime 1. 1 The concept of network intellectual property is an exclusive right that people enjoy according to law, including industrial property and copyright. Among them, industrial property rights include patent rights, trademark rights and the right to prohibit unfair competition. Copyright includes author's right and disseminator's right (that is, neighboring right). On this basis, network intellectual property rights can be defined as: the exclusive rights enjoyed by intellectual property rights holders such as copyright owners, patent owners and trademark owners on their intellectual achievements on the Internet, that is, the right to possess, use, benefit and dispose of their intellectual property rights. Its connotation mainly includes the following aspects: First, the holder of traditional intellectual property rights enjoys the online intellectual property rights of his works under the network and computer environment, such as the author's right to the electronic text of the novel when * * * uploads it to the network. This kind of network intellectual property is based on traditional intellectual property, which is essentially an extension of traditional intellectual property under the network. Second, intellectual property rights that are completely attached to the network. In this kind of intellectual property right, the whole process of the obligee's works from creation, "publication", distribution to profit is realized on the Internet. Different from the former type of network intellectual property rights, once such rights leave the network, they will become rootless trees, and their works and rights will cease to exist. For example, the creation, distribution and profit of * * software are all conducted on the Internet (shareware). Third, the network virtual property right. Network virtual property refers to virtual goods represented by online game props, equipment, account numbers and game coins. Essentially, it is the software copyright of online game developers or network service operators. Therefore, the rights it enjoys should be attributed to network intellectual property rights. 1.2 The concept of network intellectual property crime has different expressions in academic circles. Some scholars believe that online intellectual property crimes refer to acts that seriously endanger the intellectual property rights of others by using the Internet as a tool, including criminal activities targeting the network carrying intellectual property rights. The popular expression is intellectual property crimes under the Internet environment. Some scholars believe that the crime of infringing on network intellectual property rights refers to the act of infringing on other people's intellectual property rights through the Internet and undermining the order of the socialist market economy. If the circumstances are serious, it should be punished in accordance with the provisions of the Criminal Law. According to the above definition of network intellectual property, the author thinks that network intellectual property crimes should include both "network intellectual property crimes" and "network intellectual property crimes". Therefore, we should define the crime of network intellectual property as follows: the crime of network intellectual property refers to the act of infringing on the intellectual property rights of others by using the Internet, and the circumstances are serious and should be punished according to the criminal law. 2. Status and Characteristics of Internet Intellectual Property Protection in China Although the development of the Internet in China started late, in recent years, there have been frequent cases related to intellectual property rights on the Internet in China. For example, Tudou, a video website, once encountered an embarrassing situation of one month 14 lawsuits. At the same time, due to China's special national conditions, China's network intellectual property rights are different from other countries: 2. 1 Lack of a correct understanding of network intellectual property rights infringement. In recent years, China has only begun to pay attention to the protection of online intellectual property rights, and the legal supervision of online activities is basically blank, which leads to the lack of understanding of the harm of online intellectual property infringement by netizens, or it is not surprising. In developed countries, people think it is a shame to use piracy. However, in our country, this situation is just the opposite. "shanzhai phenomenon" has become a common practice, and people regard the use of piracy as a way to save money economically. Almost everyone uses piracy, and those who pirate the fruits of others' labor are honored as "cracking heroes". The lack of cognitive psychology of group network intellectual property rights shows that the protection of Internet intellectual property rights in China has a long way to go. 2.2 The legal blank of network intellectual property infringement. The laws related to traditional intellectual property rights in China are difficult to touch the network intellectual property rights, and there is no independent legislation related to the network intellectual property rights. This phenomenon leads to two results. First, the lack of relevant laws has contributed to the arrogance of online intellectual property crimes; Second, when the obligee suffers from intellectual property infringement on the Internet, he usually does not resort to the law, but chooses private remedies. 2.3 It has become a trend that network intellectual property owners voluntarily give up their rights. A considerable number of people think that since the intellectual property rights owned under the network environment can not bring any practical benefits to themselves, the obligee may as well give up this right decisively and seek his own interests from other channels. * * * shareware is a good example. First appeared in the United States, it is a title of online intellectual property marketing. In other words, software authors will enjoy their own software online and then ask users to pay a certain software usage fee. However, the development of this method in China is difficult. The reason is that this marketing mechanism is not protected by law in China. If software users don't pay, there will be no sanctions. In this case, domestic software authors can only give up their intellectual property rights, and instead put advertisements on the software interface through professional advertisers, and divide them through the agreement between the software authors and advertisers. This is a flexible software marketing method in China. 3. Suggestions and thoughts on criminal law's involvement in network intellectual property protection * * * The flexible management mode of Lexiang software in China is only a microcosm of the current situation of network intellectual property protection in China. The network intellectual property rights of a large number of right holders are not properly protected by law, and
It is an important function of law to coordinate various conflicting social interests under the network environment and promote the harmonious and orderly operation of society. In view of the grim situation of network intellectual property protection in China, the author thinks that criminal law should be the main means. 3. 1 modify the legislative model Economic crimes are always closely related to the activities of the market economy. Under the market economy system, economic crimes take many forms. If we want to stipulate economic crimes in a unified, stable and unchanging criminal code, the ideal is beautiful, but the previous legislative practice tells us that it is difficult to do so. Therefore, scholars suggest to formulate a relatively independent economic crime law, commonly known as economic criminal law. Cybercrime and intellectual property crime have violated the order of socialist market economy, and with the rapid development of technology, they have also had constant forms of expression. Therefore, in order to maintain the stability and authority of the criminal code, it is a good choice to bring online intellectual property crimes into the scope of economic crime law. 3.2 To modify the current criminal law norms, there are the following suggestions: First, expand the scope of protection. Increase the provisions of the Criminal Law on the protection of computer software technical measures and rights management information. The forms of works protected by copyright criminal law should be gradually expanded, and digital works transformed from traditional works should be included in the protection object. Second, change "copy distribution" to "copy distribution" and add the provision of "dissemination to the public through information network", which is consistent with the copyright law. Third, the restrictive provisions on the profit-making purpose of copyright crimes should be abolished, and the behavior with profit-making purpose should be stipulated as a heavier punishment for copyright infringement crimes. Fourthly, adjust the penalty structure and attach importance to the application of fine penalty and qualification penalty. Cancel the stipulation of unlimited fine system for intellectual property crimes in criminal law, and incorporate the legislative model of double fine system in judicial interpretation into criminal law norms; Establish qualification punishment to make it applicable to network intellectual property crimes. On the basis of implementing the network real-name registration system, we can consider prohibiting actors (including natural persons and units) from accessing the network within a certain period of time, or depriving them of their qualifications to engage in network business activities within a certain period of time. 3.3 Improve the criminal judicial interpretation. Network intellectual property crime belongs to plot crime. In order to adapt the criminal law to the requirements of committing intellectual property crimes under the network environment, it is necessary to quantify the relevant contents appropriately. Under the network environment, the units of measurement such as "copy", "piece" and "piece" need to be clarified and given a new explanation. The compression, packaging and subcontracting technologies in the network environment make a traditional document may contain multiple copyright objects, or multiple documents may only contain one copyright, which needs to be further clarified. Under the circumstance that all kinds of crimes against network intellectual property rights are in the ascendant, the crackdown on crimes against network intellectual property rights in China is far from enough at present. Among them, criminal law is an important part Therefore, on the basis of integrating the existing laws, it is urgent to take certain measures in legislation and judicature to make it more realistic and feasible to crack down on the crime of infringing online intellectual property rights and better protect the legitimate rights and interests of online intellectual property owners at this stage. Reference [1] Liu Xingxing. Research on network intellectual property crimes. Lanzhou Academic Journal, No.6, 2006. [2] Tao Yuee. On the Crime of Infringement of Internet Intellectual Property. Journal of Liaoning Police College, No.6, 2005. [3] Cui and Qin Ye. Research on intellectual property crime and its countermeasures in the network age.