China Issues New Rules on the Handling of Intellectual Property Infringement Cases

On January 10, 2011, the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security of the P.R.C. issued and made effective the “Opinions on Several Issues Concerning Application of Law in Handling Criminal Cases of Intellectual Property Rights Infringement” (the “Opinions”). The Opinions consist of 16 articles covering a wide variety of intellectual property rights issues, including the determination on the jurisdiction of criminal cases of intellectual property rights infringement, as well as evidence collection and evaluation in the handling of such cases. 

With regard to trademark crimes, the Opinions defines the “same product” and the “trademark identical to the registered trademark” as set forth in Article 213 of the Criminal Law of the P.R.C (the “Criminal Law”). The Opinions also define the elements copyright infringement crimes, such as “for the purpose of making profits” and “without permission of copyright owner”.

The Opinions also contain certain articles specifically applicable to online copyright infringement. In regards to what constitutes “distribution” as set forth in Article 217 of the Criminal Law, the Opinions defines distribution of infringing content to include the act of “…transmit[ting] through the Internet…” and stipulates that such acts could, in certain circumstances, constitute the crime of copyright infringement. The Opinions also define “other serious circumstances” in the criminal prosecution of acts of transmitting infringing works over the Internet, as set forth in Article 217 of the Criminal Law. These defined circumstances include “transmitting an aggregate quantity of more than 500 pieces of others’ works” or “[w]here others’ works being transmitted have been actually clicked on more than 50,000 times”.

The issuance of clearly defined guidelines for establishing a criminal prosecution for infringing acts is another step towards building a better legal structure for IPR protection in China.

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