USA trade representative office, the Ministry of foreign affairs of Japan news: on October 1 (tomorrow), from USA, Japan, Australia, Canada, the European Union, South Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland delegates will attend the "anti counterfeiting trade agreement (ACTA)" signing ceremony. The controversial counterfeiters and infringement of trade agreements will be signed in Tokyo ACTA.

 

Abstract:TRIPsArticle61The first time in an international treaty requirements will have "commercial scale" counterfeiting and piracy to impose criminal sanctions,ACTAThe "commercial scale" of the criminal liability is defined as any "in order to direct or indirect economic or commercial interests and the implementation of commercial behavior". This is obviously beyond theTRIPsCriminal protection of intellectual property rights in accordance with the requirements of the criminal protection of intellectual property rights, reduce the threshold,To improve the criminal protection of intellectual property rights. Not only does this definition andWTOReport of the expert group on Sino US intellectual property dispute case of "made in commercial scale" to explain conflict, will also make the national implementation of the criminal protection of intellectual property rights according to the domestic situation of the policy space is greatly reduced.

 

Keywords: intellectual property rights Criminal protection Commercial scale ACTA TRIPs

 

A,Introduction

In the process of internationalization of intellectual property protection,1994The "agreement on trade related intellectual property rights" (hereinafter referred to as"TRIPs") is the first international treaty into the criminal procedures to protect intellectual property rights, the third part of the" enforcement of intellectual property rights "of the article5"Criminal procedure" in the only clause61All the members of the "provisions on trademark" and "pirate" behavior of criminal protection of the minimum requirements, that is, if the infringement is intentional ("Willful) ", and" (with commercial scaleOn a commercial scale"), should take the criminal sanctions to the infringement.

Early in the1993Years,1994China's National People's Congress Standing Committee have been through "supplementary provisions concerning the punishment of crimes of counterfeiting registered trademarks" and "on the punishment of the crimes of infringing copyright decision", these Provisions are incorporated into the1997Years of "criminal law" the third chapter "a crime against socialist market economy order" section seventh "crimes of infringing on intellectual property rights", the "criminal law" article213,214,215Article "serious" or "the amount of sales amount is huge," infringement of registered trademark act, No.217Article and the218"The provisions of a large amount of illicit income or other serious circumstances" to violate copyright act (i.e. "piracy") and "huge amount of illicit income" sales of infringing copies, can constitute a crime. China's accession to the World Trade Organization (hereinafter referred to as"WTO"), in order to increase efforts to crack down on criminal violations of intellectual property rights, the Supreme People's court, the Supreme People's Procuratorate respectively in2004Years12Month,2007Years4Two times a month issued "on several issues of specific application of law in handling criminal cases of infringing intellectual property rights explanation" and "interpretation of several issues about the specific application of law in handling criminal cases of infringement of intellectual property rights(Two)", the" plot "and" amount "conviction standards to make a clear explanation, further lowering the threshold of criminal sanctions violations of intellectual property rights, to ensure the implementation ofTRIPsThe provisions of international obligations.

However, in the2007Years4Month, USA is Chinese IP protection and enforcement measures toWTOThe dispute settlement body (hereinafter referred to as"DSB"), the first item will charge the China laws on intellectual property crime in the criminal threshold is too high, so that those with" commercial scale "tort can escape criminal sanctions, in violation of theTRIPsArticle41. 1Tiao Hedi61Article[1]. This isDSBAccepts the first on the issue of criminal protection of intellectual property rights in the dispute.2009YearsLMonth26Day,WTOFormally announced the ""China -- the impact of intellectual property rights protection and Implementation Measures"Report of the expert group "(WT/DS362/R),3Month20DayDSBMeeting examined and adopted the report, due to the prescribed period did not appeal, the report became the final award. It ruled that: American not confirmed Chinese intellectual property protection "criminal threshold" does not conform toTRIPsArticle6LA related set of obligations, and apply the principle of judicial economy, according to the USATRIPsArticle4l.lTiao Hedi6LArticle2That sentence the related criminal threshold without further review.[2]Although in this appeal us to China win in the end, but theTRIPsArticle61The itself in the "commercial scale", the meaning is not very clear, the expert group report on "commercial scale" interpretation uncertainties still exist, therefore, "the Sino US intellectual property rights" is not the interpretation and ApplicationTRIPsArticle61The end.

2007Years10Month, some developed countries to USA led start to "establish an intellectual property rights enforcement of the new global gold standard" of the "anti counterfeiting trade agreement" (hereinafter referred to as"ACTA") negotiations, to go beyond theTRIPsThe current international standard provisions. According to the2010Years12Month3DayACTAText[3]The core part of the agreement, the second chapter "law" enforcement of intellectual property rights in the article4Festival special provisions "(criminal law enforcementCriminal Enforcement"), a total of4Article (article23,24,25,26A).

So,ACTAIncrease in extentTRIPsThe provisions of the law enforcement level of criminal protection of intellectual property rights? Especially in the criminal enforcement threshold andTRIPsCompared with higher? Sino US intellectual property rights disputes ifACTAThe framework of the trial, the results would be quite different? Future China intellectual property protection in the criminal legislation and law enforcement should be how to deal with theTRIPsThe challenges of the times? This paper tries to make analysis.

　　

Two,In the case of Sino US intellectual property rights disputesTRIPsArticle61Under the "commercial scale" meaning

1American, view

In the Sino US intellectual property rights disputes, America in criminal law enforcement threshold issues not fromWTOThe expert group to get the answer and the result, therefore, must try various devices to from other ways to achieve their goals -- andACTAPerhaps is a shortcut. Therefore, understanding America demands in the Sino US intellectual property rights disputes cases of criminal law enforcement part, may help us to know more clearly America LEDACTAIn the "criminal law" provisions of the significance.

Sino US intellectual property rights disputes relating to criminal law enforcement threshold controversy, the focus is: Chinese law constitute the crime of infringing upon intellectual property right "plot", "the amount" and other standards are in breach ofTRIPsOn the implementation of the criminal sanctions has "commercial scale" tort obligation?

TRIPS Under Article61The first sentence of clearly defined:"Members of the party should at least on a commercial scale counterfeiting and piracy,Provide for criminal procedures and penalties to be punished." According to the point of view, "criminal law" provisions Chinese made certain according to theTRIPSArticle61The first sentence should be the subject of intellectual property infringement punishment not affected by treatment. Specifically, is the "criminal law" and the relevant judicial interpretation provides a "safe harbor", some "commercial scale" counterfeiting, piracy escaped criminal punishment, shown in two aspects: one is the "criminal law" provisions China on several trademark counterfeiting and piracy and the implementation of criminal proceedings criminal penalties, but these criminal responsibility only in "serious", or "a relatively large sales volume", or the "amount of illicit income bigger" or "huge amount of illicit income" of the case to be dealt with. The implication is: the plot is not serious, although the amount is not large or not huge, but it still belongs to the "commercial scale" situation will escape criminal liability. The two is to the above terms for "serious", "big" and "great" and other terms, by the judicial interpretation on the basis of "illegal business volume" defining. And to "illegal business amount" as the standard of prosecution, the infringing products value usually in the "actual sales price", "price of the infringing products or have found the average actual sales price" to calculate the. That is to say, "illegal business amount" depends on the infringing products price rather than the corresponding legal products price. Infringing products price or the actual price is lower, the infringer to "illegal business volume" punishment from the standard (and be held criminally responsible) before the sale or supply of infringing products are more. The implication is: many commercial scale tort, probably because of its low price, to achieve the criminal standard. Therefore, the United States that, in Chinese of trademark counterfeiting and piracy, if commercial scale has but have not reached the threshold requirements, it shall not be subject to sanctions, it obviously does not meet the Chinese inTRIPsArticle41Article1Paragraph and article61Should bear the obligations under the provisions of.[4]

The accused is founded on its own toTRIPsArticle61Above is about "commercial scale" infringement behavior understanding. America in the first written statements summary of25Put forward: "commercial scale" tort covers both commercial tort for profit purpose of implementation in the market(This kind of management behavior often has a certain scale)Again, including those to a certain extent or size of behavior,Whether the infringer what motive or purpose.[5]The former refers to the commercial activity has profit, the latter refers to a considerable influence in the commercial behavior -- the key is to look at the right people potential commercial interest is caused by the infringement of the act itself, regardless of whether a profit objective.[6]

As can be seen, first of all, the United States for "commercial scale" understanding is to analyze from the perspective of qualitative, rather than quantitative analysis from the point of view, that is "commercial", rather than "scale", even think that as long as it is with commercial sexual behavior means is a certain commercial scale behavior, which means: as long as it is a for-profit or commercial behavior, regardless of its business scale, can constitute a crime. Secondly, in the tort is not for profit or commercial cases, the Americans tried to "quantitative" or "degree" perspective to judge infringement is "commercial scale", but this time not from the infringement of business scale and profitability to judge the "scale", but from the rights of the people loss of or affected by the degree of (the so-called "influence") to judge the "scale", this is further supplement and the consummation of the front that qualitative, its purpose is clearly to put as much as possible tort in one fell swoop nets into the scope of criminal punishment.

Therefore, in the eyes of the Americans, the quantitative formula about the crimes of infringing on intellectual property rights into sin threshold China legal standards must be a loophole for infringing products ", according to the actual sales price" to calculate the value of the tort is unable to understand and accept, so of course they toDSBFiled a lawsuit.

2Identification, expert group

Objectively speaking, USA have "commercial scale" tort interpreted as having a "commercial" or "profit" tort, it is not reasonable, however, this explanation is notTRIPsArticle61The most reasonable explanation about the meaning of "commercial scale".

The expert group found,"The mix of business" and "scale" is a word that, "commercial" should be a number rather than the nature of word. Because the "scale" is a relative concept, "business" is restricted to "scale" size. Can not be "commercial scale" (quantitative concepts) just as "business" (qualitative).TRIPsArticle61The lowest standard penalty clause is "commercial scale" counterfeit or pirated behavior rather than just "commercial" counterfeit or pirated behavior. Therefore, the panel finds that, "commercial scale" refers toThe amount or extent or typical commercial behavior usually have (The magnitude or extent of typical or usual commercial activity). With "commercial scale" counterfeit or pirated refers to: the quantity or degree of a product in a market of counterfeit or pirated behavior has the commercial behavior of typical or usual should have. Identification of specific products in a certain market of counterfeit or pirated in what kind of situation to "commercial scale", the product on the market depends on the amount or degree, which is a typical or usual, the typical or usual quantity or degree is a great little. In short, on a commercial scale behavior is not only a commercial sexual behavior, also have certain quantity and degree of commercial behavior,Both qualitative requirements, as well as quantitative requirements. Therefore, eachWTOMembers in the implementation ofTRIPsArticle61The provisions of the standard "commercial scale", have a lot of policy space, can make a special explanation of their.[7]

The criminal law China has stipulated the criminal responsibility of trademark counterfeiting and piracy in certain circumstances and the amount standard of infringement cases, and America although he claimed that this standard is too high, but not in the Chinese constitute counterfeit or pirated crime "commercial scale" end should be defined as the number of how many is reasonable, therefore, there is no clear evidence to prove that the law is not in conformity with the ChineseTRIPsTo require a "commercial scale" counterfeiting and piracy of criminal responsibility, so the group of experts on the issue American lost judgment.

As some scholars have pointed out, according to the "Vienna Convention on the law of treaties" article31On the treaty interpretation rules,TRIPsArticle61The first sentence of "commercial scale" in the usual sense of the means that a certain number of definition, this is the United States also have to admit.[8]However, the United States has accused of setting the number of standard Chinese legal intellectual property crime (the so-called "threshold") is too high, to create a safe harbor the threshold for the pirates, the pirates can easily obtain asylum in there -- if according to this logic, even China law crimes of infringing on intellectual property rights "threshold" drop to low, the pirates will still have certain space "safe harbor" asylum. Unless the harmfulness of crime does not set any standard size and threshold, not only has the "safe harbor" -- but this is obviously not reasonable, basic function and criminal sanctions against harmful acts of serious. Even American law of copyright infringement crime also has the quantity standard, such as America copyright law article506A (A) on criminal infringement on the provisions of the pirated goods retail value1000The dollar threshold[9].

 

Three,ACTAIntellectual property rights protection of criminal new threshold setting

ACTAArticle23-26The provisions of the "criminal law", look from the structure ofTRIPsArticle61Extension and refinement of the provisions of the content, but beyond theTRIPsCriminal protection provisions, mainly displays in four aspects:

First, on theTRIPsObligations defined and explained further, such as the23Article1Section defines the definition of "commercial scale", clear the neighboring rights piracy can also be held criminally liable, on the23The first explanation clarified the import and export of counterfeit or pirated products may be prosecuted for criminal responsibility.

Second, strengthenTRIPsObligations, such as Article24The provisions of punitive measures, such as imprisonment and a fine, high enough to curb the "future violations". This seems to imply that if a country's penalty to tort case, you need to constantly strengthen the punishment dynamics.

Third, the abolition of theTRIPsElastic obligations, such as Article25The seizure, confiscation, destruction of the infringing products obligations made mandatory, but no longer is the elasticity of demand.

Fourth, increase the criminal sanctions for new content, such as the23Article2Provisions for commercial scale deliberately imports and domestic use labels or packaging, the label or packaging unauthorized containing the same as or similar to a registered trademark logo, and the label or packaging will be used in the identification of the goods on which the registered trademark or service the same commodity trading or related service process in the implementation of criminal sanctions obligations, article23Article3Paragraph to show in the open to the public film exhibition in the unauthorized copying of films, the implementation of the criminal sanctions obligations.

We can find that: American inWTOThe dispute settlement body did not achieve the purpose, in order toACTAIn order to achieve. Here, the most typical is about the definition of "commercial scale".

In theACTAThe2010Years1Months and4On the text, once made a definition for "willful piracy" commercial scale, including two cases:

(A) has obvious intentional infringement of copyright and neighboring rights behavior, even if it has no direct or indirect profit motive; and

(B) to commercial interests or profit purpose of infringement of copyright and neighboring rights behavior.

     This definition means that as long as it is with "significant purpose" infringement "and is in the interest of business to or personal gain" infringement, all may be prosecuted for criminal responsibility.TRIPsArticle61The provisions of the "commercial scale" itself is an open concept, however, this definition is the members according to its own domestic social and economic situation to define the concept of policy space to significantly reduce the. This is in fact to fightWTOThe expert group adopted in the Sino US intellectual property rights disputes in the case according to the specific market and product specific to define "elastic approach to commercial scale". According to this definition, the counterfeit or pirated has number of "commercial scale" requirement, a qualitative standard even is the subjective (with "profit" or "apparently deliberately"), which isWTOGroup of experts on the negative in the Sino US intellectual property dispute cases interpretation.

    Perhaps the explanation is too starkly reflect American requirements, in theACTAIn the final text, correcting the definition of relevant "commercial scale", according to the2010Years12Month3Japanese text:

    In the "criminal law" in this section, on a commercial scale implementation of the behavior of commercial behavior includes at least the direct or indirect economic or commercial interest in the.

We guess, this definition is largely from the EU. In the European Union2004Years4Month29Promulgated2004/48/ECOn the enforcement of intellectual property rights, "instruction" "given" clause14The provisions:

On a commercial scale implementation of the act is the direct or indirect economic or commercial interests to the implementation of the act, but it generally does not include the final consumer behavior based on good faith implementation.[10]

ComparisonACTAAnd the EU directive English text, the two can be found expressed very close.

And2010Years1Compared with the month text,ACTAThe final text of the definition of "commercial scale" the biggest change is removed by "was deliberately" behavior to define "commercial scale" behavior is obviously unreasonable practices, but basically retain a "business purpose" to define the "commercial scale" ideas -- change is: the "in order to indirect commercial interests" behavior also incorporated with a "commercial scale" behavior of the category, but dropped the "to (personal) profit" and the implementation of the act, because if the "personal gain" behavior shall be investigated for criminal responsibility may be associated with the EU directive to "save the final consumer" conflict.

As can be seen, thoughACTAThe definition of "commercial scale" at the end of the text to make the correction, and the original text compared to narrow the scope of a commercial scale behavior, however, there is no doubt, andTRIPsArticle61Compared, this definition is still greatly expanded the "commercial scale" meaning, reduce counterfeiting and piracy criminal threshold.

First of all, as mentioned before, the "commercial scale" this quantity requires an understanding of requirements for the "business purpose" the qualitative, will make any "business purpose" but did not achieve "commercial scale" counterfeit or pirated behavior are likely to be investigated for criminal responsibility, which greatly reduces the criminal protection of intellectual property rights threshold.

Secondly, the "indirect economic and commercial interests" behavior into has "commercial scale" behavior of the category, there may be investigated for criminal responsibility for some does not have direct or indirect profit motive and purpose of the act, which further reduces the protection of intellectual property rights of the criminal threshold. For example, some Internet users to download the copyright protection content without authorization, because he does not need to pay any fees, so can be understood as: he won the indirect economic benefit, then in accordance with theACTAThe above provisions, he is likely to be investigated for criminal responsibility.

In a word,ACTAFinally, Wen Bendi23On the definition of "commercial scale" although in line with the developed countries, the EU and the area America idea, however, apparently with theWTOGroup of experts on the Sino US intellectual property rights disputes in the case ofTRIPsArticle61"Commercial scale" in the interpretation of the meaning of different. Once you joinACTAA country can no longerTRIPsStandard to the provisions of the criminal protection of intellectual property rights of the threshold, but only toACTALower standard to the provisions of trademark counterfeiting and piracy criminal threshold.

Therefore, we in the introductionQuestion: Sino US intellectual property rights disputes ifACTAThe framework of the trial, the results would be quite different? Have a clear answer: China is to a large extent will lose.

 

Four, conclusions and recommendations

TRIPsArticle61The first time in an international treaty requirements will have commercial scale counterfeiting and piracy to impose criminal sanctions,ACTAThe elements of "criminal responsibility" commercial scale "is defined as any to direct or indirect economic or commercial interests and the implementation of commercial behavior". This is obviously beyond theTRIPsCriminal protection of intellectual property rights in accordance with the requirements of the criminal protection of intellectual property rights, reduce the threshold,To improve the criminal protection of intellectual property rights. Not only does this definition andWTOExpert group expert group report on Sino US intellectual property rights disputes cases of "made in commercial scale" to explain conflict, will also make the national implementation of the criminal protection of intellectual property rights according to the domestic situation of the policy space is greatly reduced.

We can foresee, the developed countries America, EU and Japan, will apply pressure to include China and other trading partners, the admission requirementsACTAThis international intellectual property enforcement of the new standards, or by directly addingACTAThe way into the new standard, the substantive or will in the future free trade agreement. In this regard, we are ready for it.

First of all, we can according to theTRIPsThe existing international standards andWTOThe authority of adjudication experts group of developed countries to put their own IPR criminal protection standard foist one's opinions upon others practice for defense and resist the reasonable. We should not only stick to the criminal responsibility not to investigate for non-commercial behavior did not profit, but also to the commercial behavior must reach a certain size. Otherwise, if in accordance with theACTARequirements, we have to thoroughly revised law of criminal protection of intellectual property in current.

Secondly, we should recognize that the criminal legislation on the protection of intellectual property China level has reached the international standard in general, even byACTAThe highest requirements, also does not have a big gap, even superior in some respects to theTRIPsAs well asACTARequirement. For example, Chinese for the elements of the crimes of infringing on intellectual property rights, in addition to selling counterfeit trademark goods and the crime of selling infringing copies required subjectively aware of, are not "deliberately" constitutive elements of tort, in the conviction threshold was significantly lower than the international standard; in addition, China's "criminal law" of patent counterfeiting, violating commercial secrets act provides for criminal liability, which is beyond the international obligations.

Finally, in the future amendment of law and judicial interpretation, we can consider a suitably modified calculation method at present in the relevant provisions not entirely reasonable. For example, in order to "illegal business volume" to determine the crime "plot", if the suspect does not provide the infringing products sales price or the price is difficult to confirm, can be determined according to the market value of the infringed products.