Comparative Study on Intellectual Property Infringement Crimes

Author: Du Guoqiang
Publisher:
Publishing Date: 2005-01-01
Features: Intellectual property is the crystallization of human wisdom and a powerful driving force for the progress of world civilization. With the rapid development of modern technology and the advent of the knowledge economy era, intellectual property has become a symbol of technological advancement and cultural prosperity for a nation and has played a pivotal role in international competition. Due to its potential for generating significant economic benefits, intellectual property is often a target for unlawful actors. Compared to traditional crimes, infringement of intellectual property, although emerging later, has been rampant in certain periods and has shown a gradual upward trend. As the number of intellectual property infringement crimes worldwide continues to increase, strengthening the crackdown on such crimes and improving criminal law protection for intellectual property have become an international trend. The international community has therefore established a series of international conventions, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 1994, which Article 61 states that "All Members shall provide for criminal procedures and penalties in cases of willful infringement of intellectual property rights on a commercial scale, at least with respect to the counterfeit of trademarks and the piracy of copyrighted works." This has raised the level of criminal law protection for intellectual property from a national legal perspective to an international legal requirement, playing a significant role in promoting and coordinating the criminal legislation and judicial activities of various countries (regions) in intellectual property.
China's criminal law legislation regarding intellectual property started relatively late. This is because China's entire intellectual property legal protection system was gradually established only after the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China. Additionally, China has long neglected the role of law, especially criminal law, in guiding, preventing, and punishing serious intellectual property infringement, focusing instead on administrative intervention and legislative measures. As a result, intellectual property protection lacked the strong tool of criminal law. The 1979 Criminal Law only stipulated one specific crime related to intellectual property infringement—the crime of counterfeit registered trademarks. Subsequently, some crimes involving intellectual property infringement were supplemented through separate criminal laws and ancillary criminal laws, leading to a scattered and disorganized state of criminal law legislation for intellectual property. Although the 1997 revised Criminal Law consolidated the various intellectual property infringement crimes scattered across different legal documents into a single section and systematically regulated such crimes, there are still many imperfections, such as a narrow scope of criminal law protection for intellectual property, obvious errors in legislative language, and the inherent generality of legal provisions, which hinder the full realization of the criminal law's protective function.
At the same time, many theoretical issues regarding criminal law protection for intellectual property urgently require in-depth research. However, domestic scholars' discussions on intellectual property infringement crimes have largely focused on judicial practice, with relatively weak research on fundamental theories. The lag in theory has led to a lag in legislation, resulting in a lack of foresight regarding the harmfulness of some serious intellectual property infringement behaviors, causing criminal legislation to always lag behind criminal phenomena. Therefore, it is necessary to conduct in-depth research on theoretical issues to guide legislative practice and establish a scientific criminal law protection system for intellectual property.
In contrast, Western developed countries were the first to establish and improve their own intellectual property legal systems and have advocated the construction of an international intellectual property protection system worldwide, offering many successful experiences and theoretical ideas worth learning from. At the same time, with China's entry into the World Trade Organization (WTO), it has become particularly urgent to improve China's intellectual property protection system (including criminal law protection) and gradually align with international standards. Therefore, it is very necessary to understand the basic situation of criminal law protection for intellectual property in Western developed countries, grasp the modernization and internationalization trends of criminal law legislation for intellectual property, and "borrow stones from other mountains" to promote China's intellectual property legal system construction. This is the very purpose behind writing this book.