Author Information

Wan Yong, Professor, Renmin University of China Law School

Chu Yizhou, Ph.D. Candidate, Renmin University of China Law School

Abstract

The Amendment XI to the Chinese Criminal Law adds a sixth item to Article 217, which includes direct circumvention of technological measures in the scope of criminal law. The Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Involving IPR Infringement clarifies that the indirect circumvention of technological measures is an offence of the crime of copyright infringement and specifies the criteria for its criminalization. However, the theoretical dispute about whether indirect circumvention of technological measures falls within the scope of the “circumvention of technological measures” clause of the crime of copyright infringement has not been determined, and the elements of application of the clause urgently need to be clarified. The “circumvention of technological measures” clause in the crime of copyright infringement does not cause interpretation conflicts both within and outside the criminal law and is the optimal solution for the current legislative approach. In application of the “circumvention of technological measures” clause, emphasis should be placed on the examination of these five elements: object, act, subjectivity, objectivity, and exemptions circumstances.

Keywords: crime of copyright infringement; circumvention of technological measures; criminal enforcement of intellectual property rights