On 11 January 2011, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security jointly released the Opinions on Some Issues concerning Application of Laws in Handling Criminal Cases of Infringing Intellectual Property (the “Opinions”), a total of 16 articles, which further defines the jurisdiction of criminal cases of infringing intellectual property, validity of evidence collected and obtained by administrative enforcement authorities, obtaining evidence by sampling and inviting expert to give verification, determining elements of different intellectual property crimes and other issues.
Mr. Xiong Xuanguo, Vice President of the Supreme People’s Court expressed that, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security jointly released the Opinions, in view of that the criminal cases of infringing intellectual property are still relatively prevalent with increasingly new changes and features, that in the practice, the relevant laws and judicial interpretations for intellectual property protection seem to be not clear and specific enough, that the boundaries of policies and laws are not easy to grasp, and that there are quite a few difficulties in the application of law, all affecting timely and effective crackdowns on intellectual property crimes to some extent.
Concerning crimes of internet – a global concern, the Opinions, from the aspects of the illegal business volume, number of disseminated works of others, number of clicks of works, number of registered members and so on, further defines the standards of conviction as to dissemination of infringing works by internet and clearly defines jurisdiction, i.e., "locations of web server, internet access, constructer or manager of the website disseminating infringing works and marketing infringing products, places of the uploader of infringing works, place of criminal consequence that actually harmed the right holder".
The Opinions also prescribes on conviction in criminal cases of marketing products bearing counterfeit registered trademarks and sales of counterfeit representations of registered trademarks in the circumstances of no sales or partial sales: where the amount of sales and the amount of non-sales have respectively reached the limits of different prescribed punishments, the offender shall be given a heavier prescribed punishment or a heavier punishment within the limits of the prescribed punishment according to the circumstances.
The release of the Opinions demonstrates China’s determination and strength in crackdowns upon criminal cases of infringing intellectual property rights. It is also a major movement of system development in the ad hoc campaign of cracking down infringement on intellectual property, manufacture and marketing of fake or substandard goods carried out from October 2010 to March 2011 in the country.
