Di Wu and Teresa Huang
Case facts: In May 2017, Damou Vision Culture Media Co., Ltd. (hereinafter, “Damou Vision”) was established with Zhang XX, Li XX, Liu XX, and Ma XX in charge of the company’s operation as its supervisors. In May 2018, Damou Vision developed a video playback application called “Damou Vision” for operation on the Internet. After the program was launched, the company downloaded and edited a large number of domestic and overseas films without the permission of the rights holders, provided them for viewing by users through the video application, and charged membership fees for profit. On January 10, 2020, a public security agency apprehended Zhang and three other individuals. After the background data were extracted and examined, it was found: the infringing films edited and uploaded by the “Damou Vision” application include 302 copyrighted works of the member companies of the Motion Picture Association of America, which were viewed more than 420,000 times and downloaded more than 19,000 times by users; 70 copyrighted works of Tencent, which were viewed more than 81,000 times and downloaded more than 4,000 times by users; and Damou Vision had over 830,000 registered users with more than 90,000 top-up payment orders and more than RMB 1.4 million in payments.
In December 2019, the Shenzhen Municipal Market Inspection Bureau of Guangdong Province found that the “Damou Vision” application may be suspected of criminal offenses and informed the People’s Procuratorate of Nanshan Shenzhen (hereinafter, the “Nanshan Procuratorate”) of the relevant situations, and the Nanshan Procuratorate initiated the work mechanism of coordination between administrative law enforcement and criminal justice. In April 2020, the Nanshan Procuratorate indicted Damou Vision, and four individuals – namely, Zhang XX, Li XX, Liu XX, and Ma XX. On November 11, 2020, the Shenzhen Nanshan District People’s Court imposed a fine of RMB 400,000 on defendant Damou Vision for copyright infringement, and sentenced defendants Zhang and three others to imprisonment of one to three years along with a fine of RMB 20,000 to 100,000. Some of the defendants appealed against the first instance judgment. On March 11, 2021, the Shenzhen Intermediate People’s Court rejected the appeal and upheld the original judgment.
(1) It is necessary to crack down on online copyright infringement crimes in accordance with law and protect the legitimate rights of domestic and foreign copyright owners equally. The rapid development of information and network technologies is accompanied by more convenient and rapid dissemination of works, and some lawless elements have used the Internet to commit copyright infringement crimes, which not only undermine the socialist market economic order but also cause damage to the legitimate rights and interests of rights holders, and should be punished pursuant to law. In addition, under the Berne Convention and the Copyright Law, the foreign visual works involved in the case are also protected by the laws of mainland China. The procuratorial organ in this case also upholds the rationale of equal protection and strengthens the criminal judicial protection of the copyrights of domestic and foreign rights holders.
(2) For difficult and complicated intellectual property cases in which crimes are allegedly committed, the relevant administrative authorities requested the procuratorial authority to intervene in advance, and the Nanshan Procuratorate also worked with the relevant authorities to establish and improve the working mechanism of “coordination between administrative law enforcement and criminal justice ” in intellectual property cases.
(3) In this case, the court considered many factors in sentencing, including but not limited to the type of work, the source of work, the number of users, the number of views, the number of downloads, the number of orders, and the amount of money, etc., so that the determination of the criminal act and the sentencing were more accurate.