The "16-point" guideline on cracking down crimes of intellectual property infringement jointly issued by the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security recently once again demonstrated China's determination and efforts to fight this kind of crimes.

China has issued many judicial interpretations and normative documents on the infringement of intellectual property rights in recent years, clearly specifying the sentencing and punishment standards for such crimes. It has also investigated and prosecuted numerous major cases and curbed mass torts.

On the current situation of piracy and counterfeiting, vice president of the Supreme People's Court Xiong Xuanguo frankly admitted at a news briefing hosted by the State Council Information Office that "the crime of intellectual property infringement is quite serious and rampant in certain areas and sectors."

Gao Feng, deputy director of the economic crimes investigation bureau of the Ministry of Public Security, said a campaign launched recently by public security organs has successfully cracked down more than 2,000 cases of intellectual property infringement involving some Rmb2.3 billion and arrested over 4,000 suspects, more than three times their respective figures in 2009.

Xiong Xuanguo saw the following new changes and characteristics in the infringement of intellectual property rights: most crimes are committed on information networks and the crimes are becoming more diversified, organised, professional and well-concealed, which make investigation very difficult.

The great number of crimes of intellectual property infringements underscores China's lack of specific laws and judicial interpretations for intellectual property protection, the difficulty of grasping the legal and policy boundaries, and the host of questions over the applicability of laws. "These problems have affected the timely and effective crackdown of crimes of intellectual property infringement to some extent," said Xiong Xuanguo.

After prolonged investigations and studies, and canvassing of views and suggestions of administrative departments in charge of intellectual property rights and scholars and experts in this field, the Supreme People's Court has, together with the Supreme People's Procuratorate and the Ministry of Public Security, promulgated the Opinions on Certain Issues Concerning the Application of Laws for Handling Criminal Cases of Intellectual Property Rights Infringement.

The Opinions consist of 16 articles, setting out provisions for the jurisdiction of criminal cases of intellectual property infringements, the efficiency of administrative and law-enforcement departments in collecting and utilising relative evidences, sampling inspection, evidence verification, and the determination of constitutive elements of crimes.

The Opinions also set out specific and workable provisions for dealing with the increasing number of crimes of intellectual property infringement on information networks.

The Opinions stipulate that acts of disseminating to the public the written texts, music, films, television programmes, photographs, videotaped works, recordings and video products, software and other works on information networks without the authorisation of the copyright owners for the purpose of making profits are considered to be "other serious circumstances" under the provisions of Article 217 of the Criminal Law if they meet one of the following conditions: (1) the illegal business amounts to over Rmb50,000 in value; (2) the number of unauthorised works involved exceeds 500; (3) the actual number of clicks received for the works being disseminated online exceeds 50,000; (4) the number of registered subscribers exceeds 1,000 if a membership system is used to disseminate other people's works; (5) where the amount or number is below the standards set in items (1) to (4) but has reached more than half in any two items; and (6) other serious circumstances.

In trademark infringement cases, there are no unified standards for determining what exactly constitutes "a trademark identical to one's registered trademark". The Opinions stipulate that "changing the font, letter size or horizontal or vertical arrangement of characters so that there is only a slight difference with the registered trademark; changing the spacing between the characters, letters, numbers and so on used in the registered trademark without affecting its distinctive features; changing the colour of the registered trademark; and a trademark that basically has no visual difference with the registered trademark but is sufficient to mislead the public" shall be ruled as "a trademark identical to one's registered trademark" under Article 213 of the Criminal Law.

Whether or not permission has been obtained from the copyright holder is an important criterion for determining if an act constitutes a crime of infringement. The Opinions stipulate that if there is evidence proving that the reproductions at issue are illegally published, duplicated or distributed, and the publishers, reproducers or distributors cannot provide corresponding proof of their having obtained the permission of the copyright holder, these reproduction may be deemed to have been made "without the authorisation of the copyright owner". This is except where there is evidence proving that the copyrights holders have waived their rights, the copyright at issue is not protected under China's Copyright Law, or the copyright protection term has expired.