On 11 January 2011, the Opinions on Issues Regarding Laws Applied in Criminal Cases of Intellectual Property Violation Cases (the Opinions) was promulgated in China. The Opinions clarifies issues such as the jurisdiction on criminal cases related to intellectual property (IP) violations, efficacy of evidence collected and obtained by administrative law enforcement departments, crime threshold for internet IP violations, and other issues.
The most salient parts in the Opinions are summarized below:
- Jurisdiction for IP Infringement Criminal Cases
The prosecutors and the courts whose territory includes the following places all have jurisdiction over the relevant IP crimes:
- the place in which the infringing products were manufactured, stored, transported, and sold;
- for online copyright infringement and online sales of IP infringing products, the place where the server of the infringing works is located, where the operator of the website lives, and where the network access for infringing works is provided;
- for online copyright infringement, the place where the infringing work was uploaded to the Internet; and
- the place where the crime results occur, or specifically the place where the IPR holder suffers actual damage.
- The evidence collected by administrative law enforcement departments could be used directly as evidence in the criminal case after examination by the court.
- For private prosecution cases, if the private prosecutor formally requests the court to collect certain evidence on its behalf, the court SHOULD collect the evidence accordingly.
- Criminal Threshold
- Criminal Threshold for Trademark Infringement Case: if the infringing products have not yet been sold but are valued higher than RMB 150,000, the infringer would be subject to attempted crime of trademark infringement;
- Criminal Threshold for Online Dissemination of Copyright Infringing Works: (a) a business volume of higher than RMB 50,000; (b) a total number of infringing works of over 500; (c) a total number of visits of over 50,000; and (d) a total number of members or participants of over 1,000.