The new Criminal Law of the People's Republic of China comes into effect on October 1, 1997. In the new Criminal Law, there is a chapter regarding crimes of infringing intellectual property. Before the new law is effective, there has been provisions in intellectual property legislation where certain activities are charged with criminal liability. The amendment of the Criminal Law shows the strengthening of protection of intellectual property.
The relevant provisions in the new Criminal Law are as follows:
1. Using a trademark which is identical with the registered trademark on the same kind of goods without a license from the owner of the registered trademark, where the situation is serious, will be punished for no more than three years fix-term imprisonment or criminal detention, and may in addition or separately be imposed a fine. Where the situation is severe, a fix-term imprisonment of no less than three years, no more than seven years will be imposed with a fine.
2. Knowingly selling counterfeiting goods, where the money amount of sale is comparatively large, will be punished for no more than three years fix-term imprisonment or criminal detention, and may in addition or separately be imposed a fine. Where the money amount of sale is huge, a fix-term imprisonment of no less than three years, no more than seven years will be imposed with a fine.
3. Forging or making without authorization of a registered trademark label of another person or selling registered trademark labels which are forged or made without authorization, where the situation is serious, will be punished for no more than three years fix-term imprisonment or criminal detention, and may in addition or separately be imposed a fine. Where the situation is severe, a fix-term imprisonment of no less than three years, no more than seven years will be imposed with a fine.
4. Counterfeiting of other's patent, where the situation is serious, will be punished for no more than three years fix-term imprisonment.
5. Anyone who, for the purpose of making profit, commits any one of the following acts of copyright infringement, where the illegal income is large or other serious situation exists, will be punished for no more than three years fix-term imprisonment or criminal detention, and may in addition or separately be imposed a fine. Where the illegal income is huge or other severe situation exists, a fix-term imprisonment of no less than three years, no more than seven years will be imposed with a fine:
1). reproducing and distributing a literary, musical, motion picture, television, audio-visual works, computer software or other works without the permission of the copyright owner;
2). publishing a book of which the exclusive right of publication is enjoyed by another person;
3). reproducing and distributing a sound or video recording produced by another person without the permission of that person; or
4). producing or selling a work of fine art with forged signature of another person.
6. Anyone who knowingly sells the abovementioned infringing works for the purpose of making profit, where the illegal income is huge, will be punished for no more than three years fix-term imprisonment or criminal detention, and may in addition or separately be imposed a fine.
7. Anyone who commits one of the following acts of trade secret infringement, when material damages are caused to the right proprietor of the trade secret, will be punished for no more than three years fix-term imprisonment or criminal detention, and may in addition or separately be imposed a fine. Where extremely serious damages are caused, a fix-term imprisonment of no less than three years, no more than seven years will be imposed with a fine:
1). obtaining a right proprietor's trade secret by stealing, luring, intimidation or any other unfair means;
2). disclosing, using or allowing another person to use the trade secret obtained from the right proprietor by the means mentioned in the proceeding paragraph; or
3). in breaching the agreement or against the right proprietor's demand for keeping confidentiality, disclosing, using or allowing another person to use the trade secret he possessed.
Anyone, who knows or should have known the acts listed in the above paragraph, obtains, uses or discloses the trade secret of another person, shall be dealt with as infringing trade secret.
The trade secret mentioned in the above paragraphs means any technology, information, or business operation information, which is unknown to the public, can bring about economic benefits to the right proprietor, has practical utility and about which the proprietor has adopted secret-keeping measures.
The right proprietor mentioned above means the owner of trade secret and the user of trade secret who is permitted by the owner of the trade secret.
When an institute commits any of the crimes listed above, the institute will be imposed a fine and the managing personnel directly responsible for the infringement or any directly responsible person will be punished according to the above provisions.
