News

In today's era of rapid digital technology advancement, copyright protection faces unprecedented challenges. Technological progress facilitates content dissemination while simultaneously creating new avenues for infringement. Recently, JIA LAWYER undertook a legal consultation case:

Mr Qiang independently developed a technical decryption software named ‘Iceworm’ and provided it to his friend Mr Sheng. Mr Sheng utilised this software to download vast quantities of film, television, and music files via the internet, subsequently uploading them to cloud storage servers. He then offered playback and download services to consumers through a self-developed application. Leveraging ‘Iceworm's’ decryption capabilities, consumers could directly access the relevant works within Mr Sheng's application without needing to navigate to other paid platforms. Through advertisements within the app, Ah Sheng generated profits exceeding RMB 900,000, disseminating tens of thousands of works. Ah Qiang was fully aware of Ah Sheng's activities and profited RMB 50,000 by supplying the technical decryption software.

Does Ah Sheng's conduct constitute a criminal offence? Does Ah Qiang's provision of the technical decryption software to Ah Sheng constitute a criminal offence?

I. Asheng's Actions Constitute Copyright Infringement

Firstly, Asheng's actions unquestionably constitute copyright infringement. Pursuant to Article 217 of the Criminal Law of the People's Republic of China, where, for profit and without the copyright holder's permission, one reproduces and distributes or disseminates to the public via information networks literary works, musical compositions, artistic works, audiovisual works, computer software, etc., and the illegal gains are substantial or other serious circumstances exist, this constitutes copyright infringement. Article 12 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving Infringement of Intellectual Property Rights further clarifies: ‘Providing works, sound recordings, video recordings, or performances to the public via wired or wireless means, enabling the public to access them at their chosen time and location, without the permission of the copyright holder or related rights holder, shall be deemed as “disseminating to the public via information networks” as stipulated in Article 217 of the Criminal Law.’

In this case, without the copyright holder's permission, Ah Sheng unlawfully downloaded and disseminated cinematographic and musical works protected by copyright. He enabled consumers to play and download these works via his self-developed application at times and locations of their choosing. This conduct directly infringed the copyright holder's right of dissemination via information networks, satisfying the constituent elements of ‘disseminating to the public via information networks’ under the Criminal Law. Furthermore, A Sheng generated over 900,000 yuan in advertising revenue, constituting substantial illegal gains. With tens of thousands of works disseminated, the circumstances were grave, fully satisfying the criteria for conviction under the crime of copyright infringement.

II. A Qiang's Provision of Technical Decryption Software Also Constitutes a Criminal Offence

Does A Qiang's provision of the ‘Ice Worm’ technical decryption software constitute a criminal offence? The answer is equally affirmative.

Article 13 of the ‘Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving Infringement of Intellectual Property Rights’ stipulates: "Where acts infringing copyright or rights related to copyright as prescribed in Article 217 of the Criminal Law are committed, and the amount of illegal gains exceeds 30,000 yuan, it shall be deemed as constituting “a relatively large amount of illegal gains” as stipulated in Article 217 of the Criminal Law... Where a person, knowing that another is committing a copyright infringement offence, provides devices or components primarily designed to circumvent or undermine technical measures, or offers technical services to circumvent or undermine such measures, and the amount of illegal gains or the scale of illegal business operations meets the standards specified in the preceding paragraph, criminal liability shall be pursued for the offence of copyright infringement."

From the foregoing provisions, it is evident that the current Criminal Law and judicial interpretations have incorporated the circumvention of technical measures into the regulatory scope of copyright infringement offences. This provision further strengthens the criminal protection of copyright, particularly in internet-based copyright infringement crimes where technical means often play a crucial role in the commission of the offence. Consequently, the act of providing technical devices carries a significant degree of social harm.

In this case, although Ah Qiang did not directly engage in downloading, uploading, or collecting advertising fees, he knowingly created and provided the ‘Ice Worm’ technical circumvention software to assist Ah Sheng in evading technical measures, thereby enabling the completion of the infringing acts. By supplying this software, Ah Qiang profited RMB 50,000, which meets the judicial interpretation's threshold for ‘substantial illegal gains’. Consequently, Ah Qiang's actions constitute the crime of copyright infringement for which criminal liability shall be pursued.

III. The Boundaries of Criminal Liability for Technology Provision

This case may prompt reflection on the limits of criminal liability for technology provision. In the digital age, technological neutrality is frequently invoked as a defence, yet such neutrality does not equate to innocence of conduct. Where a technology provider knowingly supplies support despite being aware that others will utilise their technology for criminal purposes, their actions transcend mere technical service provision and constitute participation in a joint criminal enterprise.

The theory of ‘accessory liability’ in criminal law holds significant guiding principles here. An accessory is defined as one who knowingly provides tools, technical means, or other forms of assistance to facilitate another's criminal conduct. By creating and supplying the ‘Iceworm’ software, Ah Qiang provided crucial technical support for Ah Sheng's infringing activities. Without this software, Ah Sheng's application could not have achieved its technical decryption functionality. Consumers would still have been required to redirect to other platforms, substantially diminishing the scale and impact of his actions—or even rendering the criminal conduct impossible to complete. Consequently, Ah Qiang's actions played an indispensable role within Ah Sheng's criminal chain of events.

The case of Ah Qiang and Ah Sheng serves as a stark warning: in the digital age, the provision of technology is no longer a legal vacuum. Whether directly committing infringements or supplying technical support for such acts, any conduct meeting the constituent elements of criminal law may constitute an offence. While pursuing technological innovation, relevant parties must adhere to legal boundaries and respect others' intellectual property rights.

Special Notice:

This article is an original work by a solicitor of JAVY Law Firm and represents solely the author's personal views. It shall not be construed as formal legal advice or recommendations issued by JAVY Law Firm or its solicitors. Should any part of this content be reproduced or referenced, the source must be duly acknowledged.