On December 26, 2020, the 24th Meeting of the Standing Committee of the 13th National People's Congress passed the Amendment (11) to the Criminal Law of the People's Republic of China and the People's Republic of China. Since March 2021 Effective from the 1st. This amendment has also made major adjustments to crimes related to intellectual property rights. Eight amendments have been made to appropriately increase the crime of selling counterfeit registered trademarks, illegally manufacturing and selling illegally manufactured registered trademarks, and the crime of copyright infringement. , the penalties for six crimes including the crime of selling infringing copies and the crime of infringing on trade secrets have been further increased, and the crime of "commercial espionage" has been added.

1. The crime of trade secrets implements the first phase agreement of Sino-US economic and trade negotiations

The first chapter of the economic and trade agreement negotiated by China and the United States relates to intellectual property rights. The agreement stipulates that China should list what constitutes infringement Other acts of trade secrets, in particular “electronic intrusion, breach or inducement to breach the obligation not to disclose confidential information or information intended to be confidential…”. The revision of Article 219 of the crime of infringement of trade secrets in the "Criminal Law Amendment (Eleven)" implements other acts of infringement of trade secrets stipulated in the first phase agreement of the Sino-US economic and trade negotiations.

2. Increase the punishment for intellectual property crimes and change the original maximum sentencing limit of seven years to ten years

This amendment will increase the punishment for intellectual property infringement crimes. Among all crimes, except for the crime of patent counterfeiting, the main punishments of surveillance and criminal detention have been deleted. If the criminal elements are met, fixed-term imprisonment will be used as the starting point for sentencing.

In specific crimes of intellectual property infringement, the sentence is extended. For the same criminal circumstances, the original possible sentence was less than 3 years or 3 to 7 years. The amendment extends it to less than 5 years or 3 to 10 years. In 2016, the severity of applicable criminal penalties was increased.

3. Add the crime of commercial espionage

Include the act of "stealing, spying, bribing, or illegally providing trade secrets for overseas institutions, organizations, and personnel" into the criminal law's sub-provisions. This clause is closely related to the development path of global integration of today's financial and economic system. In the context of the Sino-US trade war, the agreement signed by China-US consultations has intellectual property rights, technology transfer and other related content as core elements. Against this background, standardizing the protection of trade secrets and promoting the development of a standardized domestic and foreign trading environment will help promote fair competition among enterprises and create a good business environment.

The addition of "commercial espionage" will greatly curb the use of various methods by some companies to obtain competitors' trade secrets, reminding some companies to avoid being involved in this crime; it also gives businesses Subjects can use the setting of this crime to prevent others from infringing on their business secrets and effectively protect their business secrets.

4. Modify infringement acts and add types of criminal acts for infringement of trade secrets

Clearly include "electronic intrusion" or other improper means of obtaining trade secrets into the means of determining criminal offenses; In response to the constant changes in infringement technical means, we must take precautions against illegal intrusions by hackers, computer virus implantation and other methods of stealing secrets in the computer field.

It is worth noting that the Criminal Law Amendment (11) deletes the concept of trade secrets, which will have two impacts on the identification of trade secrets. One is that the criteria for identifying trade secrets are open. It can deal with new situations and new problems. The other is the generalization of the crackdown on commercial secret crimes, and the objective risk of "analogous explanations" increases.

5. Article 213 of the crime of counterfeiting registered trademarks creates a new "service trademark", raising the protective status of service trademarks to the same level as commodity trademarks

The revised Criminal Law Article 213 is " Anyone who uses the same trademark as the registered trademark on the same kind of goods or services without the permission of the owner of the registered trademark, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, and shall also be fined, or shall be fined alone; if the circumstances are particularly serious, he shall be sentenced to more than three years A prison sentence of not more than ten years and a fine. "

A service mark is a mark used by operators providing services to distinguish the services they provide from those provided by others. Like product trademarks, service trademarks can be composed of text, graphics, letters, numbers, three-dimensional logos, sounds and color combinations, as well as combinations of the above elements (for example, Microsoft and Google are both service brands).

my country began to adopt the Nice Agreement on the International Classification of Goods and Services for Trademark Registration in 1988. Later, in order to implement relevant intellectual property treaties, the content of service marks was added when the Trademark Law was revised in 1993. However, in criminal law, service trademarks have never been included in the scope of protection in the field of intellectual property crimes. Based on the principle of legal punishment in criminal law, in judicial practice, infringement of service trademarks has not been convicted and punished. This amendment adds intangible services and places more emphasis on the legal protection of service brands.

6. The revised crime of copyright infringement includes short videos such as Douyin, Kuaishou, and Douyu, online live broadcasts, and online game animations into the scope of protection

With the rapid development of information network technology With the development, the cultural industry has undergone tremendous changes. Short videos, online live broadcasts and other entertainment industries represented by Douyin and Douyu are booming.

The new "Copyright Law" was revised by the Standing Committee of the 13th National People's Congress on November 11, 2020. It will come into effect on June 1, 2021, and has clarified the definition of works in the form of law, and The blanket clause of "other works stipulated in laws and administrative regulations" was modified to "other intellectual achievements consistent with the characteristics of the work", breaking through the legal principle of work types and forming an open pattern of work object types.

Therefore, this time the "Criminal Law Amendment (Eleven)" changes the "film, television, and video works" involved in the crime of copyright infringement in Article 217 to "audiovisual works" simultaneously with the new copyright law. ”, added “artistic works”, and added protection for performers’ rights in copyright neighboring rights, and clarified the infringement of “communication to the public through information networks”, which is also in line with the newly revised Copyright Law and related administrative regulations Connect with each other.