論網絡環境下著作權侵權的刑事歸責──以網絡服務提供者的刑事責任爲中心

The Criminal Imputation of Copyright Infringement in the Network Environment On the Center of Criminal Responsibility of Network Service Provider OUYANG Benqi

爲彌補我國前置法與刑法之間的立法代溝，需要對侵犯著作權罪的“發行”要件作擴大解釋，使之包含“信息網絡傳播”。爲防止民事歸責與刑事歸責之間的標準倒挂，需要以實質呈現標準取代服務器標準與社會危害性標準，將其作爲認定信息網絡傳播行爲的標準。據此，深度鏈接行爲成立侵犯著作權罪正犯的理由不是共犯正犯化理論，也不是社會危害性理論，而是因爲其實質性地改變了作品的呈現方式。網絡服務提供者明知他人實施侵犯著作權罪而爲其提供技術服務，不是無責的中立幫助行爲，應該成立侵犯著作權罪的幫助犯。網絡技術服務提供者有删除侵權作品或斷開鏈接的義務，這種義務來源于危險的先前行爲，其違反義務的不作爲成立侵犯著作權罪的幫助犯。 In order to make up the legislative generation gap between China's prepositional law and criminal law, it is necessary to expand the explanation of the “distribution” of the crime of copyright infringement, which should include “information network transmission”. In order to avert the standard inversion between civil and criminal imputation, it is necessary to regard essence presence standard as the standard for identifying the communication behavior of the information network in place of server standard and social harmfulness stand­ard. Accordingly, the reason that deep linking behavior constitutes the principal offender of crime of copyright infringement is not the theory of accomplice offender and social harmfulness,but the reason for changing the presentation of the works essentially. The behavior that network service provider provides technical services to other people, knowing that other people are committing crime of copyright infringement is not neutral behav­ior without responsibility, and the behavior should constitute accessory offender of crime of copyright infringe­ment. Network technology service provider shall have the obligation of removing infringing works or discon­necting the link, which is derived from the previous behavior of danger, and the omission violating the obli­gation constitutes accessory offender of crime of copyright infringement.

In order to make up the legislative generation gap between China's prepositional law and criminal law, it is necessary to expand the explanation of the “distribution” of the crime of copyright infringement, which should include “information network transmission”. In order to avert the standard inversion between civil and criminal imputation, it is necessary to regard essence presence standard as the standard for identifying the communication behavior of the information network in place of server standard and social harmfulness stand­ard. Accordingly, the reason that deep linking behavior constitutes the principal offender of crime of copyright infringement is not the theory of accomplice offender and social harmfulness,but the reason for changing the presentation of the works essentially. The behavior that network service provider provides technical services to other people, knowing that other people are committing crime of copyright infringement is not neutral behav­ior without responsibility, and the behavior should constitute accessory offender of crime of copyright infringe­ment. Network technology service provider shall have the obligation of removing infringing works or discon­necting the link, which is derived from the previous behavior of danger, and the omission violating the obli­gation constitutes accessory offender of crime of copyright infringement.