日本打击侵犯著作权私人下载行为的罚则探析: 兼评个人下载行为在中国入刑的可行性

The newly leaked TPP agreement clearly provides that the reinforcement of criminal sanction of copyright infringement is needed. This proposition is backed by Japan’s recent copyright law revision that criminalized certain private download activities. But evidently, the three year follow-up reports regarding the implementation show that the deterrence effect is obvious but it failed in promoting the development of the industry. In terms of the TPP proposition, for China, criminalizing private downloading activities are without theoretical and actual foundations which render it infeasible. If in the future, Chinese legislators found certain private download activity infringes legal interests seriously, the future path should be first make certain private downloading activity a copyright infringement, further by changing China’s criminal protection mode regarding copyright, utilizing subsidiary criminal law, we could then consider punishing certain private downloading activity with criminal law.