The Amendment(Ⅺ)to the Criminal Law identifies the infringement of copyright through information network dissemination for profit-making purposes as a distinct type of conduct,thus avoiding the previous misclassification as"copying and distribution".However,the self-media era,characterized by the openness of network access,decentralization of platforms,commodification of social trust,individual user creation,and influencer marketing strategies,has blurred the theoretical boundaries of the normative connotation of information network dissemination rights,the originality of works,and fair use rules.These changes also pose a triple dilemma for the criminal law protection of information network dissemination rights:First,the independent value of secondary creation affects the assessment of the infringement's severity on the work's value;Second,the transformative use in secondary creation may constitute fair use as a legal defense;Third,live streaming sales marketing complicates the proof of a profit-oriented intent.In judicial application,emphasis should be placed on the creative force in secondary creation,the objectivity of the profit-oriented intent,and the utilitarian connection between profit facts and amounts.This approach ensures adherence to the principle of restraint in criminal law,reasonable limits on intellectual property protection,and consideration for the economic structure development in the self-media era and the protection of citizens'legitimate rights and interests in cyberspace.
关键词
信息网络传播权/刑法保护/自媒体时代/二次创作行为/直播带货式营销/以营利为目的
Key words
right to disseminate information through networks/commodification of social trust/secondary creation activities/live streaming sales marketing/profit-oriented
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