How to calculate the amount of damage caused by copyright infringement
Most courts consider the loss of market value caused by infringement as the actual The amount of damage. If the market value is completely destroyed by the infringement, the amount of damage shall be the entire market value. The difficulty is that it is difficult for the plaintiff to prove its market value, and the court can only use various indirect evidence to determine its value. In this case, the defendant's benefit is often presumed to be the plaintiff's damage. But in fact, the defendant’s benefit is never equal to the plaintiff’s damage, and may be more or less. The courts are also reluctant to readily adopt this theory in the absence of evidence.
The difficulty in calculating the actual amount of damage does not rule out the possibility of the court assessing the value of the damage. The court can still evaluate the estimate based on free evidence. Even when the plaintiff claims that the spiritual value of his work far exceeds the market value, the court can consider the nature of the work and judge the actual value of the plaintiff's work and whether it can be copied, but this falls within the scope of "statutory compensation."
The plaintiff can not only request damages for actual interests; Additional expenses such as expenses due to the infringement can be requested. However, it is not allowed to claim damages that may harm the plaintiff's business even if the defendant is legally authorized, as well as losses from the defendant's agent who sold the infringing items to the plaintiff. As for the damage to the plaintiff's goodwill, if it can be proved conclusively, he can also receive compensation. However, if the total profit actually increases during the period of infringement, there is no way to claim damage to goodwill.
Article 49 of the Copyright Law Infringement of Copyright or rights related to copyright, the infringer shall compensate the right holder according to the actual loss; if the actual loss is difficult to calculate, the infringer may be compensated according to the illegal income of the infringer. The amount of compensation should also include the reasonable expenses paid by the right owner to stop the infringement.
The actual losses of the right holder or the infringer’s illegal conduct If the income cannot be determined, the people's court shall award a compensation of not more than 500,000 yuan based on the circumstances of the infringement.
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