How to compensate for copyright infringement
1. Based on the actual losses of the infringed party
"The actual loss of the right holder" can be calculated according to the following method:1) The amount of the right holder’s profit reduction caused by the infringement ;
2) For infringement through newspaper, book publishing or similar means, please refer to the national regulations on royalties;
3) The right holder’s reasonable license fee;
4) The reduction in sales of the right holder’s copy multiplied by the product of the profit per copy ;
5) The number of infringing copies multiplied by the right holder’s profit per copy;
6) Expected profit losses resulting from the inability or difficulty in performing the rights holder’s license contract due to infringement; 7) The decrease in the value of the rights holder’s works due to infringement loss;
8) Other methods of determining the actual loss of the right holder.
In addition, the expenses incurred by filing a lawsuit should also be included in the scope of compensation. There may be many expenses incurred in filing a lawsuit, including: the cost of hiring a lawyer, the cost of investigation and evidence collection and travel expenses to stop the infringement, the cost of reviewing and collecting evidence materials, the cost of identifying whether infringement is constituted, etc. The investigation fees, attorney fees and other expenses incurred by the infringed party due to litigation should be included in the scope of the actual losses of the infringed party so that the parties concerned can receive full and reasonable compensation. These expenses are the actual expenses that the infringed party must pay to stop the infringement, and should be the actual losses of the infringed party.
2. Based on the illegal income of the infringer
When determining the amount of compensation for infringement, the court may, at the request of the infringed party, calculate the amount of compensation based on the direct economic losses suffered due to the infringement and the lost expected benefits. It may also calculate the amount of compensation based on the infringement. The amount of compensation is calculated based on the benefits gained by the person due to the infringement. If the infringer cannot prove its costs or necessary expenses, the income derived from the infringement shall be the proceeds.
"Illegal gains of the infringer" include the following three situations: 1) Product sales profits 2) Operating profits 3) Net profits. Under normal circumstances, the amount of compensation should be the defendant’s business profits. For example, if an infringer publishes and distributes a copyrighted text work without the permission of the copyright owner, and distributes a total of 5,000 copies, then the amount of infringement compensation is the unit price of the book multiplied by the number of 5,000 copies, minus the reasonable expenses for printing, distribution and distribution. The discount can be used to calculate the infringement income.
3. Statutory compensation
If the amount of losses suffered by the infringed party cannot be determined, the court shall determine the amount of losses suffered by the infringed party. For a request, the amount of compensation can be determined based on the circumstances of the infringement, ranging from RMB 500 to RMB 300,000, with a maximum of RMB 500,000. Paragraph 2 of Article 49 of the Copyright Law stipulates: “If the actual losses of the right holder or the illegal gains of the infringer cannot be determined, the court shall, based on the circumstances of the infringement, award a compensation of not more than 500,000 yuan.”
The above provisions are statutory compensation. When it is difficult to ascertain the actual damage of the infringed party or the infringement benefits of the infringement, the court shall based on the nature of the infringer's fault and the circumstances of the infringement. and other factors, a compensation method that determines the specific amount of compensation within the statutory compensation range. In accordance with the provisions of Article 48 of the Copyright Law. The premise of statutory compensation is that the actual losses of the right holder or the illegal gains of the infringer cannot be determined and are difficult to calculate. The amount of compensation is determined by the court, generally based on the circumstances of the infringement, the impact of the infringement and other aspects. The maximum amount is NT$500,000, with no minimum limit.
4. Mental damage loss
The moral damage compensation for copyright can only be limited to the personal rights of the copyright. Damage, that is, mainly damage compensation for goodwill such as the name rights of citizens and legal persons, title rights, etc. in disputes over damages to the personal rights of copyrights. Compensation for mental damages is not applicable beyond this range. For example:
1) Publish the work seriously against the plaintiff's will without the plaintiff's permission, and have a negative impact on the plaintiff's credibility and social evaluation
2) Plagiarizing the plaintiff’s works in large quantities and having a wide impact, and thereby gaining a greater reputation for the defendant
3) Seriously distorting or tampering with other people’s works
4) Without permission, the plaintiff’s collaborative work, which he mainly participated in the creation, was published in his own name and the defendant gained a greater reputation
5) Did not participate in the creation, but signed the plaintiff's work in order to seek personal fame and fortune
6) Seriously distorted the performance image and gave The plaintiff’s social image has a negative impact
7) Producing and selling works counterfeiting the plaintiff’s signature, which has a greater impact
8) Other circumstances in which solatium for moral damage to the right holder should be paid.
For moral damage to copyright, other civil liabilities should first be applied based on the circumstances of the damage. Methods, such as stopping the infringement, publicly apologizing, eliminating the impact, restoring reputation and other non-property liability methods. Compensation for mental damages is only applicable when the circumstances are serious and the use of non-property liability methods is obviously insufficient to protect the victim’s spiritual rights and interests.
The amount of solatium for mental damage shall be comprehensively determined based on factors such as the defendant’s degree of fault, method of infringement, circumstances of infringement, scope of influence, profit from infringement, ability to bear liability for compensation, etc. . Mental damage solatium is generally not less than 2,000 yuan and not more than 50,000 yuan.
5. Other calculation methods in judicial practice
In addition to the above provisions, local courts have also created and accumulated other calculation methods for compensation in the practice of trying copyright infringement cases.
1) Use reasonable transfer fees, royalties, licensing fees and other income remuneration as the standard of compensation
Copyright royalties, transfer fees, etc. are generally available to relevant competent authorities. Certain standards, or there are comparable contract standards between the parties, as well as usage fee standards of other units in the same industry and at the same level. These standards are generally objective and will not be affected by disputes between the parties. For example, copyright royalties, copyright transfer fees, etc. The most common method used by German judges when dealing with damages for copyright infringement is to use the royalties of the infringed rights as compensation. TheyI think this is the simplest, easiest to operate, fair and reasonable method of compensation.
2) Compensation based on royalties
In practice, the court calculates the number of words that have been infringed, and then Compensation will be based on two to five times the royalties. According to the remuneration standards promulgated by relevant departments, the maximum compensation is 100 yuan per 1,000 words. Calculated at two to five times, the compensation is also very limited, with the maximum compensation being only 500 yuan per 1,000 words. At present, in the cultural world, some newspapers and publications invite famous writers to write columns, and the remuneration for each word has exceeded 1,000 yuan. Some writers have published a best-selling book, and the remuneration is as high as several million yuan. If compensation is based on the standard of royalties, it obviously cannot be insufficient compensation. At the same time, compensating infringements based on royalties actually legalizes illegal acts and is not conducive to the correct protection of the legitimate rights and interests of the parties involved.
3) Compensation in accordance with the royalty rate standard
In practice, mergers that are processed and processed in accordance with this standard Not many, but there are cases where this standard is used for processing. For example, the Beijing No. 2 Intermediate People’s Court heard the copyright infringement case of ** Vollet Disney Company v. ** Publishing House and ** Bookstore Head Office Beijing Publishing House. The court took the royalty rate into consideration during the trial and held that when the amount of compensation could not be determined by other methods, the court could base the case on the royalty rate and multiply it by double or several times depending on the circumstances, and use this amount as the amount of compensation. The amount of compensation is the product of the royalty rate and the total unit price multiplied by the number of printed copies. The royalty rate for reference is generally about 6%-15% in different situations.
4) Determination according to the will of the judge
This is a main method of operation in practice . Its biggest drawbacks are: first, the inconsistency of law enforcement. Due to the different persons hearing the cases, or the influence of factors such as the value orientation of the presiding judge, different compensation judgments are often made for similar cases in the same area. Sometimes the amount of compensation for serious infringement is even lower than the amount of compensation for minor infringement. . The second is that the compensation sometimes does not reach the extent of the actual damage suffered by the parties, making it difficult for the parties to accept the judgment. In order to overcome the above shortcomings, some courts have proposed five principles for calculating compensation, namely, first, look at the severity of the infringement; second, look at the actual extent of damage suffered by the infringed party; third, look at the illegal profits of the infringer; fourth, look at the circumstances of the infringed party. Social popularity depends on the local social and economic development level. This calculation principle is just like the principle of "mental damage" compensation, which is difficult to grasp and operate.
When copyright infringement requires compensation from the infringing party, if you do not know the relevant knowledge, you can ask a lawyer on the Legal Savior Network.