How to determine the amount of damages in novel copyright infringement disputes
According to Article 49 of the Copyright Law: "In case of infringement of copyright or copyright-related rights, 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. The amount of compensation shall also include the amount paid by the right holder to stop the infringement. Reasonable expenses. If the actual losses of the right holder or the illegal gains of the infringer cannot be determined, the court shall award a compensation of less than 500,000 yuan based on the circumstances of the infringement." There are three calculation methods for copyright infringement compensation in China: 1. The actual losses of the infringed party shall be the basis; 2. The illegal gains of the infringer shall be the basis; 3. Statutory compensation.
There are also some specific practices in judicial practice. We can choose to apply these compensation methods and calculate them in the way that is most beneficial to us. The following is an introduction to the application and calculation of the three compensation calculation methods and the main practices in judicial practice.
1. The actual loss of the infringed party shall be Based on
"actual losses of the right holder" can be based on Calculated by the following method:
1) The amount by which the infringement reduces the rights owner’s profits;
2) If the infringement is infringed by publishing in newspapers, periodicals, books or similar means, the infringement can be Refer to the national regulations on royalties;
3) Rights reasonable licensing fees;
4) Rights The reduced sales volume of replicas is multiplied by the profit of each replica;
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) Losses caused by the decrease in the value of the rights holder’s works due to infringement;
8) Other methods of determining the actual loss of the right holder.
In addition, the expenses caused 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, investigation and evidence collection fees, and payment to stop the infringement Travel expenses, fees paid for reviewing and collecting evidence materials, identification fees for whether infringement is constituted, etc. 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 shall receive full and reasonable compensation. These expenses are the expenses that the infringed party actually has to 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 direct economic losses suffered due to the infringement. The amount of compensation for losses and lost expected benefits can also be calculated based on the benefits gained by the infringer from the infringement. If the infringer cannot prove its costs or necessary expenses, the income derived from the infringement shall be the benefits gained.
"Illegal gains of the infringer" include the following three situations ：1) Product sales profit 2) Operating profit 3) Net profit.
Generally, the amount of compensation should be the defendant’s business profits. For example, if the 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 compensation for infringement is The unit price multiplied by the distribution quantity of 5,000 copies minus the reasonable costs of printing, distribution and distribution discounts can be used to calculate the infringement income.
3. Statutory compensation
If the actual losses of the right holder or the illegal gains of the infringer cannot be determined, the people's court shall Depending on the circumstances of the infringement, the court shall award a compensation of less than RMB 500,000.
The above provisions are statutory compensation. If it is difficult to check When the actual damage caused by the infringed party or the infringement benefit of the infringer is proved, the court shall determine the specific amount of compensation within the statutory compensation range based on the nature of the infringer's fault, the circumstances of the infringement and other factors. In accordance with the provisions of Article 49 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 damage to the personal rights of the copyright. That is to say, it mainly involves damages to the name rights of citizens and legal persons, title rights and other goodwill in disputes over damages to the personal rights of copyrights. Compensation for mental damages is not applicable beyond this range. Such as:
1) Without the plaintiff’s permission, serious Publish his works against his will and have a negative impact on the plaintiff's credibility and social evaluation
2) Plagiarizing the plaintiff’s works in large quantities and with wide influence, and thereby gaining a greater reputation for the defendant
3) Seriously distorting or tampering with other people’s works
4) Publish the collaborative work in which the plaintiff mainly participated in the creation in his own name without permission, thereby allowing the defendant to obtain a greater reputation
5) Did not participate in creation in order to seek personal fame and fortune , signed on the plaintiff’s work
6) Serious Distorting the image of the performance and bringing negative impact to the plaintiff’s social image
7) Produce and sell works counterfeiting the plaintiff’s signature and having a greater impact
8) Other circumstances in which the obligee should be paid solatium for mental damage.
For moral damage to copyright, other civil liability methods should first be applied according to the circumstances of the damage, such as cessation of infringement, public apology, elimination of influence, restoration of reputation and other non-property liability methods. Only for Compensation for mental damages is only applicable when the circumstances are serious and non-property liability forms are obviously insufficient to protect the victim’s mental rights and interests.
The amount of solatium for mental damage shall be based on the defendant’s pastThe degree of wrongdoing, method of infringement, circumstances of infringement, scope of influence, profit from infringement, ability to bear liability for compensation and other factors are comprehensively determined.
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