1. Standards for compensation for intellectual property infringement
Compensation standards are the core of damages question. As a criterion for measuring the damage caused by intellectual property infringement, it directly affects the scope of compensation and the determination of the amount of compensation.
At present, in the field of intellectual property law, many scholars hold the multi-standard theory of compensation for damages for intellectual property infringement, which takes the following two as standards for damages at the same time: The first is the actual economic loss caused by the infringer to the right holder; the second is all the profits obtained by the infringer due to the infringement. Intellectual property judicial practice also implements this double standard. Moreover, since it is difficult to calculate the amount of actual economic losses, it is relatively easy to prove the amount of benefits gained by the infringer due to the infringement. Therefore, courts often use the latter as the standard when determining liability for damages. The author believes that the multiplicity of such compensation standards and the preferential application of standards are the primary problems in the intellectual property damage compensation system.
As a criterion, compensation standards require people to apply the same scale to the same type of things. If you think that "standards" can be multiple, this is first of all a misunderstanding of "standards". This incorrect understanding is bound to cause confusion in practice. This is illustrated by the current series of issues arising from the different standards of damages adopted by local courts. Therefore, the standard of damages can only be single and should not be multiple.
As mentioned above, when the dual standard of compensation is adopted, the court often chooses the standard of profits obtained by the infringer from the infringement. In fact, there are many situations in which the infringer's profit can be: the profit is roughly equal to the victim's loss; the profit is less than the victim's actual loss; there is no profit, but losses have been caused to the victim. In the latter two cases, if the profits gained by the infringer are used as the standard of compensation, the amount of damages will be smaller than the actual loss of the victim. This is also the reason for the abnormal phenomenon that the plaintiff "wins the lawsuit but loses money" in reality. For example, in a copyright infringement case that was concluded by the Intermediate People's Court of a certain city, the court ruled that the defendant should compensate the plaintiff 20,000 yuan based on the defendant's profit, but the plaintiff provided 50,000 yuan in various expenses for the litigation alone.More than ten thousand yuan. It can be seen that using the defendant's profit as the standard for compensation cannot achieve the purpose of "compensating" the victim. This goes against the purpose of the law to protect the legitimate rights of obligees and punish illegal actors.
So, what should be the standard of compensation for damage caused by intellectual property infringement? Through the analysis of the following three aspects, it is not difficult to get the answer to this question. First of all, from the perspective of the law of economic equivalence, this law requires the actor to pay an equal price for the consequences of his behavior, which is roughly equal to the price the victim deserves (this is the consideration). Consideration is always the basic element in determining compensation. Secondly, from the perspective of the basic civil law principle of "equivalent compensation", according to this principle, on the one hand, in legal economic activities, unless otherwise provided by law or otherwise agreed in the contract, the party who obtains the property interests of others shall The corresponding price or other property benefits should be paid to the other party; on the other hand, in illegal civil activities, the perpetrator must compensate for the losses caused by his actions, and the scope of compensation should be consistent with the scope of the losses. Thirdly, from the perspective of "compensation for damages" itself, the so-called "compensation" means "compensation" and "compensation". "Compensation for damages" refers to restoring the damaged rights to their rights by compensating the victims for the losses they suffered due to infringement. The state before the infringement. It can be seen that only the actual damage caused by the infringer to the right holder (including property loss and mental damage) can be used as the standard for damages to satisfy the above requirements at the same time. The establishment of this standard provides a fair and reasonable objective economic basis for the subsequent scientific determination of the scope and amount of damages.
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