What are the principles of compensation for copyright infringement
(1) Principle of full compensation
The principle of full compensation for copyright infringement refers to the infringer All losses caused to the copyright owner due to its infringement activities should be compensated, including various damages that can be measured and compensated in money. The determination of the principle of full compensation is determined by the characteristics of the copyright itself and the diversity of the consequences of infringement. Copyright is an intangible property right. It does not have a definite and fixed value like tangible property, and when it is infringed, it will not directly manifest itself as damage or loss like tangible property. Copyright damage manifests itself in direct losses and indirect losses. Direct losses refer to the reduction of the rights holder’s existing property directly caused by the infringement, such as the reduction in the circulation of the work, the decrease in profits, and the additional expenses incurred by the victim due to the infringement; indirect losses refer to the rights holder’s infringement. The reduction or loss of future benefits from copyright is mainly the loss of market interests, which is often the main loss caused by copyright infringement. In addition, compensation should also be provided for any damage or mental damage caused by infringement of personal rights of a copyright. Only by compensating the copyright owner for all losses can the victim's actual losses be compensated most effectively and the principles of fairness and justice be upheld. Only by implementing the principle of full compensation can we effectively protect copyright, mobilize the enthusiasm of citizens to engage in creation, and encourage the creation and dissemination of excellent works. The creation of a work is a kind of hard mental work, and the work is the crystallization of the author's personal wisdom. If the copyright of the work is infringed and cannot be fully compensated, it will dampen the enthusiasm of enterprises and individuals to create intellectual achievements. Implementing the principle of full compensation is also a new trend in the development of the international intellectual property system. For example, the intellectual property damage compensation stipulated in Article 45 of the TRIPS Agreement means that the actor must pay damages "sufficient to compensate" for the loss of rights, which embodies the principle of full compensation.
It should be noted that new losses caused to the rights holder due to continued infringement during the litigation period should be included in the scope of compensation. If the alleged infringement continues during the litigation, the plaintiffIf a request for increased compensation is made and corresponding evidence is provided before the conclusion of the first-instance court debate, the plaintiff's expanded losses during the litigation should be included in the scope of compensation. If the plaintiff's losses increase during the second-instance litigation and need to be included in the scope of compensation, the second-instance court shall mediate on the amount of compensation. If mediation fails, it may make a new judgment on the amount of compensation and explain the reasons in the judgment.
(2) Principle of Statutory Compensation
The so-called statutory compensation refers to the principle of statutory compensation provided by copyright law in advance. It stipulates an amount of compensation (amount or number of shares within a certain range). When it is difficult to determine the actual damage of the victim and the illegal gains of the infringer or when the right holder chooses to request application, the court shall determine the amount of compensation based on the nature of the infringer's fault. A compensation method that determines a specific amount of compensation within the statutory compensation range based on factors such as the circumstances of the infringement and the consequences of the infringement. The principle of statutory compensation is a supplement and development of the principle of comprehensive compensation that adapts to the practical requirements of intellectual property protection. It is a principle gradually developed in judicial practice, and its connotation is to emphasize reasonable compensation. Since copyright belongs to intangible property, the victim's losses are often not reflected in the direct reduction of existing property, but in the failure to obtain due benefits due to the occurrence of infringement. Such deserved benefits can be obtained through prediction and analysis. However, it is very difficult to accurately identify the indirect losses, and sometimes it is even more difficult to identify the illegal profits of the infringer. Therefore, in trial practice, most countries have introduced a statutory compensation system, which directly stipulates the amount of compensation by law to make up for the shortcomings of the principle of comprehensive compensation, prevent legal gaps or difficulties in applying the law, and ensure that the victim's losses are properly compensated. legal protection. The principle of statutory compensation can, on the one hand, better implement the basic spirit of compensating victims for copyright infringement, and at the same time, it can also improve trial efficiency and reduce litigation costs. Because it facilitates the operation of judicial personnel and increases the speed of case handling, it can reduce litigation costs.
or unfair competition, the defendant may be ordered to stop infringement, cancel the domain name, or order the plaintiff to register and use the domain name at the plaintiff's request; if actual damage is caused to the right holder, the defendant may be ordered to compensate for the loss.
(3) Principle of discretionary compensation
The so-called discretion requires the judge to determine compensation The amount must be based on objective facts, in accordance with the general principles of civil law and the spirit of the basic principles of copyright law, relying on the judge's own legal literacy and trial experience, analyzing and judging the case, and considering the balance of interests between the parties.In order to achieve the legal purpose and the fairness and equity of the case judgment and protect the legitimate rights and interests of the obligee. Because the result of damage to intellectual creations is difficult to determine, and the specific circumstances of the case are complex and diverse, it is impossible to simply unify damages for copyright infringement. Therefore, no matter how specific and detailed the law's provisions on damages for copyright infringement are, whether the principle of full compensation or the principle of statutory compensation is applied, it cannot exclude the judge from specifically applying the law based on the facts of the case ascertained during the trial, and in the cases stipulated by the law. The specific amount of compensation will be determined within the range of the compensation amount based on the circumstances of the case. In the trial of copyright infringement cases, the legal provisions are incomplete and there are no operable provisions to follow, making it difficult for judges to determine the plaintiff's actual losses, the defendant's illegal profits, and the final amount of compensation. Therefore, when determining the amount of damages for copyright infringement, judges should be given certain discretionary power to meet the needs of trying various cases and achieve fairness in individual cases.
When the judge determines the amount of compensation at his or her discretion, the following factors should generally be considered:
(1) The victim’s damage consequences;
(2) The infringer’s profits;
(3) The degree of subjective fault of the infringer;
(4) The circumstances of the infringement, including the duration, scope, market share, social impact, Means of infringement, purpose of infringement, etc.;
(5) Local economic development level. Based on the level of economic development and taking into account the infringer's financial compensation ability, a feasible amount of compensation can be formulated to avoid the amount of compensation being too high or too low;
(6) The type, market value and estimated value of the infringed work.
The above is the relevant information compiled by the editor of Legal Savior Network for everyone. To sum up, we can understand that the principles that should be followed in compensation for copyright infringement include the full compensation principle, Statutory compensation principle, discretionary compensation principleFor these three types of posts, compensation should be made taking into account the victim's losses. If you have any other questions, please feel free to consult online.
