What is the standard of compensation for computer software infringement
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, Compensation can be provided based on 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 situation of the right holder If the loss or illegal gains of the infringer cannot be determined, the people's court shall, based on the circumstances of the infringement, award a compensation of not more than 500,000 yuan.
1. Computer software Methods for determining direct losses from infringement
1) Available profit loss method
The loss of the right holder shall be the reduction in profit earned by the right holder during the period of infringement. The advantage of this calculation method is that the amount of loss obtained is relatively close to the actual loss, and it has a wide range of applications and can be used to calculate the amount of infringement losses in most software infringement cases. The disadvantage is that the impact of market factors is not taken into account. When the market changes significantly, this method should not be used.
2) Infringement Profit Law
That is, the profits gained by the infringer from the infringement shall be regarded as the loss of the right holder. In practice, this calculation method is rarely used. The main reason is that it is difficult to obtain evidence of the infringer's sales, and it is difficult to determine the infringer's true acquisition status. Secondly, computer software is a knowledge-intensive industry with high development costs and investment, but it is relatively easy to copy. Once a piece of unused software is sold, it is impossible to control the scope of its further reproduction. It is obviously not objective to only regard the seized illegal profits as the loss of the right holder.
In addition, from the perspective of social effects, if the infringer is only sentenced to compensate for the identified illegal gains, it will be irrelevant to him, and he can even obtain undiscovered illegal gains, so it is not necessary. It is helpful to combat the illegal activities of infringers. If the sales area of the right holder and the infringer are not in the same area, the infringement behavior of the infringer will have little impact on the sales of the right holder. This method can be used when the license fee is not known. Of course, this requires an in-depth and detailed investigation of the infringer's sales to determine and clarify the infringer's profits.
2. Scope of indirect losses due to computer software infringement
The indirect losses caused by software infringement are mainly the loss of profits gained by the right holder from exercising the copyright of the software work. These losses include the right holder's loss of market share and weakening of market competitiveness, as well as loss of business reputation. In addition, reasonable costs for stopping the infringement should also be included in the calculation.
In practice, the reasonable costs of stopping the infringement The scope generally includes:
(1) Reasonable Lawyer fees;
(2) Investigation and evidence collection and Legitimate travel expenses, etc. paid to stop the infringement;
(3) Reasonable expenses paid for accessing and copying relevant materials for the purpose of producing evidence;
(4) Reasonable appraisal fees and other reasonable expenses such as evidence preservation and notarization fees.
3. The judicially determined range and minimum amount of compensation Application of the amount of compensation
In view of computer software infringement litigation Characteristics, in many cases, the infringer has caused the consequences of the infringement, the actual losses caused to the right holder and the infringementProfiting from someone's infringement is difficult to ascertain for many reasons. It is also a very complicated and huge project for the parties to provide evidence and for the people's court to find out the relevant facts. Therefore, if the actual amount of loss or profit cannot be ascertained, the amount of compensation can be determined according to a prescribed range.
Infringement of Article 49 of the Copyright Law In the case 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 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.
Infringement of copyright or rights related to copyright, The infringer shall compensate the copyright owner based on his actual losses; if the actual losses are difficult to calculate, compensation may be based on the infringer's illegal gains. The amount of compensation should also include the reasonable expenses paid by the copyright owner to stop the infringement. If your situation is more complicated, the Legal Savior Network also provides online lawyer consultation services. You are welcome to seek legal consultation.
