What is the standard of compensation for copyright infringement
According to Article 49 of the Copyright Law: "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 reasonable expenses paid by the right holder to stop the infringement. . 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. Based on the infringement party Based on the actual losses; 2. Based on the illegal gains of the infringer; 3. Statutory compensation.
There are some specific methods 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. Based on the actual losses of the infringed party
"Actual losses of the right holder" It can be calculated according to the following methods:
1) The amount of profit reduction caused by infringement;
2 ) 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 the sales volume of the right holder's copy is multiplied by the profit of each copy;
5 )The number of infringing copies multiplied by the right holder’s profit per copy;
6) The rights holder’s licensing contract cannot be performed or is difficult to perform normally due to infringement expected profit loss;
7) Losses caused by the decrease in the value of the rights holder's works due to infringement;
8) Other methods of determining the rights holder's actual losses.
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 the court determines the amount of infringement compensation, At the request of the infringed party, the amount of compensation can be calculated based on the direct economic losses suffered by the infringing act and the expected lost benefits, or the amount of compensation can be calculated based on the benefits gained by the infringer due to the infringing act. 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 48 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.”
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, Mainly involving disputes over compensation for damages to personal rights of authorsCompensation for damages involving citizens' or legal persons' rights to their names, title rights and other goodwill. 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 with wide influence, and thereby gaining a greater reputation for the defendant
3) Seriously distorting or tampering with other people's works
4) Without permission, publishing the collaborative work in which the plaintiff mainly participated in the creation in his own name, and allowing the defendant to gain a greater reputation
5) He did not participate in the creation, but signed his name on the plaintiff's works in order to seek personal fame and fortune
6 ) Seriously distorted the image of the performance and brought negative impact to the plaintiff’s social image
7) Produced and sold works counterfeiting the plaintiff’s signature, which had a greater impact
8) Other circumstances in which the right holder’s mental damage consolation payment should be paid.
For moral damage to copyright, other civil liability methods should first be applied according to the circumstances of the damage, such as non-property liability methods such as cessation of infringement, public apology, elimination of influence, restoration of reputation, etc. . Compensation for mental damages is only applicable when the circumstances are serious and the use of non-property liability forms is obviously insufficient to protect the victim's mental rights and interests.
The amount of solatium for mental damage should be 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. Determined comprehensively. 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, courts in various regions In the practice of copyright infringement cases, other calculation methods for compensation have also been created and accumulated.
1) Reasonable transfer fees, royalties, license fees and other income remuneration will be used as the standard of compensation
Copyright usage fees, transfer fees, etc. generally have certain standards set by relevant competent authorities, orThere are contract standards that can be compared between the parties, as well as usage fee standards for other units in the same industry and at the same level. These standards are generally objective and will not be affected by dispute factors between the parties. Such as copyright remuneration, 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. They believe that this is the simplest, easiest to operate, and is also a 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 exceeds 1,000 yuan. Some writers publish 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 royalty rate on the royalty rate and multiply it by double or multiple 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 case, 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 infringer; third, look at the illegal profits of the infringer; fourth, look at the extent of the infringement;The infringer's social popularity depends on the local socio-economic development level. This calculation principle is just like the principle of "mental damage" compensation, which is difficult to grasp and operate.
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 compensate according to the infringer's illegal income. Give compensation. If your situation is more complicated, the Legal Savior Network also provides online lawyer consultation services. You are welcome to seek legal consultation.