The Research On China's Intellectual Property Statutory Damages

With the rapid development of the Internet,the infringement of intellectual property has received much attention,as the intangibility of intellectual property,the susceptibility and the difficulty of determining the amount of damages, have lead to the calculation of the amount of compensation is very complex. In order to solve the problem of calculating the damages in the field of Intellectual Property, the statutory compensation was introduce to China's system. The statutory compensation system get more and more favored by the judges, but the problems occur in the process of application, such as how to simplify the calculation, to improve the efficiency of judicial work, saving litigation costs and social resources, more conducive to the rights protection of the stakeholders and so on. Therefore, the statutory compensation for intellectual property infringement damages should be reconsidered in the whole compensation and civil law system, in order to perfect it as private law and the specificity as the intellectual property law. By analysing the structure, function, relationship between different systems, the origine as well as the history of statutory compensation, this thesis aims to redefine of the theory of statutory compensation, which would be basis for the pursuing of a better intellectual property system, through research of the evolution and the purpose of the legislators.This thesis is divided into four parts: preface, main body, ending, and appendix. The main body is composed by six parts: "Intellectual Property and characteristics and definition of statutory compensation," "the value of intellectual property statutory compensation", "Improving China's intellectual statutory compensation of property rights ", "China's intellectual property and the amount of statutory compensation standards of measurement", "Improvement to reference of statutory compensation factor of Intellectual Property and "proposed draft of the statutory compensation intellectual property rights provisions".The first part is the definition and features of statutory compensation. Clarifing the basic theory of the statutory compensation system is crucial to find out the problems. A comparative study is done on the broadest and narrow sense of statutory compensation, in terms of the application, relationships and differences. Then the judges will be clear about the amount of compensation and it is necessary to embodied this theory in the definition of compensation. However, as the definition of statutory compensation on intellectual property rights are not uniform, and intellectual property rights of statutory compensation system itself is again the result of referring to foreign experience. Therefore, the thesis extract United States, Japan, Germany, Canada, Italy and Taiwan, China and other countries (or region) experience on intellectual property law statutory compensation provisions, defining that "under legal circumstances, the judge determine a reasonable amount of compensation under a predetermined amount set by laws and other factors". For this definition, the thesis also analyzed it from the definition designing and comparison of the two other titles. And stressed the discretionary nature, the statutory nature, the limitation of amount and the characteristics of statutory compensation.The second part, the value of statutory compensation. The value of statutory compensation is based on the value of intellectual property system, which is designed to promote justice, efficiency, stimulate innovation, and strengthen social justice awarenee. The statutory compensation system encourage innovation through strengthening the awareness of the rights protection and the incentive function of intellectual property law are reflected in the compensation system. As for strengthening social justice, the establishment of a statutory compensation system of intellectual property rights is to protect the rights of people and even further balance the interests of various stakeholder. limit the discretion of the judge was reasonable and necessary to pursue the real justice and value. This thesis focuses on effective implementation of litigation and rights protection, because the essense of intellectual property is promoting the efficiency and save the lawsuit resources and increase social wealth.The third part is of the improvment about the condition for statutory compensation. This part discusses theapplication model, time, exempted from compensation and other issues. The thesis analyzes the statutory compensation status and problems. Reviewing "Copyright Law", "Trademark Law", "Patent Law" and relevant judicial interpretations of intellectual property provisions, and Higher People's Court guidance, the article pointed out the problems and solutions to improve statutory compensation. In the first place, this thesis presents the general applicable conditions, priority, the reason and exemption from liability of statutory compensation . Furthermore, a detailed elaboration is given to the statutory compensation model, determining reasonable compensation time etc.The fourth part is the improvement of standard measurement of intellectual property and determing the amount compensation. In theory, this problem is the formation of the Tort standards, behavior standards, product standards, as well as number of stakeholder standard, but there is no consensus in Judicial practice. Lacking of reasonable, strong theoretical support, we can only retreat to the Highe People's Court's "guidance", which leads to the embarrassing situation that"similar cases got different result", damaging the unity of the legal system and judicial authority. To address the above issues, the thesis gave a comprehensive analysis on the judicial status of the "guidance", identified the problems of the measurement standards; and selected the"number of rights"as a measurent, regarding its accuracy. In addition, by studing the foreign experience, the article also researched on the amount of statutory compensation and presented suggestions.Part V is about the perfection of reference factors for IP statutory compensation. The article firstly analyzes China's intellectual property rights or statutory compensation reference factors Status and Problems. Intellectual property infringement damages may relate to both physical and the spirit damage which means the"loss"could be accountable or intangible,so the compensation should be compensatory and punitive to avoid the future tort. In the end, the thesis set the intellectual property statutory compensation reference factors, and specific rules.Part VI is the explaination for the draft proposal of intellectual property provisions.The author proposed draft proposals for intellectual property provisions of the statutory compensation, and specific description of the reasons. Suggestion was given to applicable condition of statutory compensation, applicable situation, applicable mode, time and restrictions. Furthermore, the"number of rights"was set as the compensation standard, and also the measurement and the amount of of intellectual property standards compensation was settled. Finally, the thesis, from a overall perspective, proposed the general reference factors, fault tort rules, non-stopping infringement rule, recommendations and instructions.