Study On Discretion Damages Of Copyright Infringement

"No Remedy,No Rights ".This old legal proverb indicates the essential meaning of legal remedy to rights protection,while the proper boundary and rational dimension have becoming a classical issue that tons of great sages,philosophers and oracles searching for centuries.In judicial practice,the importance of remedy to rights are represented by compensation is reasonable or not,while the latter depends on scientific damage calculation methods.In the field of Chinese copyright infringement damages amount calculation,legal sequenced methods include actual loss of copyright owner,illegal gains of infringer and statutory damages.In addition,Supreme People's Court introduced judicial interpretations on Copyright Law and Tort Law in order to refine damage calculation methods,However,practical effects may not so ideal when facing varied copyright tort cases.Actually,based on complex cases in judicial practice and principle of No Refuse Referee,judges always adjudicate cases according to discretionary power,so does field of copyright damages calculation.With the support of major subject(Humanities and Social Science in Education Ministry:Research on Intellectual Property damage calculation Standard)that hosted by professor Cao Xinming,273 cases that found in database of copyright cases used discretion damages,and most display:"according to factors like act of tort,subjective fault of infringer and so on,discrete the amount of compensation.....".This kind of compensation computing is highly similar to statutory damages,namely the specific compensation amount is decided by discretion power of judges.Naturally thinking,the only difference between statutory damages and discretion damages may locate on whether there exist the limitation of legal compensation amount,while in this sense,statutory damages obviously have bundle property,and discretion damages have more free appreciation property.According to author's statistics,legitimate basis of discretion damages focus on articles as follows:article 19,20 in Tort Law;article29 in The Notifications of the application of People's Republic of China tort Law by Supreme People's court;article 49 in Copyright Law;article 25 in The Interpretation of law application on cases of civil disputes over copyright by Supreme People's Court.Actually,imperfections could be found in articles above:1,article 19 in Tort Law claims the amount of compensation should decided by market price,but it is not clear that how make market price and whether totally base on market price.As a matter of fact,article 19 is kind of fragile when facing cases with a tendency of profit-making;article 20 in Tort Law limits its application to property loss which caused by personal rights violation,while defect is clear when it comes to property right of copyright.2,Article 29 in The Notice says In a highly abstract way that other calculation methods could be used if legal ones cannot apply,however,it is not clear what so called "other calculation methods" exactly means and whether these methods could be straightly legislative authority.3,Article 49 in Copyright Law merely makes three legal calculation methods,however,not says the legal amount limitation could be broke when compensation within legal amount obviously unfair.4,Article 25 in The Interpretation claims compensation should take specific case details into account,but does not show whether legal amount limitation could be broke too.From interpretations above,these articles cannot be quoted in written judgement as straight legislative authority,while merely according the nature of legislation to explain discretion damages.For most who have never had professional legal study,especially case parties,deep mistrust even hurt of judicial authority may appear when straightly legal authority on compensation cannot be found in written judgement.Statutory damages and discretion damages lave similar shape because of the similarity of nature and application scope,and the distinguishing difficulty become harder when strategic written judgement appears under the discretion damages.Therefore,double needs come from theoretical research and judicial practice on discretion damages appear.Also root in this practice and rationality of discretion power to typical cases,this research has kind of theoretical value and practice meaning.This research is divided into five chapters specific studies on related issues except introduction.Chapter one summarize some basic issues about copyright discretion damages.Find development vein of discretion damages in China with historical research methods.Pairwise comparison between statutory damages,discretion compensation and discretion damages after reasonable interpretation about discretion damages over nature,meaning and basic principle.According to comparisons above,make a conclusion that discretion compensation and discretion damage is identical,and statutory damages covered by discretion damages,and discretion damages comprise of statutory damages and in-statutory damages.From this part,it is anticipated that make a clear cognition on related conception,application scope and provide logic starting to latter writing.Chapter two mainly locate on justifiable basis of copyright discretion damages.This part primary explain the cornerstone of copyright discretion damages,multi-dimension research on jurisprudence foundation of copyright discretion damages in logical and Metaphysical ways.Meanwhile,jurisprudential research on copyright discretion damages that based on rights-weakening and interests-sharing theory,interests balancing theory,litigation benefits theory and justice and fairness theory.From theoretical research above,discretion damages could taken as a share from the copyright owner's monopolistic interests;the procedure of discretion is a balance between public interests and copyright.Reasonable discretion which combine with objective facts and relative proof not only make a contribution to the achievement of substantial justice,but also tremendous improving the efficiency and benefit of litigation.In general,discretion damages in copyright field have unquestionable justifiable basis.Chapter three focus on system of copyright discretion damages in foreign countries.In this part,the major research method is comparative,vertical and horizontal,while the targeted countries or districts are German,Japan and Taiwan Province that have highly developed copyright discretion damages.In Germany model,judges have a wider scope of discretion which include compensation amount and the occurrence of tort;while Japanese model and Taiwan Province rational tightening the discretion power,namely discretion merely occurs upon compensation amount that based on the occurrence of tort truly proofed.The property that three mainly model take is also different,specifically manifested in Proof standard lowering theory,Discretionary evaluation theory,compromise theory.It is excepted that meaningful reformation way could selected through taxonomic study and Generality summary on different discretion model and judicial practice.Chapter four discusses the inspection of current situation of Chinese copyright discretion damages.In this part,systematic inspect the current statutory and judicial practice of copyright discretion damages in China.In current statutory,deeply analyse Chinese Copyright Law,Tort Law,Civil Procedure Law,related judicial interpretation under the background of General Principles of Civil Law carry into effect,locate the deficiencies and scope of discretion damages within current statutory,and make a solid foundation for latter reformation ways picking.Meanwhile,aiming at cases in case-database,make a empirical research on Chinese discretion damages from 2011 to 2016.According to statistics above,study on the application proportion,consideration factors and judicial presentation statutory damages and in-statutory damages.It is expected that reformation methods could provided for chapter five through study,statistic and handle in chapter four.Chapter five concentrate on the construction of Chinese copyright discretion damages.The key points of this part lies in introducing several typical constructive ways and analysing merits and demerits,ways namely amending Civil Procedure Law,Tort Law,Copyright Law or issuing legal explanation.Because of huge amount discretion damages occur in Chinese judicial practice,establishing legal statue,clearing application scope and condition have priority.It is considered that most suitable method for reforming our discretion damages is legal explanation when thinking about discretion damages in our current statutory.Specifically saying,the construction of discretion damages through legal explanation have merits which other models don't,namely flexibility,and that kind of flexibility just make itself priority selection.Meanwhile,timely adjustment should be made on distribution of evidential burden,discretion power and publicity of discretion evaluation.Specifically saying,Chinese discretion damages should based.on the occurrence of tort truly proofed because of half-baked doctrine of discretional evaluation of evidence in China,in other words,the scope of judge's discretion power is limited to compensation amount,and the proof burden of tort occurrence although on case parties;the explanation of compensation amount should not merely be restricted to written judgement,ought to be through the whole procedure.In other words,the adoption or rejection of decisive evidence to compensation amount and final identification process should be explained or illustrated in a degree.