Study On The Application Of Intellectual Property's Statutory Compensation In China

Intellectual property has played an increasingly prominent role in the market economy. While bringing enormous benefits to right holders, it meanwhile faces many challenges of tort. Due to the openness of intellectual property and the disguise of tort, right holders often have difficulties to fully prove their actual loss or the infringer's profit. Inadequate compensation can not safeguard the interests of right holders and therefore intellectual property legislation setting statutory compensation system. Statutory compensation is not only the embodiment of basic principles of civil law, but also based on strengthening right of tort law and meanwhile it is subject to the nature of intellectual property law which is protecting innovation. In real life, statutory compensation can also motivate social innovation; improve the efficiency of proceedings and strengthening social justice.Application of the statutory compensation is an important way of functioning of the statutory compensation system. It includes application of the subjects, principles, patterns, order, unit, factors and so on. Many countries and regions have set statutory compensation in their legislation, and so have the Trips. China's intellectual property law system involving statutory compensation mainly includes the interpretation of law, justice and local judicial guidance and so on. But there are deficiencies in application, characterized by:fuzzy prescribed by law; lack of effectiveness of the judicial interpretations and local judicial guidance; inconsistence of legislation on the application of statutory compensation, including the prerequisites, order, scope, reference factors, and expressions. To protect intellectual property of rights holders, statutory compensation system should form a unified system as soon as possible.Considering the statutory compensation system in China, combined with relevant experience, future of perfecting the application of statutory compensation is mainly focused on the following aspects:improving the legal hierarchy of judicial interpretation and local of judicial guidance; extend the scope of the statutory compensation into line with the broader intellectual property; consolidate the contents of statutory compensation system; establishing the independence of compensation for mental damage. China's complete IP statutory compensation system should include the followings:First, the parties have the autonomy in selecting the application of statutory compensation, the court in accordance with its responsibility can decide to apply statutory compensation in exceptional circumstances. Second, the amount of application is the base type. Third, the order of application should respect the parties'selection. Fourth, the number of rights should be taken as the unit of application. Fifth, both subjective and objective factors, both right holders and the actor should be taken into full account. Specific attention should be paid to the balance between the interests of the parties when sharing the burden of proof and litigation costs. At the same time, professional assessment should be used more actively in judicial activities.