Research On Copyright Infringement Damages

The birth of copyright compared to other civil rights are later, as a young right, thelaw for the regulation is not very perfect, especially in the copyright infringementdamage compensation, there are some controversial in academic and judicial practice:First, because of the "copyright law" do not provide the liability principle and burdenof proof on the damage compensation, the parties in the subjective malignantinfluence whether compensation results, and who will bear the risk in losingcontroversial. Second, the illegal income of the infringer and the actual loss of theright owner are not in the same standard to judge, and the specific calculation, isdifficulty, leading to a general applicable statutory compensation. But statutorycompensation according to the nature of tort, leading to inadequate compensation in asituation of "Many reasons lead to one result"; moreover, because the legalprovisions in the calculation of compensation mode set sequence, it cannot reflect thesubstantial protection of the parties; The third, the punitive damages have introducedinto the new draft, but the copyright is a kind of the civil rights, and the traditionalcivil rights regard "filling principle" as the basic principle of damage compensation,so whether the introduction is suitable, the academic and practical still debate.From the perspective of Law and Economics, there are three rules of remedy intort, this paper discusses the theory of transaction cost, obtained the result that in thefield of copyright, we should use "property rules" which is strong relief to the humanright. So people want to get right, they can only be reached by transaction way, andshall not pre tort compensation after the event.Under the guidance of "property rules", the principle of liability on copyrightinfringement damages cannot just apply the narrow sense of principle of fault liability,on one hand, the direct infringement can use the narrow sense of principle of faultliability; on the other hand, the indirect infringement should use doctrine ofpresumptive. Then, combined with the "copyright law"(Draft), we can make specificjudgments to the illegal income of the infringer and the actual loss of the right owner.The author thinks, the compensation for the actual losses should include indirect lossand non property damage; and for the returning of infringer’s illegal income, we shallbe limited to the existing benefit. The nature of this right of restitution is different inillegal profit and illegal management, this right is a special right of claim. Finally, in the statutory compensation provisions, we can reference American copyright law,according to the number of works to compensation; it can solve the problem of "Many reasons lead to one result " infringement. At the same time, we also be notedthat under the guidance "property rules, we should throw the sequence away, givepeople the right to choose the most favorable way of compensation.Finally, it should also be clear that, due to the provisions of the existing termshave no punishment, the author thinks that the introduction of punitive provisionshave certain realistic possibility. At the same time, from the perspective ofjurisprudence foundation and method of economics, we support the introduction ofpunitive provisions to the copyright infringement damages.