A Comparative Study On The Compensation For Copyright Infringement Between China And Germany

In this paper,the use of case analysis,comparative research and literature research methods,then studies the similarities and differences between China and Germany's copyright infringement damages system.Through the comparison between China and Germany system,found the differences between the two countries in the copyright infringement compensation principle,on permission and reasonable transaction costs,the court discretion compensation necessity and standard way and the determining factors of court discretionary compensation,so the differences were compared and discussed.Through in-depth understanding of the German system,the German "copyright and neighboring right law" the subjective fault as a precondition of liability legislation worthy of our reference to learn,to determine the amount of compensation for infringement,the court discretion to determine the order of the amount of compensation,punitive compensation limit and scope and expressly request the court discretion "approach other suggestions on Amending the law are discussed,and the experience of German law in theory and judicial practice,expounds the system of China's copyright infringement,and should be compensation for damage calculation,in order to provide a valuable reference for China's legislation and practice.The theory of copyright infringement damages in our country thinks that the ultimate purpose of the legislation of copyright law is to promote the whole civilization and progress of the society,rather than the creation itself.There are forty-ninth deficiencies in the current copyright law because of the lack of norms of subjective intent and negligence,and so on,which are not enough for the first.Understanding the right of compensation for damage of different scholars in our country,there are three different views,respectively is:the claim of compensation for mental damage is a kind of civil rights;the right of compensation for damage is a kind of civil liability;the claim of compensation for mental damage is a kind of civil legal system.The right of claim for damages arising from the infringement of copyright is not only universal,but also based on the invisibility of the work."The draft amendment of the copyright law(Draft)"(hereinafter referred to as "the draft")Article 76 distinguishes four kinds of damages amount calculation,the actual damage law,the illegal income method,the rational transaction cost method and the discretion of the court,the "reasonable multiple" rights transaction costs of the new calculation method the ceiling is raised,the court discretion of compensation to one million,and the first increase in the terms of punitive damages.According to the German civil law,the tort liability of the infringer is based on the fault,and the right of claim for damages is based on the illegal acts against the legitimate rights of others.The German "copyright and neighboring rights law"provides for calculating the amount of compensation for the damage of the three kinds of methods,namely the actual damage law,the illegal income method and means of law.According to the German court's decision,the three calculation methods are mutually exclusive and does not allow cumulative calculation,also does not allow the use of mixed,but allows the conversion of its calculation in litigation.The calculation method of damages in Germany is similar to that in China,so the author chooses German copyright law as the object of study.Through the study of China's relevant norms and judicial practice,and the evolution of the German law and practice,found in German copyright compensation law did not increase the punitive compensation principle,our country follows the principle of compensatory compensation of continental law system,but the German works in the field of special considerations in the vulnerability and start one of the main the system of compensation for infringement and prevention function that tort,worthy of our reference.Look from the surface,Germany and China on licensing"draft" the reasonable transaction costs are similar,but on the discretion of the compensation court permit in Germany in nature is closer to our country,and the nature of law in Germany reasonable transaction costs in China's actual loss is equivalent to the rights of the victims.The court discretion of the compensation standard and mode of operation,compared to the other three calculation method is more conducive to human rights to obtain compensation,and the discretion of the court compensation mode is diversified.Before the "draft" compared to the State Copyright Bureau published the draft proposed in general,especially in the current copyright law has greatly improved.However,there is still room for further improvement.The liability provisions of Germany "copyright and neighboring right law" is the prerequisite for intentional or negligent,referring to Germany "copyright and neighboring rights law" in China and the relevant judicial interpretation and judicial practice,China's copyright law amending the law should be written to the degree of fault of copyright law,recognized it as the premise the liability and the elements.The provisions of the German "Civil Code" and "copyright and neighboring right law" to restrict access permissions to the infringement,the book has its reasonable place,so in the "76 draft" can also consider adding restrictive provisions necessary.The court discretion compensation is our reference formulation based on the common law,statutory compensation amount in China and the United States is not much difference,but close to the amount of statutory damages by the provisions of the United States is suitable for China is questionable.Before the judge and the society have yet to form a consensus,punitive damages should still adhere to the upper limit of the practice.At the discretion of the court in the compensation cases,the court has the nature of tort,infringement of people as the degree of fault and other factors,has obvious nature of punishment to avoid punitive damages,the court discretion in compensation for two to three times after lead to repeated punishment,it is suggested that the punitive damages provisions placed behind the provisions of right in the books,access to data."Draft" should be expressly "discretionary" meaning in court discretionary compensation terms,while giving the infringer rebut to overthrow the authority,to avoid unreasonable results of damage compensation.