Research On Determination Of The Amount Of Copyright Infringement Damage

The determination of the amount of copyright infringement damages has always been a difficult problem in the judicial practice and the theoretical circle.The fundamental reason lies in the non-material nature of the copyright object.Unlike traditional infringement damages,copyright infringement does not cause tangible damage to copyright objects.Therefore,the traditional method of calculating the amount of infringement damages is difficult to apply to the determination of the amount of copyright infringement damages.In view of the particularity of copyright infringement damage,China's current "Copyright Law" stipulates the methods for calculating the amount of damages for copyright infringement caused by actual losses,infringement profits and statutory compensation;the people's courts at all levels sum up in the trial practice according to the special circumstances of the case.Discretionary calculation method for compensation;in addition,the draft of the third revised draft of the Copyright Law increases the calculation method for a reasonable multiple of the license fee.In the case of copyright infringement damages,although the law gives the right holder a large number of optional calculation methods,in the practice of court trials,the applicable proportions of various calculation methods are seriously dysfunctional,and the application of statutory compensation is excessive,which leads to copyright infringement damage.The amount of compensation seriously deviated from the copyright value,and the result of the overall judgment of the court was low.Therefore,it is necessary to further improve the method for determining the amount of damages for copyright infringement in China,so as to effectively strengthen copyright protection.This paper determines the status quo of the damage infringement of copyright infringement in China,and makes a deep analysis of the reasons for this situation.It is believed that the reason for this situation is that the law imposes too much principle on various calculation methods and lacks specific operational guidelines..On the basis of summing up the experience at home and abroad,the author puts forward his own shallow suggestions.This article is divided into four parts:The first part,based on the principle of determining the amount of copyright infringement damages and the nature of "damage",provides a theoretical basis for the calculation of the existing method of calculating the amount of copyright infringement damages in China,and introduces the calculation method of the amount of copyrightinfringement damages in China.Applicable mode.The second part examines the methods for determining the amount of damages for copyright infringement in the United States,Germany,and Japan.It is found that in the lawsuit for compensation for copyright infringement damages,the US courts pay more attention to the identification of actual losses and infringement profits through refined litigation strategies.When the amount of compensation is difficult to determine,it is also resolved by means of statutory compensation;Germany usually determines the amount of compensation based on the standard of license fees,and Germany and Japan also solve the problem that the amount of damages for copyright infringement cannot be determined from the perspective of procedural law.The third part summarizes in detail the determination of the amount of compensation for copyright infringement damages in China,the generalization and simplification of statutory compensation,the lack of proof of the plaintiff,and the overall low amount of court awards.The author believes that the reasons for this situation are both facts.Reasons: If the evaluation of copyright value is difficult,the concealment and complexity of the infringement,and the right holder cannot prove it;the reasons for the application of the calculation method are difficult to prove the actual loss,the contribution rate of the infringement profit is difficult to determine,and the license fee standard is difficult to determine.The statutory compensation standard is unknown.The fourth part is aimed at determining the status quo and dilemma of the amount of copyright infringement damages in China.The author puts forward the perfect ideas from three aspects.First,the order limit of the calculation method is removed from the legislative system,and the party is given the right to freely choose;the legal regulation of discretionary compensation is added in the Civil Procedure Law and the Copyright Law,and the discretionary compensation method should be applied cautiously.The standard of proof for reducing the“actual loss”and“infringement profit”of the right holder,and expanding the applicable space for the calculation of the actual loss,the infringement profit and the reasonable multiple of the license fee.Second,the improvement of the calculation method: 1.Determine the actual loss through the“contrast method”;2.Identify the profit “total income” on the basis of the evidence disclosure,deduct the reasonable expenses from the “partial cost calculation method”,and rationally distribute the benefits.Assessed burden of proof;3.proposes a three-fold standard for determining the license fee,and advocates the identification of license fee standards through the license contract registration record.Thirdly,in view of theshortcomings of statutory compensation in China,it is proposed to determine the different compensation bases according to the type of work and the type of rights violated.On this basis,the impact of the discretionary factors on the amount of compensation is refined.