Judicially-Imposed Compulsory License In Copyright Infringement Litigation

The compulsory licensing system of copyright is the judicial adjustment adopted by the court for the application of remedy measures in the infringement proceedings.It is intended to achieve a balance of interests through appropriate restrictions on remedy to prohibit copyright infringement.The cessation of infringement is generally applicable in litigation of China's intellectual property violation,but it faces many practical dilemmas in the application process: in legislation,the generality of legal norms makes it lack of operability;in justice,nearly absolute application and court freedom The independent choice of discretion affects the unity of the system.However,a new remedy has emerged in the judicial practice in recent years,that is,for some reasons,the court does not require the defendant to cease the infringement which is found,but it forces the defendant to pay certain reasonable expenses to the plaintiff.The new method is the judicial compulsory license,or tort non-cessation.In 2006,the Supreme Court of the United States initiated the precedent of judicial compulsory license in the patent field for the eBay case.Some courts have also explored the utilization of judicial compulsory license,and many scholars have even called for careful application of injunction in copyright infringement proceedings.In the patent infringement of Wuhan Jingyuan Environmental Engineering Company in China in 2009,the court ruled for the first time that the defendant should pay the plaintiff the use expense rather than stop the tort based on the consideration of public interests,which is hot-debated in the intellectual property community.After that,Article 26 of Interpretation(II)of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement Dispute Cases promulgated in 2016 clarifies that,upon the consideration of national interests and public interests,the court allows the reasonable damages instead of infringement cessation for patent violation.From case judgment to judicial interpretation,Changing the absoluteness of stopping the application of infringement,considering the balance of interests of all parties in intellectual property infringement litigation,and establishing a complete remedy system have become the development direction of intellectual property rights.The breakthrough in the patent field laid the foundation for judicial compulsory licensing,the equilibrium of interests,especially for the public,is also a crucial factor for the copyright justice.Therefore,the proper utilization of judicial compulsory license in copyright infringement is also worthy of deliberation.However,there are questions that cannot be ignored.For example,should the application of copyright be different? What are the applicable considerations? What relations should be dealt with in the process and to what extent? These are key questions in the judicial compulsory licensing system of copyright.Taking typical cases in China and the United States as clues,this paper,based on judicial practice,expounds the progress from infringement cessation to "tort non-cessation" and from patent right to copyright.Additionally,to lay a theoretical foundation,it explores the rationality and necessity of the judicial compulsory license system from the copyright creation purpose,the interest balance theory and the copyright restriction theory development.At the same time,Judicial compulsory licensing is a restriction on absolute rights and should prevent abuse of rights and induce the prevalence of infringement,the difficulties in the establishment of the system lie in the delineation of the application scope,the interest balance and the reasonable compensation,all of which will finally be for views and suggestions in this paper to fuel the establishment of the judicial compulsory license system for copyright,and to improve the current legislative system.