Study On Judicial Application Punitive Damages System Of Copyright In China

On November 11,2020,the Copyright Law of the People’s Republic of China carried out its third amendment,fifty-four of which for the first time provided for punitive damages in the area of copyright,this revision is not only the system requirement for China to adhere to the innovative development strategy and build an innovative country,but also a favorable response to the predicament that in practice copyright infringement can not obtain full compensation.But whether punitive damages should be included in the Copyright Protection System,there are many arguments between theoretical and practical circles in our country.The main points of dispute focus on: First,the functional orientation of punitive damages.The legitimacy of the introduction of punitive damages system.Punitive damages,compensatory damages and the order of application of statutory damages.IV.Determination of the calculation standards for punitive damages.This article mainly unifies the civil law theory,the law economic analysis method,analyzes our country to introduce the copyright punitive damages system the justification,and through overseas related punitive damages stipulation and the application,this paper tries to probe into the problems of the range of applicable conditions,the selection of compensation sequence and the calculation of compensation base.This article is divided into the following sections:The first part introduced our country copyright infringement present existence protection predicament as well as the academic circle argument viewpoint.According to the analysis of 100 copyright infringement cases,it is found that although the three compensation methods provide the basis for the infringe to calculate the loss,however,there is still a big gap between the amount of loss claimed by the plaintiff and the amount of compensation awarded by the Court.Due to the immateriality of the object of copyright,the right holder’s control over the right is weak,so it is difficult to seek protection when the right is infringed.In judicial practice,the legal compensation as bottom-covering is initially priced by the legislation,not by the market.Therefore,no matter for the frequent nature of the tort itself or the relief after the fact,the victim’s loss can not be effectively compensated.The scholars who support the introduction of punitive damages into copyright law in the academic circle mainly focus on the particularity of the object,the insufficiency of intellectual property protection and the insufficiency of giving evidence to prove the legitimacy of the system,and punitive damages as an aggravation of liability,its application should be strictly limited.The opponents argue that the system of punitive damages violates the principle of compensation for losses in traditional civil law,and is obviously characterized by penalty.As a special law of Civil Law,copyright law should uphold the principle of compensation for losses,it is not appropriate to introduce punitive damages system in the field of intellectual property.The second part is the theoretical analysis of punitive damages,which includes the theoretical analysis of the legitimacy of punitive damages and the comparative analysis of punitive damages.Applying the punitive theory of tort liability in the science of Civil Law,combined with the fact that copyright works are separated from the tangible carrier,are more easily copied and disseminated,and the value of the works is embodied in the characteristics of high originality,it is proved that the introduction of punitive damages system into the field of copyright has a legitimate civil law basis.According to the theory of Utility maximization problem in law and Economics,in order to realize the effective allocation of market resources,it is necessary to regulate the external transaction cost of the market through a reasonable legal system.The legislative theoretical basis of punitive damages is based on the principle of maximizing the benefit of Law and Economics,and it is deduced that the system of punitive damages for copyright should establish the functional orientation of “punishment first,compensation second”.In anglo-american legal system countries such as Britain and the United States,there are laws which embody the system of punitive damages applicable to infringement of copyright,focusing on the deterrent function of punishing and restraining similar illegal acts,as a civil law system,Germany’s conservative attitude toward the punitive damages system of copyright has gradually changed,and in practice,the oblige is encouraged to claim higher damages.The third part is the applicable conditions of punitive damages and the ways to improve them.It expounds in detail the elements of “intentional” and “serious circumstances”in the articles of Law,the reference factors affecting them and how to confirm their existence through objective evidence,this paper gives a reasonable explanation to the judgment of “serious circumstances” in practice,and whether it belongs to “serious circumstances” should be judged by considering its negative effects on market,scale,lawsuit and effect.The Way to perfect the system of punitive damages includes the optimization of calculation and the relationship between punitive damages and other forms of compensation.The standard of calculation should be well connected with the burden of proof in civil cases,and the evidence system should be used to encourage the parties to give evidence actively and solve the dilemma that the damages can not be ascertained.According to the principle of proportional coordination,the multiple of punitive damages should be coordinated with the subjective intention and the objective circumstances of the tort,so that the punishment should be appropriate and the crime should be punished as its own.The scope of the base figure of punitive damages is made clear,and the reasonable expenses and legal compensation of the right holder’s rightdefending expenses are excluded from the base figure.When the compensation base number can not be calculated,the punitive compensation system has no applicable basis,and should be applied to statutory compensation.