| Paragraph 5 of Article 54 of the newly revised copyright law stipulates: "when trying copyright dispute cases,the people’s court shall,at the request of the obligee,order the destruction of infringing copies,except under special circumstances." While clarifying the nature of the claim for "destruction",the provision also stipulates that there are certain restrictions on the application of the claim for destruction,but the theoretical basis and specific implementation rules of the restrictions need to be clarified.Generally speaking,the limitation theory of the right of destruction claim can be divided into three aspects: first,the limitation of the principle of proportionality;Second,the restriction of transaction security principle;Third,the restrictions of the principle of balance of interests.Based on these three theories,the specific rules for the limitation of destruction claim should include four situations: 1 Other disposal measures have been able to stop the recurrence of infringement;2.Infringing copies have entered the circulation field;3.Destroying infringing copies will cause a great imbalance of interests between the plaintiff and the defendant;4.Destroying infringing copies will harm the public interest.For the subsequent disposal of infringing copies that are not destroyed,the wishes of the parties must be respected,such as discount purchase,reaching a license agreement,etc.If the parties cannot reach an agreement,they can consider eliminating the infringement characteristics of the infringing copies and auctioning them or using the infringing copies for social public welfare undertakings.In addition,when the infringement damages the public interest and involves the administrative destruction system,it should take the protection of private rights as the premise and administrative punishment as the supplement.If the obligee has the intention to dispose of the infringing copy,it shall be allowed to dispose of it privately.If the obligee has no intention to dispose of it,it shall be destroyed by the administrative department. |
