Study On Judicial Application Of Punitive Damages For Copyright

With the general provision of punitive damages in the field of intellectual property rights in the Civil Code promulgated in 2020,the Copyright Law also introduced the punitive damages provision immediately afterwards,which means the comprehensive construction of punitive damages in China’s intellectual property legal system.In the Internet environment,copyright infringement cases are characterized by concealed infringement acts,large damage scope and rapid dissemination of infringing works,so theoretically,there is a large space for the application of punitive damages.However,judging from the judicial practice of punitive damages in the past trademark law,the punitive damages clause has not been fully applied.Examining the current situation of judicial application of the punitive damages provision of copyright,it is not difficult to find that the provision will face the following problems in its application: firstly,the lack of criteria for determining the elements of application,secondly,the difficulty in determining the calculation of the amount of punitive damages,and thirdly,the unclear definition of the applicable relationship between punitive damages and statutory damages.In view of the above problems,it is necessary to explore effective solutions by combining the characteristics of copyright.When understanding the intention of the punitive damages clause of copyright,only direct intention and indirect intention should be included.The determination of aggravation should focus on the factor of infringement consequence,but should not be bound to the infringement consequence,and can also be considered as aggravation when other objective factors reach the degree of aggravation.Intentional and aggravating circumstances are independent of each other,the relationship between the two.In order to accurately grasp the criteria for determining intentional and aggravated circumstances,the practice of generalizing the specific situation can be adopted in a typological manner.On the calculation of punitive damages,in principle,the three traditional base calculation methods of actual damages,infringement profits and royalties should be used as a priority and the subordination restriction should be abolished,and the calculation method of discretionary damages should be added as a supplement.Although the purpose of compensation for moral damages is to compensate the right holder for moral damages,it cannot be used as the basis for calculating punitive damages.The specific determination of multiplier should be combined with the characteristics of copyright to formulate the rules for calculating multiplier quantitatively and quantify the determination of multiplier.At the same time,it is also necessary to solve the problem of difficult proof from the implementation of the obstruction of evidence system,the establishment of the expert witness system and the adoption of the standard of preponderance of evidence,so as to help the determination of the calculation of the amount of damages for infringement.Regarding the problem of unclear relationship between punitive damages and statutory damages,it is more reasonable to choose the juxtaposition of punitive damages and statutory damages in the legislation.In terms of the specific scheme of the applicable relationship,the judge should give up the high-precision expectation of the calculation base and try to use discretionary methods to determine the base;the legislator should clarify the legal status and applicable rank of discretionary compensation,so that the application of discretionary compensation can be based on the law;in addition,it is also necessary to strictly limit the space of application of statutory compensation,reduce the application rate of statutory compensation,and reserve space for the application of punitive compensation provisions.