Compensation Standards for Copyright Infringement
The copyright owner's works are protected by law. If others infringe the copyright and cause losses to the copyright owner, the copyright owner has the right to sue the People's Court and demand compensation for the losses. So, what is the compensation standard for copyright infringement? Today, the editor of Hualu.com has compiled the following content to answer your questions and hope it will be helpful to you.
What is the compensation standard for copyright infringement?
According to Article 48 of the Copyright Law: "If a copyright or copyright-related right is infringed, the infringer shall compensate the right holder according to the actual loss. If the actual loss is difficult to calculate, the infringer may compensate according to the illegal gains of the infringer. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement. If the actual loss of the right holder or the illegal gains of the infringer cannot be determined, the court shall order compensation of less than 500,000 yuan based on the circumstances of the infringement." There are three ways to calculate compensation for copyright infringement in my country: 1. Based on the actual loss of the infringed; 2. Based on the illegal gains of the infringer; 3. Statutory compensation.
There are also some specific practices in judicial practice. We can choose to apply these compensation methods and calculate them in a way that is beneficial to us. The following introduces the application and calculation of the three compensation calculation methods and the main practices in judicial practice.
1. Based on the actual losses of the infringed party
The "actual losses of the right holder" can be calculated according to the following methods:
1) The amount of profit reduction caused by the infringement of the right holder;
2) In case of infringement in newspaper, book publishing or similar means, the relevant provisions of the state on royalties can be referred to;
3) The reasonable license fee of the right holder;
4) The number of sales reductions of the right holder's copies multiplied by the profit of each copy;
5) The number of infringing copies multiplied by the profit of each copy of the right holder;
6) The expected profit loss caused by the inability or difficulty of performing the right holder's license contract due to infringement;
7) The loss caused by the decline in the value of the right holder's work due to infringement;
8) Other methods to determine the actual loss of the right holder.
In addition, the expenses incurred by filing a lawsuit should also be included in the scope of compensation. Filing a lawsuit may incur many expenses, including: the cost of hiring a lawyer, the cost of investigating and collecting evidence and the travel expenses paid to stop the infringement, the cost of reviewing and collecting evidence materials, and the cost of appraisal of whether infringement has occurred. The investigation fees, attorney fees and other expenses incurred by the infringed party due to litigation should be included in the scope of the actual losses of the infringed party so that the parties can obtain full and reasonable compensation. These expenses are the expenses that the infringed party must actually spend to stop the infringement, and should be the actual losses of the infringed party.
2. Based on the illegal gains of the infringer
Article 10 of the "Interpretation on Several Issues Concerning the Application of Laws in Trial of Cases Involving Computer Network Copyright Disputes" adopted by the Supreme People's Court on November 22, 2000 stipulates: When determining the amount of compensation for infringement, the court may, at the request of the infringed party, calculate the amount of compensation according to the direct economic losses and expected benefits lost due to the infringement, or calculate the amount of compensation according to the benefits obtained by the infringer due to the infringement. If the infringer cannot prove its costs or necessary expenses, the income obtained from the infringement shall be the benefits obtained.
"The illegal gains of the infringer" include the following three situations: 1) Product sales profit 2) Business profit 3) Net profit. In general, the defendant's business profit should be used as the amount of compensation. For example, if the infringer publishes and distributes a text work for which the copyright holder has no permission, and the total number of copies is 5,000, then the amount of compensation for infringement is the unit price of the book multiplied by the number of copies issued, 5,000, minus the reasonable cost of printing, distribution and distribution discounts, and the infringement income can be obtained.
3. Statutory compensation
Article 10, paragraph 2 of the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases Involving Computer Network Copyright Disputes" adopted by the Supreme People's Court on November 22, 2000 stipulates: "If the amount of loss of the infringed party cannot be determined, the court may, at the request of the infringed party, determine the amount of compensation from RMB 500 to RMB 300,000 based on the circumstances of the infringement, and shall not exceed RMB 500,000." Article 48, paragraph 2 of the Copyright Law stipulates: "If the actual loss of the right holder or the illegal income of the infringer cannot be determined, the court shall, based on the circumstances of the infringement, award compensation of no more than RMB 500,000."
The above provisions are statutory compensation. When it is difficult to ascertain the actual damage of the infringed party or the illegal income of the infringer, the court shall determine the specific amount of compensation within the statutory compensation range based on the nature of the infringer's fault, the circumstances of the infringement and other factors. According to Article 48 of the Copyright Law. The premise of statutory compensation is that the actual loss of the right holder or the illegal income of the infringer cannot be determined and is difficult to calculate. The amount of compensation is determined by the court, and is generally determined by the trial court based on the circumstances of the infringement, the impact of the infringement, and other aspects. The highest amount is 500,000 yuan, and there is no lower limit.
4. Mental damages
The mental damages of copyright can only be limited to the damage to the personal rights of the author, that is, mainly the damages to the name rights and name rights of citizens and legal persons in the disputes over the damages to the personal rights of the author. Mental damages are not applicable beyond this scope. Such as:
1) Publishing the plaintiff's work without the plaintiff's permission and seriously violating his will, which has a negative impact on the plaintiff's reputation and social evaluation
2) Plagiarizing the plaintiff's works in large quantities and with wide influence, and thus making the defendant gain a great reputation
3) Seriously distorting and tampering with other people's works
4) Publishing the plaintiff's main collaborative work in his own name without permission and making the defendant gain a great reputation
5) Signing the plaintiff's work without participating in the creation for personal fame and gain
6) Seriously distorting the performance image and bringing a negative impact on the plaintiff's social image
7) Producing and selling works that forge the plaintiff's signature, which has a great impact
8) Other situations where the right holder should be paid mental damages.
For copyright mental damages, other civil liability methods should be applied first according to the damage situation, such as stopping the infringement, publicly apologizing, eliminating the impact, restoring reputation and other non-property liability methods. Mental damages are only applied when the circumstances are serious and the use of non-property liability forms is obviously insufficient to protect the victim's mental rights and interests.
The amount of mental damage consolation money should be determined comprehensively based on the defendant's degree of fault, infringement method, infringement circumstances, scope of influence, infringement profit, ability to bear compensation liability and other factors. Mental damage consolation money is generally not less than 2,000 yuan and not more than 50,000 yuan. .
5. Other calculation methods in judicial practice
In addition to the above provisions, local courts have also created and accumulated other methods of calculating compensation in the practice of trying copyright infringement cases.
1) Use reasonable transfer fees, usage fees, license fees and other income remuneration as compensation standards
Copyright usage fees, transfer fees, etc. generally have certain standards for relevant competent departments, or there are comparable contract standards between the parties, as well as usage fee standards of other units in the same industry and at the same level. These standards are generally objective and will not be affected by disputes between the parties. Such as copyright remuneration, copyright property rights transfer fees, etc. When dealing with copyright infringement damages, German judges often use the usage fees of the infringed rights as compensation. They believe that this is a simple, easy to operate, and fair and reasonable compensation method.
2) Compensation according to the standard of remuneration
In practice, the court calculates the number of words infringed and then compensates according to two to five times the standard of remuneration. According to the standard of remuneration issued by the relevant departments, the highest is RMB 100 per thousand words. Calculated at two to five times, the compensation is also very limited, and the highest compensation is only RMB 500 per thousand words. At present, in the cultural circle, some newspapers and publications invite famous writers to write columns, and the remuneration has exceeded RMB 1,000 per thousand words. Some writers can get millions of yuan for a best-selling book. If compensation is made according to the standard of remuneration, it is obviously not enough. At the same time, compensating for infringement according to the standard of remuneration is actually legalizing illegal behavior, which is not conducive to the correct protection of the legitimate rights and interests of the parties.
3) Compensation according to the standard of royalty rate
In practice, there are not many cases handled according to this standard, but there are cases that refer to this standard. For example, the case of copyright infringement between Walt Disney Company of the United States and Beijing Publishing House and Beijing Distribution Office of Xinhua Bookstore Head Office heard by the Second Intermediate People's Court of Beijing The court considered the royalty rate factor during the trial and believed that when the amount of compensation could not be determined by other methods, the court could use the royalty rate as the basis, and then multiply it by double or multiple times according to the situation, and use this amount as the compensation amount. The product of the royalty rate and the total price per unit multiplied by the number of printed copies is used as the compensation amount. The royalty rate is generally 6%-15% for different situations.
4) Determine according to the will of the judge
This is a major operating method in practice. Its biggest drawback is that, first, the law enforcement is not uniform. Due to different personnel hearing the case, or the influence of factors such as the value orientation of the presiding judge, similar cases are often judged to have different compensation in the same region, and sometimes the compensation for serious infringement is lower than that for minor infringement. Second, the compensation sometimes does not reach the actual degree of damage suffered by the parties, making it difficult for the parties to accept the judgment. In order to overcome the above drawbacks, some courts have proposed five principles for calculating compensation, namely, first, the severity of the infringement means, second, the actual degree of damage suffered by the infringed party, third, the illegal profit of the infringer, fourth, the social reputation of the infringed party, and fifth, the level of local social and economic development. This calculation principle is like the principle of "mental damage" compensation, which is difficult to grasp and operate.
If the copyright or copyright-related rights are infringed, the infringer shall compensate the right holder according to the actual loss. If the actual loss is difficult to calculate, the infringer may be compensated according to the illegal gains. If your situation is more complicated, Hualu.com also provides online lawyer consultation services, and you are welcome to seek legal advice.