A Study On Copyright Damages

For a long time, the development of China’s copyright system has a lot of problems,for example, negligence of rights of the holders, the bias of the calculation of the amountof infringement, the difficulty in the burden of proof. In the judicial practice, there areinconsistent standards with regards to the confirmation and the compensation amount ofinfringement of copyright. With the entry into the WTO and the signing of the TRIPS,those problems become more and more obvious under the impact of the well-roundedprotection system of copyright in western countries. Hence, finding a solution is urgent.Alleged copyright，it is nothing but the temporary monopoly of the holder to hisintellectual achievement. We can regard it as a temporary contract between the copyrightholder and the public. When the contract expires, the copyright owner shall lose theexclusive monopoly to his intellectual achievements, which shall be enjoyed by the publicdomain. Is it a one hundred percent sure thing that as long as copyright infringement exists,the infringer must shoulder the liability of paying damages? The answer is no. Only if itmeets tort constitutive requirements, the tort infringer pays for damages. In the same way,copyright infringement liability principles are the premise to weight whether it is aninfringement. The copyright infringement includes three imputation principles, theprinciple of fault liability, no fault liability principle, the presumption of fault liabilityprinciple.In this paragraph, the author adopts presumption of fault liability principles. Damagecompensation is the outcome for the liability of copyright infringement. Thus thecompensation principle is especially important. Overall compensation principle, equalizethe compensation and the actual loss. Limit compensation principle, emphasizes thatalthough the infringer must bear the whole responsibility for infringement, but whendetermining the damage compensation, the real economy capacity of the infringer shall betaken into consideration fully. Legal compensation principle requires the court gives a range for determining the exact damage amount to a particular case.How much the victim lost is very important. To determine the amount, there are fourways to go. First, the actual loss of the right owner can be found out, so these losses are toput on the infringer’s shoulder. Second, when the actual loss can’t be found out, theinfringer’s illegal income shall be the loss of the right holder. Third, take the permissionfee as the right holder’s payment which should have been paid. Finally, request the courtto determine legal compensation directly.The compensation amount calculation is a key step which related to whether theholder of the loss can be treated fairly and the interests of the right holder can get secured.The author proposed that three aspects should be calculated. First, the obligee’s loss ofprofit caused by infringement; Second, the profit of infringe actor; Third, the count oflegal compensation.