The Construction Of Punitive Damages System Of Copyright Infringement In China

Punitive damages is a hot issue in the revision of copyright law in China.In the process of constructing the punitive compensation system for copyright infringement,there are two difficulties in theory and practice.There are two main difficulties in the theoretical aspect,one is not in line with the formal requirements of corrective justice,the other is not in line with the theory of the division of public and private legal responsibility based on the punitive standard.In practice,although the system has not yet been implemented,three possible difficulties can be foreseen,namely,the low application rate of the system,the wide gap in the application standard of the system and the insufficient punitive damages.In order to remove the obstacles to the establishment of the system,the causes of the dilemma must be analyzed.This paper finds that the reason why punitive damages are often criticized in the basic theory is that our academic circles have too narrow understanding of tort law and stick to a single corrective justice,instead of facing up to the significance of utilitarianism for contemporary tort law.Moreover,they mistakenly believe that the essential distinction between public and private legal responsibility lies in whether there is any penalty or not.They fail to realize that the theory of responsibility division based on penalty is not only not true,but also makes the public legal responsibility system bear unbearable burden.As for the possible difficulties inpractice,the root cause lies in the issue of evidence.The difficulty in obtaining relevant evidence leads to the difficulty in using the system,and the lack of applicable cases prevents the accumulation of experience and the formation of a unified standard.At the same time,the lack of evidence leads to the low amount of compensatory damages,thus reducing the power of punitive damages calculated on this basis.There are the following suggestions on the specific construction of the system.First of all,in order to ensure that the punishment of infringement will not hinder the normal innovation and dissemination of knowledge and culture,we should take the balance of interests as the core guiding principle.Secondly,according to the legal principle of prohibition of repeated punishment,attention should be paid to ensure that the compensatory compensation in copyright cases,especially the legal compensation with the highest application rate and the compensation for licensing fee that may be increased in the future do not have the nature of punishment.Finally,from the analysis of the specific constitutive requirements and application level,the subjective requirements,because of the concept of malicious and informal tort law,the connotation is difficult to grasp,this paper thinks that the condition can be deliberately.In terms of objective conditions,the conditions of two or more infringements stipulated in the draft will lead to the narrow scope of regulation of the system,which cannot meet the current governance needs of copyright infringement.Therefore,it is necessary to refer to the provisions of the criminal law on copyright crimes and theprovisions of punitive damages in the trademark law,and take the seriousness of the circumstances as the condition.Finally,the calculation of punitive damages.Because the defendant's property status is not easy to find out,the average judgment compensation level of copyright infringement in China is not high,so the judge does not have to pay special attention to the ability of the infringer to bear when determining punitive damages.In addition,the mental damages should be included in the calculation of punitive damages.Because,the original intention of the moral damages is to compensate,there is no punitive,in its application of punitive damages will not have the problem of repeated punishment.In addition,after the mental damages are included in the calculation basis,punitive damages can also be applied to serious infringement of human rights and interests,so as to make the regulation of the system more comprehensive.