| Legal remedies are great significance to the protection and restoration of rights.In judicial practice,the importance of remedy to rights are represented by compensation is reasonable or not,while the latter depends on scientific damage calculation methods.Article 49 in Copyright Law makes infringement damages amount calculation,legal sequenced methods include actual loss of copyright owner,illegal gains of infringed and statutory damages.In addition,Supreme Peoples Court introduced judicial interpretations on Copyright law in order to refine damage calculation methods,However,practical effects may not so ideal when facing varied copyright tort cases.In judicial practice,both parties often have insufficient proof for“actual loss of the obliged” and “illegal income of the infringed ”,and the legal compensation itself litigation efficiency value and other factors,resulting in the legal compensation is more widely used in judicial decisions,but because the legislation is not perfect,the legal compensation to determine the amount of compensation when the lack of uniform standards,the amount of judgment compensation is of usually low.Article 49 in copyright Law merely makes three legal calculation methods,however,not says the legal amount limitation could be broke when compensation within legal amount obviously unfair.In the face of judicial practice beyond the limit of compensation for the issue of judgment remains to be discussed.Based on the statistical analysis of about 362 cases that were applicable to legal compensation but exceeded the maximum limit of legal compensation,this paper takes three cases,such as the case of the Satellite TV Company V Aimeide Company,and the problem of applying the calculation method of damages in such cases is obtained.first,the confusion of the application of the way to determine the amount of infringement damage;the rationality of exceeding the legal limit of compensation;And the problem of the applicable wording of the compensation calculation method in the documents.In view of the above points of dispute,this paper demonstrates the following points: the calculation method of compensation damage that exceeds the applicable limit of legal compensation in judicial judgment is not the default legal compensation method,but the application of the calculation method of discretionary compensation should be clarified.although there is no legal regulation to exceed the maximum limit of legal compensation,it has its rationality and discusses how to make discretion in this case.And the description of judicial terms that should distinguish between legal compensation and discretionary compensation in judicial judgement documents should be reasonable and clear.Through the analysis of the case,in the face of problems occurred in the judicial practice of the referee,apply discretionary compensation shall be determined compensation to a path of problem solving,puts forward suggestions to perfect the copyright infringement damages of calculation method,so as to adapt to the need of judicial practice. |
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