Research On The Legal Application Of The System Of Punitive Damages For Copyright

With the rapid development of knowledge economy,the inherent principle of filling can no longer meet the real needs,especially in the situation where the intellectual property rights subjects have weak control over their own rights,and often cannot get sufficient relief when their rights and interests are infringed.Therefore,in order to strengthen the protection of copyright rights and comply with the requirements of social development,the Copyright Law was amended on November11,2020 to introduce the punitive damages system.The establishment of the punitive damages system is a great breakthrough in China’s Copyright Law,which is conducive to combating copyright infringement and improving the enthusiasm of copyright owners in creation and rights protection.The application of the punitive damages system to address copyright infringement not only has realistic justification,but also is the trend of social development.However,there are still problems that need urgent attention in the specific application of the punitive damages system in the Copyright Law.Based on the current legal provisions of China’s copyright punitive damages system,combined with judicial practice,this paper discusses the problems in the application of copyright punitive damages system,and puts forward corresponding suggestions for improvement.In addition to the introduction,this paper is divided into three main parts.The first part is a theoretical overview of the system of punitive damages for copyright.This part mainly includes the concept and institutional functions of the copyright punitive damages.On the one hand,the concept of copyright punitive damages is elaborated based on the summary of the historical development of the punitive damages system.On the other hand,since there are controversies in the academic field about the functions of the punitive damages system(mainly including the three-function theory and the four-function theory),this paper agrees with the four-function theory by analyzing the legislative purpose,and points out that the functions of the punitive damages system mainly include punishment,deterrence,compensation and incentive.The second part analyzes the problems in the application of the copyright punitive damages system.This article considers that the problems in the application of the system of punitive damages for copyright mainly include: First,the applicable elements of punitive damages are not clear.In judicial practice,there is still room for improvement in the elements of punitive damages.Secondly,the application of statutory compensation is generalized.Among the 20 sample cases randomly selected,95% of them applied the statutory compensation system for judgment.Thirdly,regarding the calculation of punitive damages,we should start from two aspects:broadening the way of determining the amount and the way of calculating the base.The difficulty of determining the amount should be reduced through the introduction of expert assistants,and the discretionary amount of compensation should be used as a way of base calculation to provide more feasibility for the base calculation;meanwhile,the factors for determining the multiplier should be refined,and the value of the infringed products should be taken into consideration to improve the accuracy of the multiplier determination.Fourthly,it is difficult for the right holder to prove the evidence.Because of the concealment of copyright infringement and the precision of proving the amount of punitive damages,it is difficult for the right holder to prove,and the application of copyright punitive damages system is not satisfactory.Fifthly,there is a lack of clear legal provisions on the aggregation between punitive damages of copyright and administrative and criminal liabilities.At present,the provisions of China’s laws only cover the situation where administrative fines and criminal fines are imposed first and then punitive damages are applied;there are no clear provisions on how infringers should handle the simultaneous application of both or the performance of punitive damages followed by fines and penalties.The third part is the suggestion of improving the punitive damages system of copyright.In view of the problems,this paper puts forward the following suggestions.Firstly,regarding the constitutive elements of punitive damages,we should start from two aspects,namely,clarifying the criteria for determining subjective intention and further refining the factors for determining the severity of circumstances.Secondly,the problem of generalization of statutory compensation should be solved by refining the elements of statutory compensation and clarifying the relationship between statutory compensation and punitive compensation.Thirdly,regarding the calculation of punitive damages,we should start from two aspects: eliminating the sequential provisions and broadening the base calculation.At the same time,discretionary damages should be used as a way of base calculation to provide more feasibility for base calculation;at the same time,the factors for determining the multiplier should be refined,and the value of infringed products should be taken into consideration to improve the accuracy of multiplier determination.Fourthly,the problem of excessive difficulty of proof for the right holder should be solved by establishing a professional evaluation system,appropriately lowering the standard of proof for the right holder and introducing the rule of reversing the burden of proof.Fifthly,the law should clarify that when punitive damages and administrative fines are used together,the punitive damages system should be applied in priority,but for particularly bad cases,both can be applied at the same time;when punitive damages and criminal fines are used together,the approach taken is the same as the former.