I. Legislation and judicial practice of statutory compensation for intellectual property rights
In order to effectively protect the legitimate rights and interests of obligees, the TRIPs Agreement and the intellectual property legislation of many countries have stipulated the statutory compensation system for intellectual property infringement damages. The so-called statutory compensation refers to the specific amount (or amount range) that should be compensated for the damage caused by illegal infringement of intellectual property rights by intellectual property laws. If it is impossible to find out the actual loss of the victim and the profit amount of the infringer in the people's court, or if the victim directly requests compensation according to the legal minimum compensation amount, the people's court shall determine the compensation amount according to the law. In China, the legal compensation for intellectual property damage is a brand-new system established in the revised Trademark Law and Copyright Law. Paragraph 2 of Article 56 of the Trademark Law stipulates that if the benefits obtained by the infringer due to infringement or the losses suffered by the infringed are difficult to determine, the people's court shall award compensation of less than 5, yuan according to the circumstances of the infringement. Paragraph 2 of Article 48 of the Copyright Law stipulates that if the actual loss of the obligee or the illegal income of the infringer cannot be determined, the people's court shall award compensation of less than 5, yuan according to the circumstances of the infringement. The Supreme People's Court's "Several Provisions on Applicable Legal Issues in the Trial of Patent Dispute Cases" also stipulates similar contents. When the loss of the right holder or the interests of the infringer are difficult to determine, there is no reference for the patent license fee, or the patent license fee is obviously unreasonable, the amount of compensation is generally determined between RMB 5, and RMB 3,, and the maximum amount shall not exceed RMB 5,.
In judicial practice, legal compensation is applied to a considerable number of cases. However, when we look through the cases of intellectual property infringement to which statutory compensation is applicable, we will find that a large number of judgments have devoted a lot of ink to the determination of infringement in the evidence analysis and reasoning part, but in the part of damages, the discretionary factors and their functions in determining the compensation amount are generally not specifically analyzed, and some even do not state what factors the court has considered. The reason for this phenomenon, the author believes, is mainly due to the following reasons. First, the burden of proof for damages is really very difficult or the parties are lazy in giving evidence, which leads to the lack of evidence lost by the plaintiff in trial practice, and the evidence of the defendant's illegal income cannot be accepted. Because of all the specious and vague facts, the judge can only apply statutory compensation to make a judgment. Second, because the legal provisions on statutory compensation are abstract, There is no specific and accurate amount, which requires the judge to decide a reasonable amount within the legal scope according to various factors. The determination of the compensation amount is the result of the judge's discretion through evaluation of evidence, and this process of evaluation of evidence is difficult to express in the judgment, so it has to be passed over for fear of "talking too much".
second, some problems in the application of legal compensation for intellectual property rights
(I) compensation principles that should be followed in legal compensation
In the trial of compensation cases for intellectual property infringement damages, when the judge determines the infringer's tort liability based on the facts found in the trial, how to satisfy the obligee's claim for compensation and how to determine the amount of compensation for the infringer needs to follow certain compensation principles. The principle of compensation for infringement damage is not clearly stipulated in China's current intellectual property law, which is controversial in theory and practice. As for the compensation principle of statutory compensation, one view holds that statutory compensation is a separate compensation principle juxtaposed with the principle of total compensation, while another view holds that the compensation principle of intellectual property infringement damage is divided into the principle of total compensation and the principle of punitive compensation, and statutory compensation is only a calculation method of total compensation. The author agrees with the latter view that the application of statutory compensation should follow the principle of full compensation. TRIPS agreement also emphasizes the principle of total compensation.
the principle of total compensation, also known as the principle of filling, means that the infringer will compensate the obligee in an all-round way within the limit of all losses. Its nature is to fill the actual loss of the obligee. The principle of total compensation has the following characteristics: ① The principle of total compensation is to compensate the victim for the total loss, that is, how much compensation is paid for the loss, and the amount of compensation is neither partial compensation nor excess compensation. (2) the principle of total compensation is to compensate all the losses of the victim, including both direct losses and indirect losses. For example, the profits lost by the obligee, the reasonable expenses paid by the obligee to protect his rights, etc. (3) the principle of total compensation, the amount of compensation is often presumed to be the illegal interests of the infringer. Because intellectual property does not depend on a specific carrier, once it is made public, it is difficult for the obligee to actually control and possess it, and the calculation of the total loss of the obligee can be equal to the illegal interests of the infringer. Therefore, when we apply statutory compensation, the amount of tort compensation determined should be able to fully and fully compensate the loss suffered by the obligee due to infringement. Ideally, the amount of compensation determined should not be greater than or less than the loss of the obligee. However, statutory compensation is essentially a kind of presumption of damages, which is a kind of compensation amount confirmed by the judge's estimation of the actual loss of the obligee according to the characteristics of the case, ascertained facts and other factors in the trial through the request of the parties to the court when the amount is difficult to calculate. The amount so determined may exceed the actual loss or be close to the actual loss, and it may not be completely equal to the actual loss of the obligee, but this presumption should still be based on the actual loss of the obligee. In countries that adopt the principle of full compensation, the estimated amount is assumed to be the actual loss.
(II) Liability principle of statutory compensation
With regard to the liability for infringement of intellectual property rights, under the premise of affirming the principle of fault liability as a general principle, the academic and judicial circles generally advocate adopting the dual liability principle, that is, supplementing other liability principles on the basis of adopting the principle of fault liability. Article 45 of TRIPS Agreement deals with the principles of liability fixation and private law remedies for damages caused by intellectual property infringement, which is of universal guiding significance to the relevant domestic legislation of each contracting party. The title of Article 45 of TRIPS Agreement is damages, and the first paragraph of this article clearly stipulates that the premise of undertaking damages liability is "knowing or having sufficient reasons to know", that is, subjective fault, that is to say, the tort damages of intellectual property rights are attributed to the fault of the infringer, which affirms that the principle of fault liability is the basic principle of intellectual property rights infringement damages. The second paragraph of this article provides an exception to the application of the principle of no-fault liability in "appropriate occasions", and excludes some liability for paying legal compensation for indirect tortfeasors without fault. Applying the principle of no-fault liability in "appropriate occasions" mainly means that in some cases where the infringement damage is particularly serious, the infringer obtains huge profits through infringement activities, or the circumstances of infringement are quite severe, which damages the reputation of the obligee, or the court proceedings take too long, resulting in the obligee spending a lot. It can be seen that no-fault liability, as the principle of imputation, is limited to individual cases of major tort, and lacks universal value here. Therefore, as a party to the TRIPS Agreement, the principle of imputation of statutory compensation for intellectual property rights in China should take fault liability as the general principle and no-fault liability as the exception.
(III) Applicable conditions of statutory compensation and the right choice of the parties
Judging from the current intellectual property legislation in China and the provisions of the judicial interpretation of the Supreme People's Court on the order of application of compensation calculation methods, there is a sequence of application of statutory compensation and other damage compensation calculation methods in litigation procedures. Both the Copyright Law and the Trademark Law stipulate that only when the actual loss of the obligee and the illegal income of the infringer cannot be determined can legal compensation be applied. For patent infringement, it should also meet the conditions that there is no patent license fee to refer to or the patent license fee is obviously unreasonable. Only legal compensation can be applied. In other words, the legal compensation method is always in the back order. It can be seen that the application of legal compensation for intellectual property rights in China is complementary in the way of determining the amount of infringement compensation.
in the trial practice, the following problems are prone to occur: ① If the obligee directly requests the court to apply the statutory compensation method to order the infringer to pay a certain amount of compensation when suing, what should the people's court do; ② If the obligee advocates that the actual loss is the basis for calculation, but the evidence provided is not enough to prove its loss and the infringer's infringement profit cannot be ascertained, can the court directly apply the statutory compensation when the obligee does not propose to apply the statutory compensation? (3) In copyright infringement disputes, when the infringer infringes several works of the right holder, is the legal compensation amount based on a case or an infringing work as the unit of calculation?
(1) If the parties directly request the application of the statutory compensation method, the author thinks that in this case, the court cannot simply reject their claims on the grounds that the parties have improperly chosen the compensation method. On the one hand, it should fully reflect the right of the parties to dispose of their civil rights, that is, the obligee can make a statutory compensation request to the court, on the other hand, it should reflect the legislative spirit, that is, the obligee should explain the reasons when making a statutory compensation request. The judge should first exercise the right of interpretation to the parties and inform the plaintiff to give evidence on the reasons and facts for applying statutory compensation. If the evidence provided by the plaintiff can prove the amount of loss or the amount of profit of the infringer, the amount of compensation can be determined. If it cannot be determined, the judge may determine the amount of compensation as appropriate within the statutory compensation range. If the plaintiff refuses to give evidence, he may be allowed to bear the risk of losing the case.
(2) As to whether the court can directly apply the statutory compensation, the author thinks that if the obligee claims to take the actual loss or the infringer's profit as the compensation calculation basis, but after the court hearing, it is found that the evidence provided by the obligee is not enough to prove its actual loss, and the infringer's infringement profit cannot be determined, at this time, the obligee should be allowed to make a statutory compensation request before the court debate ends, if the obligee does not. The people's court may apply statutory compensation ex officio if it considers that it meets the applicable conditions of statutory compensation according to the circumstances ascertained in the trial of the case. It should be noted that the applicable conditions of statutory compensation should be strictly grasped. If the actual loss of the obligee and the infringement profit of the infringer can be basically ascertained, or the amount of compensation can be determined according to the specific circumstances of the case and sufficient evidence, statutory compensation should not be directly applied.
(3) In copyright infringement disputes, when the infringer infringes on several works of the obligee and applies legal compensation, the author thinks that a case should not be taken as the unit, but a work should be taken as the unit of calculation, and each work should be discretionary under 5, yuan, and then added together to determine the final compensation amount.
(IV) Factors that should be considered when applying statutory compensation to determine the amount of compensation
When applying statutory compensation, judges do not infer it out of thin air. But according to the actual situation of the case, comprehensively consider various factors, so as to make the amount of compensation as reasonable as possible. Copyright Law, Trademark Law and relevant judicial interpretations in the Supreme People's Court all stipulate that the people's court shall determine the amount of statutory compensation according to the circumstances of the infringement. The author believes that judges should generally consider the following factors when applying statutory compensation
1. Under normal circumstances, the possible loss of the obligee or the possible profit of the infringer < P > When determining the compensation amount according to the specific circumstances of the case, the most fundamental considerations should be the possible actual loss of the obligee and the possible profit of the infringer. By comparing the amount between the two, the amount of compensation shall be determined within the highest range as appropriate on the basis of the more. When the actual loss of the obligee and the infringement profit of the infringer cannot be specifically determined, but the possible actual loss is obviously greater than the possible profit of the infringer, the judge should determine the amount of damages in the highest range as appropriate based on the possible actual loss of the obligee, otherwise, the amount of compensation should be determined as appropriate based on the possible infringement profit of the infringer. It should be noted that the reasonable expenses paid by the infringed person to stop the infringement, such as attorney's fees and notary fees, should be included in the legal compensation amount.
2 Behavior mode, duration and influence scope of infringement
In the infringement, the harm of direct infringement is generally greater than that of indirect infringement, and the harm of comprehensive infringement is greater than that of partial infringement. Infringement behavior is different, and the loss suffered by the obligee and the amount of compensation obtained are different. For the infringement that lasts for a long time and has a wide range of influence, the damage caused to the obligee is generally large, and more compensation should be given.
3 degree of subjective fault of the infringer
Based on the imputation principle that the compensation for intellectual property infringement damages is mainly based on fault liability, with no-fault liability as an exception, the subjective fault of the infringer is a major factor in determining the amount of damages. When applying statutory compensation, we should consider the degree of subjective fault of the infringer. Within the statutory compensation limit, the amount of compensation will be increased for those who are at fault and reduced for those who are not at fault, which is also the specific practice of most countries in the world when applying statutory compensation.
4 Consequences of Infringement
This mainly refers to the social impact of Infringement, which will inevitably have a certain adverse impact on the goodwill or reputation and spirit of the obligee, and the obligee needs certain funds and energy to make up for the trauma. Therefore, when determining the amount of legal compensation, the consequences caused by infringement should also be an important factor to consider.
5 types and values of specific objects infringed
Different types of intellectual property rights have different values, and different intellectual property rights in the same type have different values. For example, the value of well-known trademarks is generally greater than that of famous trademarks, and the value of famous trademarks is generally greater than that of ordinary trademarks. Intellectual property rights with different values are infringed, and the losses suffered by the obligee are different, and the amount of compensation obtained is also different.
(V) Legal compensation and the burden of proof of the parties
The application of legal compensation does not mean that the obligee does not need to give evidence. In fact, the obligee still has the obligation to prove the existence of infringement facts, certain infringement circumstances and the fact that his actual loss or the infringer's benefit amount cannot be determined due to non-self reasons. However, the burden of proof should not be too high. At the same time, for the defendant, if the plaintiff's actual loss can't be calculated, if he doesn't actively prove the fact that he has benefited from infringement, the judge can only infer the amount of compensation on the basis of existing facts and evidence within the statutory compensation limit. However, the application of statutory compensation may not be beneficial to the defendant, because the judge is