Since the object of intellectual property is a kind of intangible property, the right holder cannot actually possess and control its intangible property like tangible property. In addition, the huge value contained in intellectual property makes it very easy to obtain intellectual property rights. Violated. How to compensate for illegal infringement of intellectual property rights? It is a difficult issue in the current trial of intellectual property infringement damage cases and one of the key topics in theoretical research on intellectual property infringement law. Based on the research on the legal provisions and judicial practice on this issue, the author intends to discuss the principles of liability for infringement of intellectual property rights, the principles of infringement damages, scope and calculation methods and other issues.

1. Principles of liability for intellectual property infringement

From a civil law perspective, the principle of liability for infringement is based on fault, with presumption of fault and the principle of no-fault liability as special circumstances. . Legal scholars from various countries agree that the principle of no-fault liability should be used when confirming whether intellectual property rights have been infringed and requiring the infringer to stop relevant infringement activities; when determining whether to compensate or determine the amount of compensation, the principle of fault liability should be applied. [1]

(1) Infringement liability and imputation principle

Ceasing infringement and compensating losses are the core and key of intellectual property infringement disputes, and are the fundamental interests of rights disputes. The cessation of infringement should be the prerequisite for compensation for losses. In litigation, infringers often make physical claims, such as determining the ownership of rights, stopping infringement, etc., and claims for debts, that is, damages, together. If judicial officers only focus on claims for creditor's rights when handling cases and only require the infringer to bear corresponding liability for compensation, it will be impossible to actually sanction the infringement and stop the continuation of the infringement activities.

If the right to stop an action is applied to an intellectual property infringement lawsuit, it does not need to consider whether the perpetrator is at fault, but it may be related to the scope of liability, mainly related to legal remedies to compensate for damage. [2] In essence, damage is a consequence of infringement, which has the attribute of benefit to the victim. The main function of damage compensation is to compensate for the loss, that is, to provide some appropriate compensation to the damaged legitimate rights and interests, so that they can return to the state before the damage as much as possible. The establishment of the intellectual property system is to set up an exclusive right, which not only protects the creative intellectual work of creators, but also safeguards the interests of the public. Legislation should consider the balance of the two interests.

In short, in terms of the principle of liability for intellectual property infringement, the fault element is only related to liability for damages and has nothing to do with cessation of infringement. At the same time, special attention should be paid to not replacing the entire principle of tort liability with the principle of liability for damages.

(2) Legal provisions on the principle of liability

According to the provisions of the General Principles of Civil Law of my country, intellectual property laws are part of my country’s civil legal system. Article 106 of the General Principles of the Civil Law stipulates: "Citizens or legal persons who violate contracts or fail to perform other obligations shall bear civil liability. Citizens or legal persons who infringe upon state or collective property or infringe upon the property or person of others due to fault shall bear civil liability. There is no fault , but if the law stipulates that civil liability should be borne, civil liability shall be borne. "Article 118 of the General Principles of the Civil Law stipulates civil liability for infringement of intellectual property rights such as copyrights, patent rights, and trademark rights. That is, citizens and legal persons whose copyrights, patent rights, trademark rights, discovery rights, invention rights and other scientific and technological achievements are infringed upon by plagiarism, tampering, counterfeiting, etc. have the right to demand that the infringement be stopped, the impact eliminated, and losses compensated. It can be seen from the provisions of the General Principles of Civil Law on civil tort liability that the principle of fault liability is the basic principle applicable to civil torts in my country. The General Principles of Civil Law does not specifically stipulate the principles of liability for infringement that should be applied in the special field of intellectual property rights. Therefore, the principle of liability for infringement of intellectual property rights should be applied to the principle of fault liability stipulated in paragraph 2 of Article 106 of the General Principles of Civil Law, that is, fault liability is the responsibility of our country. Basic liability principles for intellectual property infringement.

However, as a formal member of the World Trade Organization (WTO), our country should abide by WTO rules, and the intellectual property legal system must comply with the minimum requirements of the Trade-Related Aspects of Intellectual Property Rights Agreement (Trips Agreement). As the most comprehensive multilateral agreement on intellectual property rights in the international community today, the Trips Agreement affirms the principle of infringement liability mainly reflected in Article 45.

Based on the analysis of Article 45 of the Trips Agreement, the following key points can be drawn: First, when the judicial authority orders the perpetrator to stop the infringement, it does not need to consider whether the perpetrator is subjectively at fault, nor does it require the right holder to provide the perpetrator’s subjective fault There is evidence of fault. However, this does not apply to sellers of infringing goods who are not at fault, if the goods were obtained or ordered before they knew or should have known the nature of their sales; secondly, under certain conditions, judicial organs can punish the sellers who are not at fault. The infringer is ordered to bear the liability for damages by returning profits or paying statutory compensation, that is, the infringer can bear the liability for damages even if he is not at fault; thirdly, the infringer should bear the liability for damages if he is at fault, and the rights holder can also demand Pay legal costs. In short, the Trips Agreement affirms that the general principle of liability for intellectual property infringement is the principle of no-fault liability. The subjective fault of the infringer has nothing to do with the determination of infringement liability, but only relates to liability for compensation. Looking at foreign legislation and judicial practice, similar protection is provided in terms of liability principles for intellectual property infringement, that is, the right to stop and prevent infringement is provided without the premise that the actor is subjectively at fault, and the right to request is based on the actor's subjective fault. The principle of protection of the right to claim damages due to subjective fault fully reflects the rationality and feasibility of this principle.

Although our country has basically met the minimum requirements of the Trips Agreement through modifications and improvements to the current intellectual property legal system, especially the inversion of the burden of proof, pre-litigation evidence preservation, suppression of imminent infringement and statutory compensation. The provisions on the amount are extremely beneficial to improving my country's legal system for intellectual property infringement liability, stopping infringement in a timely manner, increasing the intensity of crackdowns on intellectual property infringement perpetrators, and improving the level of my country's intellectual property law enforcement. However, in some aspects, there is still a big gap between our country's legal system and other countries. In particular, the principle of liability for intellectual property infringement is still based on the principle of fault liability. Although it is allowed by the Trips Agreement, in judicial practice Practice has become increasingly unsuitable.

2. Principles of damages for intellectual property infringement

In the trial of damages for intellectual property infringement, when the judge ascertains the facts of the entire case through a court hearing, the judge shall determine the damages based on the infringement. After determining the liability of the tortfeasor and the components of the tort, how to satisfy the victim's compensation request requires certain guidelines to be followed and standardized. These principles are the principles of compensation for intellectual property damages. What kind of compensation principles should be determined for intellectual property damage compensation? Opinions in intellectual property theoretical circles and intellectual property judicial circles are not unified. The author believes that based on the provisions of civil law and intellectual property law and the needs of judicial practice, the following four principles should be established: the principle of full compensation, the principle of statutory standard compensation, the principle of judge’s discretionary compensation, and the principle of appropriate restrictions on mental damage compensation.

(1) Principle of full compensation

The principle of full compensation, also known as the principle of comprehensive compensation, is the most basic principle of compensation in modern civil law and a common practice in tort legislation and judicial practice in various countries. . Article 45 of today's Trips Agreement stipulates: "Compensation for damage caused to the right owner due to infringement of intellectual property rights", and the fees paid by the infringer to the right owner "may include appropriate attorney fees", etc. This provision is the embodiment of the entire principle of compensation. .

The meaning of the full compensation principle refers to the scope of liability for intellectual property damage. The infringer should bear full responsibility based on the scope of property losses caused by the infringement. There has always been a debate between compensatory and punitive views on the nature of damages. With regard to current compensation for intellectual property damages, due to the rampant piracy and counterfeiting, the reasons for advocating a punitive view seem to be stronger. However, the author believes that the nature of compensation for intellectual property damage is still first and foremost a compensation for the victim’s property loss and mental damage. At the same time, the infringer's liability for compensation is also a legal sanction for his illegal behavior, and compensation and sanctions complement each other. This is because only by obtaining compensation can the victim make up for his losses and can his rights be protected. Apart from the way of obtaining compensation, there are almost no other ways with the same function for the victim to obtain the same relief. As for the sanction function for infringement, there are other forms of civil liability such as cessation of infringement, as well as specific forms of civil sanctions such as fines and confiscation, as well as administrative liability and criminal liability. Therefore, the function of compensation for loss is mainly a kind of compensation, a kind of "compensation" and "filling up" of interests; therefore, compensation is required to be based on the victim's total loss or damage as the standard and scope.

(2) Principle of statutory standard compensation

In view of the particularity of the objects of intellectual property protection and the difficulty in determining the facts and consequences of the damage, the intellectual property legislation of many countries stipulates that knowledge Statutory compensation system for damages caused by property rights infringement. This is particularly prominent in copyright legislation. For example, Section 504 of the U.S. Copyright Law stipulates that an infringer can bear damages ranging from US$250 to US$10,000 for each work infringed upon, and in serious cases the amount can be increased to US$50,000 for each work. Article 45 of the "Trips Agreement" also contains provisions on statutory compensation and predetermined damages. The principle of statutory standard compensation is that when the people's court cannot ascertain the actual loss of the victim and the amount of the infringer's profit, or the victim directly requests compensation according to the statutory minimum compensation amount, the people's court shall determine the amount of compensation according to the compensation amount stipulated by law.

The objects protected by intellectual property rights are intangible. Infringement is easy and evidence is difficult to obtain, and the losses suffered by the rights holders are difficult to calculate. For example, in a computer software infringement damage compensation case, the victim purchased two pieces of pirated software sold by the infringer after notarization and used them as evidence to sue the court for compensation. When the court investigated and verified the evidence, it could no longer obtain any evidence of sales of other pirated software. These two pieces of infringing software were sold at 1/10 of the sales price of the rights holder's genuine software, and the profit was extremely low. The rights holder’s sales of the software have no obvious downward trend. In this case, if the defendant only compensates based on the profit of the two pieces of software, or compensates based on the retail price of the two pieces of genuine software, or even refuses to compensate on the grounds of no loss, it will be unfair to the rights holder and inconsistent with intellectual property rights. The purpose of legislation and justice is also extremely detrimental to combating and stopping piracy and infringement. In order for the right holder to receive full compensation for his losses, to curb infringement, and to embody the compensation and sanction functions of damages, a "scale" for the amount of compensation must be found and specific legal provisions must be given. In the aforementioned software compensation case, it is estimated that if the retail price of the software is above the mid-range price, and 100 sets is used as the standard for compensation in the Beijing area, it may be an effective "statutory standard compensation amount." Whether from the perspective of compensation for the victim or punishment or deterrence of the infringer and those with the intention to infringe, it has a certain effect.

(3) The judge shall use his or her discretion to determine compensation

No matter how strict and specific the legal provisions on damages for intellectual property infringement are, this is actually impossible to achieve, regardless of whether they apply to all Whether the principle of compensation or the application of the principle of statutory compensation cannot exclude the judge's specific application of the law based on the facts of the case ascertained during the trial, and the discretion of the judge based on the circumstances of the individual case within the range of the amount of compensation stipulated by the law. The difficulty in determining the results of damage to intellectual creations and the complexity of the cases make it impossible to simply standardize the compensation for intellectual property damages, just like applying a numerical table. When trying intellectual property dispute cases, judges often find it difficult to determine the plaintiff's losses, the defendant's profits, and the amount of compensation. I feel that the legal provisions are incomplete and there are no operable provisions to follow.

Therefore, when determining the amount of damages for intellectual property infringement, judges should and must be given a certain amount of "discretionary power" to meet the needs of trying various cases. The so-called discretion requires the judge to determine the amount of compensation based on objective facts, in accordance with the general principles of civil law and the basic principles of intellectual property law, rely on the judge's own legal awareness and trial experience, carefully analyze and judge the case, and repeatedly consider and resolve the disputes between the parties. Plan to pursue the civil liability of rights holders in a just, fair and reasonable manner and protect the legitimate rights and interests of rights holders.

(4) Principle of Limitation of Compensation for Mental Damage

As to whether the division of intellectual property rights can cause mental damage, and whether mental damage can be claimed as compensation for mental damage, the Intellectual Property Law of my country’s General Civil Law does not Make clear provisions. According to Article 120 of the General Principles of the Civil Code, citizens whose rights to name, portrait, or reputation have been infringed upon have the right to demand an end to the infringement, restoration of reputation, elimination of the impact, apology, and compensation for losses. The "compensation for losses" in this provision is generally interpreted as the legal basis for compensation for mental damage in my country. At the same time, personal rights other than these four rights, such as the right to privacy, freedom, chastity, and life and health, are not considered eligible for compensation for mental damages. But what is important is that the General Principles of Civil Law has established a legal system for compensation for mental damage, and the name rights of legal persons are protected in the same way as citizens.

Compensation for losses stipulated in Articles 45 and 46 of the Copyright Law does not exclude compensation for mental damages for damage to the copyright owner’s personal rights. Another example is the act of producing and selling art works that are counterfeited by others' signatures. Some scholars claim that this behavior infringes on the author's right of signature, and some scholars claim that it infringes on the author's right to name. In any case, it infringes on the author's personal rights. Moral rights. According to the provisions of Article 46 of the Copyright Law, in addition to economic losses caused by infringement of the author's moral rights and interests, compensation is mainly for mental damages. Although other intellectual property rights such as trademarks and patents are different from copyrights, infringement will also cause damage to the goodwill, credibility and other spiritual interests of the intellectual property subject regarding the legal person's name rights and reputation rights. Some disputes over infringement of the reputational rights of legal persons are themselves unfair competition disputes between enterprises, and the rights and interests infringed upon belong to the scope of intellectual property protection.

However, the compensation for mental damage stipulated in the general principles of my country's civil law is not unlimited. It is restricted by the type of rights infringed, the degree of rights infringement, the subjective state of the perpetrator, and the application of other forms of civil liability. If the scope of compensation for mental damage is arbitrarily expanded regardless of socio-economic and political conditions, history, culture and moral traditions, it will also have adverse social effects. In fact, some other countries also have legal conditions for compensation for mental damages. Therefore, compensation for moral damage to personal rights in intellectual property rights should also be limited. These restrictions are as follows: 1. The application of moral damage compensation should be in accordance with the law or the relevant judicial interpretation of the Supreme People's Court. It can only be applied to the protection of personal rights and spiritual interests in infringement of intellectual property rights, and the scope of application should not be expanded arbitrarily; 2. For infringement circumstances, general If the infringement is infringed upon, the civil liability form of stopping the infringement, eliminating the impact, and making a public apology should first be applied instead of compensation; 3. Although the circumstances of infringement of personal rights and interests in intellectual property rights are general, if property losses are caused, the actual losses caused can be punished. For compensation, the civil liability forms of stopping the infringement, eliminating the impact and publicly apologizing shall be applied at the same time; 4. Where the mental damage is serious and other forms of civil liability are insufficient to protect the rights and interests of the victim, appropriate compensation for mental damage shall be made.

3. Scope of compensation for intellectual property damages

The scope of compensation for intellectual property infringement shall be based on the principle of full compensation, even if the infringement causes all actual losses to the intellectual property holder. All infringement losses refer to the reduction and loss of the right holder's existing property and the reduction and loss of available benefits caused by the infringement. Infringement damages are usually divided into direct losses and indirect losses.

What is the reduction and loss of the existing property of intellectual property, and what is the reduction and loss of the benefits available from intellectual property? What are direct or indirect losses from intellectual property infringement? People's understanding is not consistent. After some computer software developers discovered that their software had just been pirated and infringed, they did not immediately take measures and remedies to stop it. Instead, they had to wait six months to file a lawsuit in court after they had evidence of actual losses. Compensation, this approach is obviously detrimental to the protection of its intellectual property rights.

General property has a realistic and certain value. Damage to general property ownership also directly manifests as the damage and loss of existing property; damage to people's right to life and health directly manifests as direct losses such as medical expenses, treatment expenses, and nursing expenses to the victim or his relatives. However, the value of creative intellectual achievements protected by intellectual property rights can generally be realized through their transformation into tangible property. In other words, the realization of the value of intellectual property must face an open intellectual property market, which requires the use of intellectual property and the transaction and transfer of intellectual property as conditions, and is always restricted by market factors. The transformation of the intellectual property rights enjoyed by the right holder into the wealth of the intellectual property subject is mainly through the benefits or gains from the intellectual property rights enjoyed by the rights holder. The size and level of the income, in addition to the characteristics of the intellectual achievement itself, mainly depend on the market share occupied by the intellectual property. Therefore, property losses caused by damage to intellectual property rights are completely different from the property losses caused by damage to general property and personal life and health mentioned above. The property losses caused by intellectual property infringement are mainly manifested in the reduction or loss of available income, which includes the reduction of the market share of the intellectual property or the depreciation of the value of the rights, as well as the accompanying other property losses of the intellectual property right holder. This includes positive losses to the property caused by the rights holder in order to eliminate the consequences of intellectual property damage.

In addition to property losses caused by intellectual property rights, damages for intellectual property rights also include compensation for mental damages for personal and moral rights.

Based on the above analysis, compensation for damage caused by intellectual property infringement should first include compensation for the loss of property rights and interests of intellectual property rights and compensation for damage to personal and spiritual rights and interests of intellectual property rights. The scope of compensation for loss of property rights and interests should include:

First, direct loss. That is to say: 1. Loss caused by reduction or loss of income such as intellectual property royalties directly caused by infringement; 2. Reasonable expenses incurred for investigating, stopping and eliminating illegal infringement; 3. Caused by infringement of personal and spiritual rights and interests of intellectual property property damage.

The second is indirect losses. It refers to the loss of future property interests within a certain scope of the infringed intellectual property rights of the right holder. It falls under paragraph 3 of Article 117 of the General Principles of the Civil Law, "If the victim suffers other major losses as a result, the infringer shall also compensate for the losses." The scope of "other significant losses". Indirect losses from intellectual property damage refer to the loss caused by the reduction or loss of expected benefits when the intellectual property is in a value-added state such as production, operation, and transfer. Indirect losses to intellectual property rights are caused by the inability of the right holder to use the intellectual property rights to carry out business activities. The theory of tort law generally believes that this kind of indirect loss has three characteristics: 1. The loss is a future available benefit. When the harm-sharing act is carried out, it only has the possibility of obtaining property, not a kind of property. Real benefits; 2. This lost future benefit is of practical significance, not abstract or hypothetical; 3. This available benefit must be within a certain scope, that is, the scope directly affected by the damage to intellectual property rights.

IV. Calculation of compensation for intellectual property damages

After determining the principle of compensation and clarifying the scope of compensation, the specific calculation of damages in judicial practice is a key issue. The calculation methods of damages for intellectual property infringement are scattered in various intellectual property laws, regulations and judicial interpretations. These calculation methods mainly include:

(1) Determination of the amount of compensation for patent infringement

For patentees, in patent contract disputes, the licensee is usually required to pay for breach of contract In patent infringement disputes, most patent infringement disputes require compensation for losses.

As for the amount of compensation, Article 60 of the Patent Law stipulates: “The amount of compensation for infringement of patent rights shall be determined based on the losses suffered by the right holder due to the infringement or the benefits gained by the infringer due to the infringement; If the loss or the benefit obtained by the infringer is difficult to determine, it shall be reasonably determined by reference to the multiple of the patent license fee. "The Supreme People's Court's 2001 "Several Provisions on Applicable Legal Issues in the Trial of Patent Dispute Cases" stipulates the following types of losses. Determination standards and calculation methods for the amount of compensation:

1. Compensation shall be based on the actual losses suffered by the patentee due to infringement. The calculation method is: the sales volume of the patentee's patented products decreases due to the infringer's infringing property products being sold on the market. The total reduction in sales multiplied by the profit of each patented product is the product of the patentee's actual economic losses. The formula is expressed as: reduction in sales volume of the patentee × profit per product = amount of compensation. The actual economic losses suffered by the patentee due to infringement generally include the following two types of losses: First, the loss of reduced profits caused by the decline in sales of the patented product. Secondly, losses caused by forced sales of patented products at reduced prices.

2. The amount of loss compensation shall be the total profit obtained by the infringer due to the infringement. The calculation method is: the profit obtained by the infringer from each infringing product multiplied by the total number of sales on the market. That is all the profits obtained from the infringement. The formula is expressed as: profit per product × sales volume of the infringer = amount of compensation. This method is more suitable for infringers whose infringing products have a wide market, relatively normal management, clear accounts, and reasonable profits. When the infringer does not make a profit from the infringement, or the infringer claims that he has not made a profit or underreports the profits and the accounts are confusing and cannot be checked or there are no accounts at all, the Supreme People's Court's "On the Trial of Patent Dispute Cases" shall apply. Certain Provisions on Legal Issues".

3. The amount of loss compensation shall be a reasonable amount not less than the patent license fee. This standard for determining the amount of compensation is to use the patent royalties reasonably transferred by the patentee in a certain region as a reference value to recover from the infringer the losses caused by infringement within the same scope of the region.

The patentee's patented products have not yet been put on the market in large quantities, or the patentee has not yet implemented the patented technology, or the patentee has adopted a general license to implement and transfer the patented technology, and the infringer's infringing products are needed by society, or the infringing products are If the sales volume will not crowd out the patentee's sales market or cause a reduction in sales, the patentee is unlikely to provide evidence of losses suffered due to infringement, and the infringer provides insufficient evidence of profits, this standard may be used. Determine the amount of compensation.

4. Other calculation methods agreed upon by both parties. The parties may agree to use other calculation methods to calculate the amount of loss compensation. As long as it is fair and reasonable, the people's court shall allow it.

It should be pointed out that no matter which of the above standards is used to determine the amount of compensation, the following expenses incurred by the patentee should be included in the scope of compensation: expenses incurred in collecting evidence to prove the infringement, expenses incurred in stopping the infringement Fees paid for infringement, reputation restoration, advertisements, and statements, travel expenses, attorney fees, etc. for requesting administrative relief or judicial relief, case acceptance fees, appraisal fees, survey fees, etc. required for filing infringement lawsuits.

In short, compensation for damage caused by intellectual property infringement should be determined based on the principle of attribution of infringement, the principle of damage compensation, and the specific circumstances of each damage compensation case, and comprehensive consideration should be given to determine compensation. calculate. Judges who handle cases, as well as judges or groups of judges who participate in handling specific cases and making judicial decisions, should strictly follow legal procedures, pursue fairness, justice and justice to the greatest extent, strive to be both legal and reasonable, and incorporate the provisions of intellectual property laws into The basic principles and guiding ideology for the trial of intellectual property cases are implemented throughout the case handling