When copyright or related rights are infringed, determining the damage caused is not an easy matter. So, how is the damage that occurs when copyright or related rights are violated determined? This is one of the contents guided in Decree 17/2023/ND-CP dated April 26, 2023, detailing several articles and measures to implement the Intellectual Property Law on copyright and related rights. mandarin.
1. General principles
According to Article 204 of Vietnam’s Intellectual Property Law, damages caused by infringement of copyright and related rights include:
- Material damage includes property loss, loss of income and profits, loss of business opportunities, and reasonable costs to prevent and repair damage;
- Mental damage includes loss of honor, dignity, reputation, and other mental damage caused to the author of literary, artistic, or scientific works and performers.
Principles for determining damages due to infringement of copyright and related rights are specified in Article 69 of Decree 17/2023/ND-CP, specifically as follows:
- Damage due to infringement of copyright and related rights is the actual physical and mental loss caused directly by the infringement to the copyright or related rights holder.
- There is considered to be an actual loss if there are all of the following grounds:
- Material or spiritual benefits are real and belong to the person who suffers damage: Material or spiritual benefits are the result (product) of copyright or related rights and the person who suffers damage is the person who has the right to enjoy it. that material or spiritual benefit;
- The damaged person can achieve the above benefits under certain conditions if no infringement of copyright or related rights occurs;
- There is a reduction or loss of benefits for the damaged person after an act of infringement of copyright or related rights occurs compared to the ability to achieve such benefits when there is no act of infringement and the act of infringement is the direct cause of the decrease or loss of that benefit.
In particular, the level of damage is determined based on the actual losses that the intellectual property rights holder has suffered due to the act of infringing intellectual property rights. The level of damage determined must be consistent with the factor of infringement of the rights of the subject of copyright or related rights and must be based on evidence of damage provided by the parties, including inspection results and copies to declare damages, clarifying the bases for determining and calculating the level of damage.
2. Determine specific damages due to infringement of copyright and related rights
- Mental damage
Specific damages include damage to honor and dignity, reduction or loss of trust, reputation, reputation, or trust due to misunderstanding, time to endure the loss, and level of pain, injury, sadness, and emotional loss to the extent that the violating individual or organization must apologize, publicly rectify, and compensate for mental damage.
2.1. Property damage
Property damage is determined according to the degree of reduction or loss in the monetary value of the protected copyright object and related rights. Those values are determined as follows:
- Price of transfer of ownership or transfer of rights to use copyright objects and related rights;
- Value of business capital contribution by copyright and related rights;
- The value of copyright and related rights in the total assets of the enterprise;
- Investment value for research, creation, and development to create works and related rights objects, including investment costs, research, technical equipment, facilities, and expenses marketing, advertising, labor, taxes, and other costs.
The determination of the monetary value of copyright and related rights objects is carried out by the valuation enterprise by the law on valuation. The valuation results of the valuation enterprise are used as one of the bases for competent organizations and individuals to consider, decide, or approve the price of the appraised asset.
2.2. Decrease in income and profits
Types of income and profits considered include:
- Income and profits obtained from direct or indirect exploitation and use of copyright and related rights objects;
- Income and profits earned from leasing copyright and related rights objects that are originals or copies of cinematographic works and computer programs;
- Income and profits obtained from transferring the right to use copyright and related rights;
- Income and profits obtained from transferring ownership of copyright and related rights.
The decrease in income and profit is determined on one or more of the following bases:
- Effects on normal exploitation of works, performances, audio recordings, video recordings, and broadcasts: Compare the number of actual copies consumed or supplied before and after the act of infringement occurs; Compare the frequency of exploitation, use, screening, broadcasting, communication, and access to works, performances, audio recordings, video recordings, and broadcasts before and after the infringement occurs; Compare the number of users and subscribers before and after the infringement occurred;
- Compare the actual market price of the copy before and after the infringement;
- Causing unreasonable damage to the legitimate interests of rights holders: Direct comparison of revenue earned from exploiting and using copyright objects and related rights before and after the act occurs infringement, corresponding to each type of income specified in Clause 1 of this Article.
2.3. Loss of business opportunities
Lost business opportunities are understood as:
- Ability to generate profits and increase brand value through actual use and direct exploitation of copyright and related rights in business; number of customers using;
- Ability to generate profits and increase brand value through advertising and marketing using copyright and related rights;
- Ability to generate profits and increase brand value through leasing copyright and related rights objects to others, which are originals or copies of cinematographic works, computer programs, sound recordings, and recordings images;
- Ability to generate profits and increase brand value through the actual transfer of rights to use copyright objects and related rights, transfer of copyright objects and related rights to others;
- Other business opportunities are lost due to direct infringement of copyright and related rights.
Loss of business opportunity is the loss of the monetary value of the income that the injured person could have earned by exercising the above possibilities but in fact, did not get that income due to acts of infringement of copyright and related rights.
3. Reasonable costs to prevent and repair damage
Reasonable costs to prevent and remedy damage include costs for temporary detention, preservation, storage, and storage of infringing goods, costs for implementing temporary emergency measures, and reasonable costs for infringing goods. reasonable costs to hire a lawyer, reasonable costs to hire services to assess, prevent, and remedy infringements, and costs for notification and correction on mass media related to infringements of copyright and related rights.
Above is the article “Determination of damage caused by infringement of copyright and related rights“. Hope this article is useful to you.
