In modern society, where creativity and innovation are the main driving force for development, copyright has become one of the core values that need to be protected. However, copyright infringement is widespread, causing not only financial losses but also damage to the honor and reputation of authors. When the rights of authors are infringed, determining and compensating for damages becomes an urgent and complicated issue. This is not only to restore the rights of creators but also to contribute to maintaining a healthy creative environment. The following article by VCD will help you.
1. Determining damages caused by copyright infringement
Liability for compensation for damages caused by copyright infringement is the legal responsibility that the party directly or indirectly committing the act of copyright infringement causing damage must compensate for the damage.
Pursuant to Article 204 of the Law on Intellectual Property 2022 and Articles 69 to 74 of Decree 17/2023/ND-CP, the determination of damages caused by copyright infringement is divided into the following two groups:
1.1. Determining material damages caused by copyright infringement
Property loss
Property loss is the decrease in the value of copyright after the infringement occurs compared to before the infringement or compared to the value of that copyright that would have been achieved. Pursuant to Article 71 of Decree 17/2023/ND-CP, property damage is determined according to the level of decrease or loss of value in terms of money of the protected copyright and related rights. To determine the loss, it is necessary to determine:
- The value of copyright at the time before the infringement occurred or the value of copyright that would have been achieved if the infringement had not occurred.
- The value of copyright after the copyright infringement has occurred may or may not have ended.
Loss of income, profit, business opportunities
Income and profit are benefits that the copyright owner would have received when exploiting the work normally. The loss or reduction of benefits from the ability to use the property is also a type of damage caused by infringement.
Other material damages
Reasonable costs to prevent and remedy damage specified in Point a, Clause 1, Article 204 of the current Intellectual Property Law include 2 groups:
- Group one is the cost to prevent and limit damage, including costs for temporary detention, preservation, storage, and storage of infringing goods, costs for implementing temporary emergency measures, and reasonable costs for hiring appraisal services.
- Group two is used to remedy damage. The cost of notification and correction in the mass media is a form of damage remedy cost, regaining consumer confidence in the product.
These costs must serve to prevent and remedy damage and must be reasonable to satisfy the conditions to be considered a type of damage to be compensated.
1.2. Determining spiritual damage due to copyright infringement.
Loss of honor and dignity
Human dignity is the good qualities of a person that express the spiritual value of an individual as a human being. Spiritual damage in this case is the negative assessment with different levels of society on one or more aspects of the capacity, morality, … of the copyright subject. From there, it lowers their honor and reputation.
Loss of reputation
Reputation is the value that reflects the trust and popularity of the subject in the field of literature, art and science. Spiritual loss in this case is the decrease in the level of trust, fame, and positive influence of the copyright subject on the public related to the protected copyright.
Other spiritual losses
Such loss can be the loss of the author’s trust when an infringement occurs. A work of art, created with passion and expectation to bring new value to the public, can be negatively affected by copyright infringement. This leads to a decrease or even loss of initial expectations, undermining the authors’ trust.
2. Determining the level of compensation for damages caused by copyright infringement
The determination of the level of compensation for damages is specified in Article 205 of the Law on Intellectual Property as follows:
2.1. Determining the level of compensation for material damages caused by copyright infringement
Determining the level of compensation for material damages based on determined damages
- Based on the total material damages: the total material damages and the number of illegal profits the defendant has obtained from the infringement. However, not all cases can be determined by this method.
- Based on the name of the transfer price of the right to use: The transfer price of the right to use is calculated on the basis of the assumption that the defendant is transferred the right to use by the plaintiff under the use contract within the scope corresponding to the infringement committed. Determined on one of the following bases:
- The amount payable if the right holder and the infringer freely agree and sign a contract to transfer the right to use that copyright.
- The assumed transfer price of the right to use is determined according to the method of determining the amount that the right holder and the transferee could have agreed upon at the time of the infringement, if the parties had agreed on that amount.
- The transfer price of the right to use is applied in the corresponding field stated in previous transfer practices.
- According to another calculation method proposed by the copyright holder: this provision allows the right holder to have more opportunities to determine the most beneficial compensation level for themselves in addition to the previous fixed calculations. However, this is a rather open provision and is likely to be inappropriate when applied in practice.
The level of compensation for material damage is determined by the Court
In cases where it is not possible to determine the specific level of compensation for material damage based on the above grounds, the provision of a reserve nature is applied, allowing the level of compensation to be determined by the Court.
2.2. Determining the level of compensation for spiritual damage due to copyright infringement
Determining the level of compensation for damage based on the total spiritual damage
Although it has been determined that spiritual damage includes loss of honor, dignity, reputation and other losses, there is no basis for determining how much money the reduction of these factors is calculated because these are all abstract factors that are difficult to assess.
The level of compensation for spiritual damage is determined by the Court
Article 205, Clause 2 of the Law on Intellectual Property stipulates the right to request the Court to decide on the level of compensation within the limit of five million VND to fifty million VND depending on the level of damage. Therefore, based on the loss of honor, dignity, prestige, reputation and other mental losses, the Court determines the level of compensation for damages according to the above provisions.
Above is the article “Liability for compensation for damages caused by copyright infringement” that VCD sent to you. We hope this article is useful to you.
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