First, the principle of imputation of intellectual property infringement
In the theory of civil law, the principle of imputation of tort is based on fault, and the principle of presumption of fault and liability without fault are special cases. Jurists all over the world agree that the principle of no-fault liability should be adopted when confirming whether intellectual property rights have been infringed and asking the infringer to stop infringing activities. The principle of fault liability shall be applied when determining whether to compensate or determine the amount of compensation. 〔 1〕
(A) Tort liability and imputation principle
Stopping infringement and compensating for losses are the core and key of intellectual property infringement disputes and the fundamental interests of rights disputes. Stopping infringement should be the premise of compensating for losses. In litigation, infringers often ask for things? Clear ownership of rights, stop infringement, etc. And claim creditor's rights That is, damages are filed together. If the judicial personnel only pay attention to the claim of creditor's rights when handling cases, and only hope that the infringer will bear the 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 the action is applied to the lawsuit of intellectual property infringement, it is not necessary to consider whether the actor is at fault, but it may involve the scope of responsibility, mainly involving the legal relief of damages. [2] Damage is essentially a consequence of infringement, which is related to the interests of the victims. The function of damage compensation is mainly to fill the loss, that is, to give some appropriate compensation to the damaged legitimate rights and interests, so as to restore them to the state before the damage as much as possible. The establishment of intellectual property system is to set up an exclusive exclusive right, which should not only protect the creative intellectual labor of creators, but also safeguard public interests, and the balance between the two interests should be considered in legislation.
In a word, in the imputation principle of intellectual property infringement, the fault elements are only related to the liability for damages, but not to stopping the infringement. At the same time, we should pay special attention not to replace the whole principle of tort liability with the principle of liability for damages.
(two) the principle of liability stipulated by law
According to the general principles of China's civil law, intellectual property law is a part of China's civil legal system. Article 106 of the General Principles of the Civil Law stipulates: "A citizen or legal person who violates a contract or fails to perform other obligations shall bear civil liability. Citizens and legal persons who infringe upon the property of the state or the collective or the property or person of others due to their faults shall bear civil liability. If there is no fault, but the law stipulates that it should bear civil liability, it should bear civil liability. " Article 1 18 of the General Principles of Civil Law stipulates the civil liability for infringement of intellectual property rights such as copyright, patent right and trademark right. That is, if a citizen or legal person's copyright, patent right, exclusive right to use a trademark, right of discovery, invention and creation are infringed by plagiarism, tampering or counterfeiting, he has the right to demand to stop the infringement, eliminate the influence and compensate for the losses. From the provisions of the General Principles of Civil Law on civil tort liability, we can see that the principle of fault liability is the basic principle of civil tort application in China. The General Principles of Civil Law has no special provisions on the principle of tort liability in the special field of intellectual property. Therefore, the principle of fault liability stipulated in the second paragraph of Article 106 of the General Principles of Civil Law should be applied, that is, fault liability is the basic principle of intellectual property infringement liability in China.
However, as the World Trade Organization? Full members of WTO must abide by WTO rules, and the legal system of intellectual property rights must conform to the Agreement on Trade-related Aspects of Intellectual Property Rights? Minimum requirements of Trips agreement. Trips Agreement, as the most comprehensive multilateral agreement on intellectual property rights in the international community, affirms the principle of tort liability mainly embodied in Article 45. According to the analysis of Article 45 of the Trips Agreement, the following points can be drawn: First, when the judicial organ orders the perpetrator to stop the infringement, it does not need to consider whether the perpetrator is subjectively at fault, nor does it need the obligee to provide evidence that the perpetrator is subjectively at fault. However, this restriction does not apply to the innocent seller of infringing goods who obtains or orders the goods before he knows and should know the nature of his sales behavior; Second, under certain conditions, the judiciary can order the no-fault actor to bear the liability for damages by returning profits or paying legal compensation, that is, the infringer can bear the liability for damages without fault; Third, the infringer should be liable for damages in case of fault, and the obligee can also demand to pay the litigation costs. In a word, the Trips Agreement affirms that the general principle of liability for intellectual property infringement is the principle of no-fault liability, and whether the infringer is subjectively at fault has nothing to do with the determination of tort liability, but only with the liability for compensation. Looking at foreign legislation and judicial practice, there are similar protection provisions in the principle of intellectual property infringement liability, that is, the protection principle of providing the right to stop and prevent infringement on the premise that the subjective fault of the actor is not established and the claim for damages based on the subjective fault of the actor fully embodies the rationality and feasibility of this principle.
Although China has basically reached the minimum requirements of the Trips Agreement by modifying and perfecting the current legal system of intellectual property rights, especially the provisions on the inversion of burden of proof, preservation of evidence before litigation, prevention of imminent infringement and legal compensation, it is extremely beneficial to improve the legal system of intellectual property infringement liability in China, stop infringement in time, increase the crackdown on intellectual property infringers and improve the level of intellectual property law enforcement in China. However, in some respects, China's legal system still lags far behind that of other countries. In particular, the principle of liability for intellectual property infringement is still based on the principle of fault liability. Although Trips agreement allows it, it is increasingly inapplicable in judicial practice.
Second, the principle of compensation for infringement of intellectual property rights
In the trial of intellectual property infringement compensation cases, when the judge finds out the facts of the whole case after hearing the case, and determines the infringer's tort liability according to the imputation principle of tort compensation and the constitutive elements of tort, how to satisfy the victim's claim for compensation needs certain guidelines to follow and standardize. These principles are the principles of compensation for intellectual property damage. What kind of compensation principle should be determined for intellectual property damage compensation? In the field of intellectual property theory and intellectual property law, opinions are not uniform. The author believes that according to 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 legal standard compensation, the principle of judge's discretionary compensation, and the principle of appropriate limitation of mental damage compensation.
(A) the principle of full compensation
The principle of total compensation, also known as the principle of total compensation, is the most basic principle of compensation in modern civil law and a common practice in the legislation and judicial practice of tort in various countries. Article 45 of the current Trips Agreement stipulates: "Compensation for damages caused by infringement of intellectual property rights", and the money paid by the infringer to the obligee "may include appropriate legal fees", which is the embodiment of the principle of total compensation.
The meaning of the principle of total compensation refers to the scope of responsibility for intellectual property damage, and should take the scope of property losses caused by the infringer's infringement as the standard and bear full responsibility. Regarding the nature of damages, there has always been a dispute between compensatory viewpoint and punitive viewpoint. At present, due to rampant piracy and counterfeiting, the reasons for advocating punitive views seem to be stronger. However, the author believes that the nature of compensation for intellectual property damage is still to compensate the victim's property loss and mental damage first. 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 the victim can only make up for his losses and protect his rights by obtaining compensation, and there are almost no other ways with the same function that can make the victim get the same relief except the way of obtaining compensation. The function of punishing infringement includes other forms of civil liability, such as stopping infringement, and specific forms of civil sanctions, such as fines and confiscation, as well as administrative and criminal liability. Therefore, the function of compensation for losses is mainly a kind of compensation, a kind of "compensation" and "filling" of interests; Therefore, it is required to compensate the victim for all losses or damages as the standard and scope.
(2) the principle of statutory compensation standard
In view of the particularity of the object of intellectual property protection and the uncertainty of damage facts and consequences, many countries' intellectual property legislation stipulates the statutory compensation system for intellectual property infringement damages. This is particularly prominent in copyright legislation. Article 504 of the Copyright Law of the United States stipulates that the infringer can pay compensation of $250 to $65,438+$00,000 for each work infringed by him, and the compensation of $50,000 can be increased for each work with serious circumstances. Article 45 of Trips Agreement also has statutory damages? Provisions on predetermined damages. The principle of statutory standard compensation is that when the people's court cannot find out the actual loss of the victim and the profit of the infringer, or when the victim directly requests compensation according to the statutory minimum compensation, the people's court determines the compensation amount according to the compensation amount stipulated by law.
The object of intellectual property protection is intangible, infringement is easy to obtain evidence, and the losses suffered by the obligee are difficult to calculate. For example, in the case of computer software infringement damages, the victim bought two pirated software sold by the infringer as evidence and sued the court for compensation. When the court investigates and verifies the evidence, it can no longer obtain the sales evidence of other pirated software. Both software infringements are sold at the price of the owner's genuine software110, and the profit is extremely low. There is no obvious downward trend in the sales of software by the right holders. In this case, if compensation is made only according to the profits of the defendants of the two softwares, or according to the retail price of the two genuine softwares, or even if compensation is not made on the grounds of no loss, it is unfair to the obligee, inconsistent with the purpose of intellectual property legislation and justice, and extremely unfavorable to combating and stopping piracy and infringement. In order to fully compensate the obligee's losses, curb the infringement and embody the compensation and sanction functions of damages, it is necessary to find a "degree" of compensation amount and give specific legal provisions. It is estimated that if the retail price of software is above the medium level, 100 set may be an effective "legal standard compensation amount" in Beijing. No matter from the compensation for victims, or from the perspective of punishment or deterrence for infringers and people with infringement intentions, it has certain effects.
(3) The judge shall make compensation at his discretion
No matter how strict and specific the legal provisions on compensation for infringement of intellectual property rights are. This is actually impossible. No matter whether the principle of full compensation or the principle of statutory compensation is applied, it cannot be ruled out that the judge applies the law specifically according to the facts of the case in the trial and makes discretionary decisions on the case within the scope of the amount of compensation prescribed by law. The uncertainty of the result of intellectual creation damage and the complexity and diversity of cases make the compensation for intellectual property damage not simple and unified, just like applying a table. In the trial of intellectual property disputes, it is often difficult for judges to determine the plaintiff's losses, the defendant's profits and the amount of compensation. I feel that the legal provisions are not perfect and there are no operable provisions to follow.
Therefore, when determining the amount of compensation for intellectual property infringement, judges should and must be given certain "discretion" to meet the needs of hearing various cases. The so-called discretion means that the judge must be based on objective facts, in accordance with the general principles of the Civil Law and the basic principles of intellectual property law, and rely on the judge's own legal awareness and trial experience, carefully analyze and judge the case, and repeatedly consider the settlement methods of disputes between the parties, so as to pursue the civil liability of the obligee fairly, justly and reasonably and protect the legitimate rights and interests of the obligee.
(four) the principle of limiting compensation for mental damage
The intellectual property law of the General Principles of Civil Law of our country has not made clear provisions on whether the division of intellectual property rights can cause mental damage and whether mental damage can be claimed. According to Article 120 of the General Principles of the Civil Law, if a citizen's right to name, portrait and reputation is infringed, he has the right to demand that the infringement be stopped, his reputation be restored, the influence be eliminated, an apology be made and compensation be paid. The "compensation for losses" in this clause is generally interpreted as the legal basis for compensation for mental damage in China. At the same time, personal rights other than privacy, freedom, chastity and life and health are not considered to claim compensation for mental damage. But what is important is that the General Principles of the Civil Law establishes the legal system of compensation for mental damage, and the name right of legal persons is protected as well as the name right of citizens.
The compensation for losses stipulated in Articles 45 and 46 of the Copyright Law does not exclude the compensation for mental damage caused by the personal rights of the copyright owner. Another example is the act of making and selling works of art with fake signatures. Some scholars claim that this behavior infringes the author's right of signature, while others claim that it infringes the author's right of name, which is a violation of the author's spiritual rights and interests in any case. According to the provisions of Article 46 of the Copyright Law, apart from the economic losses caused by the infringement of the author's spiritual rights and interests, compensation is mainly compensation for spiritual damage. Although trademarks, patents and other intellectual property rights are different from copyright, infringement will also cause damage to the spiritual interests of the subject of intellectual property rights, such as goodwill, reputation and other rights about the name and reputation of legal persons. Some disputes that infringe on the reputation right of legal persons are unfair competition disputes between enterprises, and the infringed rights belong to the category of intellectual property protection.
However, the compensation for mental damage stipulated in the General Principles of Civil Law in China is not unlimited. It is limited by the type of infringed right, the degree of infringement, the subjective state of the actor and the application of other forms of civil liability. If we arbitrarily expand the scope of compensation for mental damage regardless of socio-economic and political conditions, historical culture and moral traditions, it will also have adverse social impact. In fact, some other countries also have legal restrictions on compensation for mental damage. Therefore, the compensation for moral damage of personal rights in intellectual property rights should also be restricted. These restrictions are manifested as:? 1 The application of compensation for mental damage shall comply with the legal provisions or relevant judicial interpretations in the Supreme People's Court, and can only be applied to the protection of moral interests of personal rights in intellectual property rights, and the scope of application shall not be arbitrarily expanded; ? 2. If the circumstances of the infringement are general, the civil liability form of stopping the infringement, eliminating the influence and publicly apologizing should be applied first, instead of compensation; ? Although the infringement of personal rights and interests in intellectual property rights is general, if property losses are caused, the actual losses caused can be compensated, and the forms of civil liability such as stopping the infringement, eliminating the influence and publicly apologizing can also be applied; ? If the circumstances of mental damage are serious and the application of other forms of civil liability is not enough to protect the rights and interests of the victims, the compensation for mental damage should be appropriate.
Third, the scope of compensation for intellectual property damage.
The scope of compensation for infringement of intellectual property rights should be based on the principle of full compensation, even if the intellectual property right holder suffers all actual losses due to infringement. Any infringement loss means nothing more than the reduction and loss of the existing property of the obligee and the reduction and loss of the available benefits caused by the infringement. It is usually divided into direct loss and indirect loss of tort damage.
What is the reduction and loss of existing intellectual property rights and what is the reduction and loss of available benefits of intellectual property rights? What is the direct or indirect loss of intellectual property infringement? People's understanding is not consistent. Some computer software developers do not take immediate measures and remedial measures to prevent their software from being infringed by piracy, but wait for half a year before they can file a lawsuit with the court and demand compensation. This is obviously not conducive to protecting their intellectual property rights.
General property has realistic and definite value. The damage of general property ownership is also directly manifested in the damage and loss of existing property; The damage to people's right to life and health is directly manifested in the direct loss of medical expenses, treatment expenses and nursing expenses of the victims or their relatives. However, the value of creative intellectual achievements protected by intellectual property rights can generally be realized through the transformation of tangible property. In other words, the realization of intellectual property value needs to face the open intellectual property market, which is conditioned by the use and transaction of intellectual property and always restricted by market factors. The intellectual property rights enjoyed by the obligee are mainly transformed into the wealth of the intellectual property subject through the income or income of the intellectual property rights enjoyed by the obligee. The size and level of income, in addition to the characteristics of intellectual achievements, mainly depends on the market share of the intellectual property. Therefore, the property loss caused by the damage of intellectual property rights is completely different from the property loss caused by the damage to general property and personal life and health mentioned above. Property losses caused by intellectual property infringement are mainly manifested in the decrease or loss of available income, which means the decrease of market share of intellectual property or the depreciation of the value of rights, as well as other property losses caused by intellectual property rights holders, including the positive loss of their property caused by the right holders to eliminate the consequences of intellectual property damage. In addition to the property losses caused by intellectual property rights, the compensation for intellectual property damages also includes compensation for mental damages.
According to the above analysis, the compensation for intellectual property infringement damage should first include the compensation for intellectual property loss and the compensation for personal spiritual rights and interests of intellectual property. The scope of compensation for loss of property rights and interests includes:
One is direct loss. That is to say: 1. Losses caused by income reduction and losses such as intellectual property royalties directly caused by infringement; 2 reasonable expenses for investigating, stopping and eliminating illegal acts; 3. Property losses caused by infringement of intellectual property rights and personal spiritual rights.
The second is indirect loss. It refers to the loss of the future property interests of the intellectual property rights infringed by the obligee within a certain range, which belongs to the scope of "other major losses" stipulated in the third paragraph of Article 1 17 of the General Principles of the Civil Law, "If the victim suffers other major losses as a result, the infringer shall compensate for the losses". The indirect loss of intellectual property damage refers to the loss caused by the reduction or loss of expected benefits in the process of intellectual property being in the value-added state of production, operation and transfer. The indirect loss of intellectual property rights is caused by the obligee's inability to normally use intellectual property rights for business activities. Tort law theory generally believes that this indirect loss has three characteristics: 1? What is lost is a benefit that can be obtained in the future, which is only a possibility of obtaining property when the act of allocating harm is implemented, not a real benefit; 2? This lost future benefit is of practical significance, not abstract or hypothetical; 3? This available benefit must be within a certain range, that is, the range directly affected by intellectual property damage.
Four, the calculation of intellectual property damage compensation
After determining the principle and scope of compensation, the concrete calculation of damages in judicial practice is the key issue. The calculation method of intellectual property infringement damages is 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 the patentee, in patent contract disputes, the licensee is usually required to pay liquidated damages and compensate for the losses; In patent infringement disputes, most of them demand compensation for losses.
Regarding the amount of compensation, Article 60 of the Patent Law stipulates: "The amount of compensation for infringement of patent rights shall be determined according to the losses suffered by the obligee or the interests gained by the infringer due to infringement; If it is difficult to determine the loss of the infringer or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. " The Supreme People's Court 200 1 Provisions on Applicable Legal Issues in the Trial of Patent Disputes stipulates the following standards and calculation methods for determining the amount of damages:
1. The amount of compensation for the actual losses suffered by the patentee due to infringement. The calculation method is: because the infringing property products of the infringer are sold in the market, the sales volume of the patented products of the patentee decreases, and the product of the total sales volume reduction multiplied by the profit income of each patented product is the actual economic loss of the patentee. It is expressed by the formula: the sales reduction of the patentee × the profit of each product = the compensation amount. The actual economic losses suffered by the patentee due to infringement generally include the following two kinds of losses: first, the loss of profits caused by the decline in sales of patented products. The second is the loss of patented products being forced to sell at a reduced price.
2. The amount of compensation for losses shall be all the profits obtained by the infringer due to infringement. The calculation method is: the product of the profit obtained by the infringer from each infringing product multiplied by the total sales in the market is the total profit obtained by the infringement. Expressed by formula: profit per product × infringer's sales volume = compensation amount. This method is more suitable for infringers who have widely sold infringing products, normal management, clear accounts and reasonable profits. When the infringed party has not made a profit due to the infringement, or the infringed party claims that it has not made a profit or underreported the profit, and the accounts are chaotic, so that it is impossible to find out or there is no account at all, the Supreme People's Court's Several Provisions on Applicable Legal Issues in the Trial of Patent Dispute Cases shall apply.
3. Take a reasonable amount not less than the patent license fee as the amount of compensation for losses. This standard for determining the amount of compensation is based on the reasonable transfer of patent royalties in a certain area as a reference value to recover the losses caused by infringement in the same area from infringement. The patentee's patented product has not been put on the market in large quantities, or the patentee has not implemented the patented technology, or the patentee has transferred the patented technology by means of general license, and the infringing product of the infringer is needed by the society, or the sales volume of the infringing product will not occupy the patentee's sales market or lead to a decrease in sales volume. Therefore, it is impossible for the patentee to provide evidence of losses suffered due to its infringement. If the evidence provided by the infringer for profit is insufficient, this standard can be used to determine the compensation amount.
4. Other calculation methods agreed by both parties. The parties may agree to use other calculation methods to calculate the amount of damages, so long as it is fair and reasonable, the people's court shall allow it.
It should be pointed out that no matter which standard is adopted to determine the amount of compensation, the following expenses of the patentee should be included in the scope of compensation: the cost of collecting evidence to prove the infringement, the cost of stopping the infringement, the cost of restoring reputation, the cost of advertising and making a statement, the travel expenses and lawyer's fees for requesting administrative relief or company relief, the case acceptance fee, appraisal fee and investigation fee required for bringing an infringement lawsuit, etc.
In a word, the compensation for intellectual property infringement damage should be based on the principle of tort liability, according to the principle of damage compensation, combined with the specific circumstances of each damage compensation case, and comprehensively consider the calculation of compensation amount. Judges who undertake cases, as well as judges or judges who participate in handling specific cases and making judicial decisions, should strictly follow legal procedures, pursue fairness, justice and justice to the maximum extent, strive to be legal and reasonable, and implement the basic principles of intellectual property law and the guiding ideology of intellectual property case trials from beginning to end.