The Determination of Punitive Compensation Base for copyright Infringement

Abstract

Accurate determination of the compensation base is the key to bringing the punitive compensation system into play. However, in judicial practice, the three legal bases of the actual loss of the obligee, the infringement profit of the infringer and the right licensing fee are all faced with the problem of difficult proof. At present, the calculation of the punitive damages base has been widely discussed, but the research on how to improve the use rate of the legal base to calculate the amount of compensation is still insufficient. This paper analyzes the high burden of proof faced by the obligee in selecting the legal base. Based on this, this paper puts forward the following suggestions: Firstly, the proof standard of presumption and "probability predominance" is adopted to reduce the burden of proof of the obligee. Secondly, improve the applicability of reasonable licensing fees and clarify the quantitative standards. Finally, the agreed compensation is used to calculate the amount of compensation when the actual loss and infringement profit cannot be calculated directly.