"In many copyright data infringement cases, there is often a huge gap between the cost and benefit of infringement. In cases of enterprise data infringement, enterprises often pay high costs to maintain the order of the platform and a good platform ecology, while the infringer does not have to pay any consideration, but can directly use the infringed's high-quality data resources to obtain user traffic, membership fees, advertising fees, etc. by improper means. At the forum on judicial protection of intellectual property rights in the free trade zone held a few days ago, Fu Yaolu, a lawyer at Shanghai Rongli Tianwen Law Firm, said that the infringed enterprises can actively claim punitive damages and effectively protect their intellectual property rights.
Fu Yaolu took the infringement of post-broadcast as an example to introduce the use of punitive damages by enterprises to resolve disputes. Follow-up infringement is a typical category in film and television data infringement disputes, which refers to the infringement of the infringer's publication and dissemination of the first round of updates of popular films, television and variety shows**. After the right holder publishes ** on the same day, the infringer publishes the infringement** within a few minutes. These infringements are often in the form of complete episodes or splitting an episode into a collection of N fragments, which is convenient for the audience to connect seamlessly**, and it is very easy to develop the Xi habit of following the infringer to watch the movie, which is obviously harmful to the interests of the right holder.
When the right holder makes a claim, it usually claims compensation from the platform published by Chase Broadcast**. In such cases, the subjective fault of the follower platform is a prerequisite for infringement to be constituted. Fu Yaolu said that after receiving the infringement notice from the right holder, the infringement on the "chasing broadcast" platform can already be determined to constitute subjective intent. In addition, if the aggravating circumstances on top of this, such as the platform discovers repeated infringing users or users who are engaged in infringement, but ignores them, the situation can be considered as a subjective malicious escalation of the platform.
In addition, in order to better supervise the performance of the platform's obligations, "acting in advance" may also be used as one of the reference factors for "serious circumstances". "If the post-broadcast platform has previously infringed on the rights holder's other works, or even been adjudicated by the court, but has not made any rectification or changes to the platform's business model, infringing sector or handling of infringing users in the current case, there is a possibility that the circumstances will be found to be serious. Fu Yaolu said.
In a follow-up infringement case, it is often difficult to calculate the actual losses of the plaintiff and the benefits of the defendant. The Interpretation of the Supreme People's Court on the Application of Punitive Damages in the Trial of Civil Cases of Infringement of Intellectual Property Rights stipulates that if the above factors are difficult to calculate, the people's court shall make a determination with reference to the reasonable multiple of the royalty in accordance with the law.
Fu Yaolu said that the works of film and television platforms are often divided into exclusive works and non-exclusive works, and there is no right distribution contract for exclusive works, and there is no third-party genuine platform. Compared with non-exclusive works of the same grade, the loss of user traffic and the damage to membership and advertising costs caused by infringement are more serious. Therefore, for exclusive broadcast works, it may be possible to refer to the rights distribution fee of the same kind of work, or refer to the scale of the infringing platform and the licensing platform, the actual situation of the infringement, and compare the purchase amount to determine the base amount of punitive damages, so as to effectively apply punitive damages to the follow-up behavior.
*: China ** newspaper author: Mu Qingfeng.