Some aspects of compensation of losses in the sphere of copyright
The question of proof in court the amount of losses (property damage), including loss of profits in copyright law – rather problematic. Considering the ways in which moving existing case law (including accumulated specialist law firm “Сolares”) on the compensation of the losses , caused by infringement of copyright and related rights, the following can be noted.
According to the current legislation of Ukraine holders who have suffered damage as a consequence of the violation of their property copyright and related rights, have the right to recover in several ways. So, according the item “d” of Part 1 of page 52 of the Law of Ukraine “About Copyright and Related Rights” actually provides three ways to protect the author’s property rights in the courts:
Compensation of damages (material damage), including lost profit;
Collection of the income received by the infringer of copyright;
One of the most simple way is the collection of any income received as a consequence of the violation of copyright law. Thus it is necessary to take into account that the amount of such penalties are not always can satisfy the subject of copyright law, because the income is not always corresponds to the damage, which is in fact caused by violation of copyright or may be caused in the future. Therefore, it was legally enshrined, in addition to collection of income, such kinds of satisfaction of the requirements of the copyright holder as a compensation for lost profit and compensation.
The necessary conditions for a recovery in the court of the damage caused, including lost profits, as well as to obtain appropriate compensation, is proof of the following facts:
Guilty violation of copyright and / or related rights, which must be expressed in any violations of the powers subject to copyright (such as the illegal publication of the work or the illegal reproduction);
The infliction of harm and their size (that is the main difficulty in producing evidence in court);
The causal link between the violation of the right and the infliction of losses.
Only unequivocal proof of the above facts together give a guarantee regarding the successful solution of the case by the court and make a judgment in favor of the subject of copyright and / or related rights, whose rights have been violated by illegal actions.
In proving copyright infringement, as well as in proving causation, it is necessary to proceed from the circumstances of each case, that is, it is necessary to prove what is the basis copyright, how it was violated and how it affected the violation of property damage. In this case, to prove the extent of damage (in case it lost profits, rather than direct injury) can not circumvent the application of assumptions, which are rather difficult to justify.
So, taking into account peculiarities of legal relations in the sphere of copyright and related rights in the judicial practice of the few cases, when the subject of the proceedings is a collection of exactly the lost profit.
At the same time, the domestic law provides for an alternative way of compensation for the damage.
Thus, according to the point «d» of part. 2 of the article. 52 of the Law of Ukraine «About copyright and allied rights» provide for the payment of the amount of compensation determined by the court, in the amount from 10 to 50 thousand minimal wages, instead of compensation of losses or collection of income (taking into account the established amount of the minimum wage currently in 1102 UAH., 50 thousand times the minimum monthly wage is 55.1 million hryvnias).
Compensation does not require precise calculation of the amount of damage, which is an advantage in the subject of evidence before the recovery of lost profits. However, this does not mean that the court in determining the amount of compensation is absolutely no obligation does not take into account objective criteria, indicating the amount of damage. The amount of compensation shall correspond exactly to the amount of damage, but should properly refer to it.
Thus, the collection of compensation provided for by Law «On copyright and allied rights», is an alternative kind of responsibility, which gives the opportunity to avoid difficulties of proof of damages, in particular loss of profits, that is because of the specific nature of the violations in this sphere.