Editor's note: Liffers Mr. Is an audiovisual work "Two hometowns: Cuba and the night (Dos Patrias, Cuba y La Noche) " Director of, Scriptwriter and producer, right Mandarina Production company and Spain Telecinco A documentary made by a television channel about child prostitution in Cuba was used without permission "Two hometowns: Cuba and the night" Part of the content of the infringement of litigation. Read on for more details!
[background] Liffers Mr. Is an audiovisual work "Two hometowns: Cuba and the night (Dos Patrias, Cuba y La Noche) " Director of, Scriptwriter and producer, right Mandarina Production company and Spain Telecinco A documentary made by a television channel about child prostitution in Cuba was used without permission "Two hometowns: Cuba and the night" Part of the content of the infringement of litigation.
The plaintiff's work is about living in Havana (Cuba) The love story of six people, What they all have in common is that they are gay or transgender. The defendant's documentary used hidden cameras to document child prostitution and related crimes in Cuba.
The plaintiff is demanding that the defendant be liable for the infringement of the unauthorized use of his work, Amount of compensation 6, 740 euro, The calculation assumes that the defendant has permission to use the content of his work, The licensing fee to which the plaintiff shall be entitled. In addition, Cause mental injury to plaintiff by tort, The plaintiff also asks the defendant to bear 10, 000 The Euro's liability for mental damage.
The court of Cassation requested the European Court of Justice (Court of Justice) A preliminary determination was made on the following issues, After the plaintiff has held the defendant liable for damages under the assumed royalty standard, Whether the defendant can also be required to bear the corresponding responsibility according to the principle of compensation for mental damage? "The European Parliament and the European Commission 2004 years 4 month 29 Japanese directive on enforcement of intellectual property rights (The first 2004/48/EC No) " (Hereinafter referred to as "European Union regulation 2004/48/EC Number instruction" ) And Spanish law both classify emotional distress as a negative economic consequence.
[conclusion] First of all, The court stated that, "European Union regulation 2004/48/EC Number instruction" The first 13. 1 The first paragraph sets out the general rules: The competent judicial authority shall require the infringer to make payment to the infringed "Equivalent to the actual damage caused by its tortious act" compensation. Able to prove the existence of emotional distress, Such as damaging the reputation of the author, The actual loss suffered by the infringed.
The ruling also stated that, "European Union regulation 2004/48/EC Number instruction" The purpose of the legislation is to (European Union) The internal market provides for intellectual property "sufficient, Equal and proportionate" Protection of, The specific circumstances of each case should be taken fully into account in determining the corresponding measures, Process and compensation, etc. Therefore, When calculating the exact amount of compensation, Shall ensure that the right holder suffers as a result of the infringement "Actual damage" Be fully compensated, There is mental damage, It is also subject to compensation.
Thus, European court of justice ruling, When determining the amount of compensation, The lump-sum compensation determined solely on the basis of the assumed royalty standard can only compensate the intellectual property rights owner suffered "Material damage" . In order to ensure that the right holders get adequate compensation, In addition to the above criteria, The obligee also has the right to claim compensation for all emotional damage he has suffered.
To sum up, "European Union regulation 2004/48/EC Number instruction" The first 13. 1 Article shall be understood as, The party that is allowed to suffer damage as a result of intellectual property infringement, Except in accordance with this article (b) The provisions of, It may claim compensation for material damage in addition to the standard of licensed or assumed licensed use, It may also be pursuant to that article (a) The provisions of, And seek damages for emotional distress.
[comment] "European Union regulation 2004/48/EC Number instruction" The misclassification of emotional distress, Led to a series of similar controversies, That is, after the infringed chooses to apply the assumed royalty principle to claim compensation for material damage, Can I get it right (For the same tort) Compensation for mental damage suffered?
The European Court of Justice corrected the above legislative defects through the ruling in this case, No doubt of great significance. If emotional damages are intrinsically different from material damages, And EU law is designed to prevent the right holder from suffering "real" Provision of damage "proportionate" compensation, So why not ask for both types of damages to be calculated?
The ruling is important not just for copyright cases: trademark, In patent and design legislation, there is also the problem of mental damages and the accumulation of assumed royalty compensation.
compile: Liu Dan, Esabarry Legal Counsel
source: Esabaril (ELZABURU) Intellectual property rights