Ｃｈａｒａｃｔｅｒｉｓｔｉｃｓ ｏｆ ｔｈｅ Ｐｅｏｐｌｅｓ Ｃｏｕｒｔｓ Ｏｒｄｅｒ ｔｏ Ｃｏｍｐｅｎｓａｔｅ Ｄａｍａｇｅｓ ｆｏｒ Ｃｏｐｙｒｉｇｈｔ Ｉｎｆｒｉｎｇｅｍｅｎｔ

The issue of damages has long been a hard nut to crack in court heatings of cases ofdispute over copyright infringement. Recently， the Beijing Higher People's Court hasfound out， while conducing a study of 206 copyright infringement cases (162 cases of firstinstance and 44 cases of second instance)， the following eight characteristics of the People'sCourt's ruling on compensation of damages.1. The amount of plaintiffs' claims is very different from that decidedon by the People's Court (see the table below).

As the above statistics obviously show， in the 162 cases under the study， the amount(including reasonable expenses) of damages determined by the court for most cases islower than 50% of that claimed by the plaintiffs， and the cases in which the court supportsthe claims are in inverse ration to the number of case， which shows that most plaintiffs\"expect higher\" damages and that only part (or even very small part) of their claims fordamages is supported by the court. For example， in a case of copyright infringement， aperson by the name Cheng v. a university press and a person by the name Xi， the defen-dants collected and published the plaintiff's award-winning composition of 200 words ina collection of works edited thereby. The plaintiff claimed for the damages of RMB 10，000Yuan， but the court finally decided that the defendants pay RMB 600 Yuan in compensa-tion of the damages， with only 6% of the claimed damages being supported by the court. The mainreason for this phenomenon to arise is the lack， on the part of the plaintiff， of knowledge about howdamages are calculated or his misunderstandingthat all the defendant's profits are his losses， orhis direct borrowing of the method of calculationfrom some foreign countries without consideringthe practical situations in China. There are stillsome cases in which the courts make their rulingon the basis of the facts found because some ofinfringement facts as claimed by the plaintiffs arenot supported by evidence.

In the above statistics， there are only 13 casesin which all the plaintiffs' claims for damages aresupported by the court. There are mainly four cir-cumstances in these cases: (1) the plaintiffs'claimed damages are supported by similar prece-dents; (2) the plaintiffs' methods of calculation ofthe damages are compatible with the law provi-sions and supported by sufficient evidence; (3) thedefendants' infringement produces serious circum-stances and they fail to submit relevant evidenceand the courts decides on the damages accordingto the facts of the cases; and (4) the plaintiffs'claims for \"symbolic\" damages of， say RMB 1Yuan， are fully supported by the court.

2. The court determines the amountof damages mainly on the basis of theeconomic losses to the rightholdersand according to the statutorydamages.

Of the 162 cases of first instance in the presentstudy， there are 78 cases in which the court de-cides on the amount of damages on the basis ofthe economic losses to the rightholders， account-ing for 48%; there are 10 cases in which the dam-ages are decided on the basis of the infringers' il-legal profit， accounting for 6%; there are 48 casesin which the statutory damages are applied， ac-counting for 30%; and the rest 16% of the casesare closed through mediation.

As the above statistics show， the court's deci-sions on the amount of damages are made mainlyon the basis of rightholders' losses since themethod of calculation is most directly compatiblewith the comprehensive damages doctrine， and caneffectively compensate the losses an infringing actinflicts to a rightholder. Besides， it is easy to workout the calculation. It is often the case that the statu-tory rates of royalties and licensing fees serve asthe norm of reference. The main reason that aninfringer's illegal profits seldom apply in practiceis that a defendant usually does not present evi-dence showing the profits made， which renders itdifficult to reveal his/its illegal profit.

The statutory damages are relatively more ex-tensively applied， which how， in one aspect， thedifficulty in determining the amount of damagesfor copyright infringement. It is indeed an effi-cient and relatively impartial way for the judgesto decide at their discreption on a reasonableamount in the light of a variety of a variety of fac-tors， which mainly includes the circumstances， na-ture， degree of subjective fault of an infringement，the originality of a plaintiff's work and scale ofthe defendant's business operation. The circum-stances of infringement in turn include the mode，time and scope of infringement.

3.It is usually difficult for plaintiff'sclaims for mental reparation to besupported by the court.

In 28 (17%) of the 162 cases under the study，the plaintiffs claimed for mental reparation of vari-ous amounts， and none of them were finally sup-ported by the court. The charges on which plain-tiffs claimed for mental reparation are that (1) thedefendants dlaeiarise their works: (2) the defen-dants use， without their authorization， their worksin business activities; and (3) their personal rights，such as the rights of authorship and amendment，are infringed. The court refuses to support theplaintiffs' claims of the kind mainly on the groundthat ordering a defendant to be civilly liable formaking a public apology or eliminating influencehas fulfilled the purpose of repairing their mentalinjury. As a case in point， a person by the nameLiu v. a publishing house， the defendant took 1，270words out of a work the plaintiff published on theInternet and published them together with otherworks without the authorization from the plaintiffand without indicating the author's name. Thecourt ruled that the defendant be liable for the dam-ages and make and apology on the SINA website，and rejected the plaintiff's claim for RMB 1，000Yuan for mental reparation on the above ground.4. Most plaintiffs' claims forcompensation of their reasonableexpenses are supported by the court.

In 81 (50%) of the 162 cases under the study，the plaintiffs claim for compensation of their rea-sonable expenses for ceasing the infringement orcovering the litigation payments. Given the factthat what are stated in some ruling paper or over20 mediation awards do not adequately expressthe plaintiffs' litigant claims， the ratio of the casesin which claims are actually made for compensa-tion of reasonable expenses is well over 50%. In69 (85%) of the 81 cases in which such claims ardmade， the court finally supports the plaintiffs'claims for compensation of their reasonable ex-penses. The reasonable expenses include， amountother things， the lawyer's fee， notary fee， expensefor investigation and evidence collection， andtranslation fee. While the courtsupports the claims for reason-able expenses in a relativelylarge percentage of the cases，the cases are few in which thecourt supports the full amountclaimed. Especially in thecases of the lawyer's feecharged as agreed， the courtnormally determines theamount of damages accordingto specific circumstances. Asfor the notary fee and expensesfor evidence collection， if aplaintiff is the winner and if heprovides relevant evidence， thecourt would fully support hisclaim. For example， in thecopyright infringement caseheard by a court， i.e. a personby the name Han v. aGuangzhou-based companyand other two defendants， theplaintiff claimed for the eco-nomic damages of RMB400，000 Yuan and for recov-ery of his reasonable expenses of RMB 38，220Yuan， including the layer's fee of RMB 32，000，notary fee of RMB 1，000 Yuan and investigationexpenses of RMB 5，220 Yuan. The court finallyruled that the defendants pay the plaintiff RMB63，800 Yuan in compensation of his economiclosses and RMB 7，800 Yuan to recover his rea-sonable expenses incurred. The factors on whichthe court determined the reasonable expenses in-cluded the necessity and rationality for the aboveexpenses， the defendants' fault and the referenceto the relevant provisions. To date， the courts maketheir decisions along the line according to the nowabolished rate of the lawyer's fee issued by theMinistry of Justice.

5. There are relatively a largenumber of cases in which one plaintiffsues different defendants or differentplaintiffs respectively sue onedefendant; the same courtdetermines the amount of damagessubstantially consistently.

These cases， also known as \"interconnectedcases\" in the judicial practice， are common in casesof dispute over copyright. The courts in Beijingare relatively consistent in their determination ofthe amount of damages in these cases. This is es-pecially the case within a court. Of the 162 casesof first instance under the present study， there are10 cases in which the Beijing Birdman Art Pro-motion Co.， Ltd. sued several phonogram distribu-tors for infringement of its exclusive right to usemusic works and the right of phonogram produc-ers; there are 8 cases in which the Beijing MeihaoPictures Co.， Ltd. sued several newspapers pub-lishers for infringement of the copyright n its pho-tographic works; there are 7 cases in which theBeijing Jiahuayuan Science and Technology Co.，Ltd. sued several newspapers publishers for in-fringement of the copyright in its photographicworks; and there are 18 cases in which Liu Rong，et al. sued the China Youyi Publishing Corpora-tion for infringement of the copyright right in theirworks. They are altogether 43 cases， accountingfor 27% of all the cases of first instance. Besides，together with the cases in which the UniversalRecords Co.， Ltd. and the Zhengdong Records Co.，Ltd. used several publishing houses， and CD re-production businesses for infringement of therights of phonogram producers， the total numberof \"interconnected cases\" exceeds a third of allthe cases studied. The way the court calculates anddetermines the amount of damages is relativelyconsistent in terms of the final calculation. As acase in point， in hearing the case the Beijing Bird-man Art Promotion Co.， Ltd. v. several CD dis-tributors， the court calculated the infringementdamages at RMB 10，000 Yuan per infringing tapeand RMB 20，000 Yuan per CD; in the case theBeijing Jiahuayuan Science and Technology Co.，Ltd. v. the advertisers， the court calculated the in-fringement damages at RMB 8，000 Yuan per useof one phonogram work.6. A defendant's subjective fault is thepre-condition for the court to holehim/it civilly liable， and theseriousness of the fault has relativelygreat impact on the amount ofdamages determined.

The study shows that the Beijing courts ap-ply the fault liability doctrine in establishing civilliabilities， including applying the presumptivefault doctrine to some cases. Since the presenceot tault is the key to establishing civil liabilities，clear statements about subjective fault on the partof defendant are made in most ruling papers， andthey are then held civilly liable. Meanwhile， inthe presence of specific law provisions， the courtshould strictly apply the presumptive fault doc-trine in these common circumstances where abook or CD retailer sells infringing reproductions.If he/it cannot prove the legitimate source of thereproductions， he/it is presumed to have subjec-tive faults.

The seriousness of an infringer's subjectivefault has some direct bearing on the determina-tion of the amount of damages. For example， whenthe amount of damages is to be determined ac-cording to the rate of royalties issued by the Na-tional Copyright Administration， if the infringerhas very serious fault， the court usually refers tothe higher rate of royalties， and decides on theamount of damages by choosing a relatively higherrate within the range of 2 to 5 times multipliedwith the reference value. As for ascertained ille-gal profits made by an infringer， if the infringerhas serious subjective fault， the court takes the salesturnover (not the net profit) of the products as theamount of damages. As for statutory damages， theseriousness of an infringer's subjective fault has adirect bearing on the determination of the amountof damages: where the infringement circumstancesare similar， the more serious the fault is， the higherthe amount of damages will be.

7. Joint defendants are mostly jointlyliable for damages.

The defendants are joint defendants in 72 cases(44%) of the 162 cases under the study. The courtfinally rules that the defendants are jointly liable，and the remaining cases are closed through me-diation， or end up in imposition of separate liabil-ity for damages in the absence of joint infringe-ment. The cases in which defendants bear jointliability are of three circumstances: (1) all the de-fendants are jointly liable for the full amount ofdamages; (2) some defendants are jointly liablefor the full amount of damages， while other de-fendants are jointly liable for part of the damages;and (3) some defendants are jointly liable for onepart of the amount of damages， while other defen-dants are jointly liable for the other part of the dam-ages. Joint defendants who jointly bear the liabil-ity are plagiarizers， newspaper or magazine pub-lishers and publishing houses publishing infring-ing works; publishing houses and CD reproduc-ers producing infringing audiovisual products; ad-vertisers， advertising agents and advertisement dis-tributors of infringing advertisements. Establish-ment of joint liability for damages makes the is-sue of copyright-related damages more compli.cated.

8. lhe court of second instanceamends fewjudgements of firstinstance， and affirms the decisions of，and damages calculation method in，host judgements of first instance.

Of the 44 cases of second instance under thestudy， there are 35 cases in which the court of sec-ond instance upholds the original judgement， 2cases closed through mediation， and 7 (account-ing for 16%) cases in which the judgements offirst instance are amended. Of the cases withamended judgement of first instance， there is oneouse in which the second-instance court holds thejudgement of first instance is decisively errone-ous and amends it， resulting in changed amountof damages， and there are three cases in which thejudgements of first instance are amended becausethe second-instance court believes that the mainfacts are not ascertained in respect of the dam-ages. For example， in the case of appeal involvingcopyright infringement， the journal of China Sci-ence v. the Chongqing Weipu Information Co.，Ltd.， the second-instance court holds that the first-in-stance court does not quantitatively ascertainthe defendants' infringement. After the relevant

If a book or CD cannot provethe legitimate source ofproductions， he/it is presumedto have subjective faultsfacts were ascertained， the second-instance courtreduced the amount of damages as determined inthe judgement of first instance. There are threecases in which the two courts are different in theiropinions on how to determine the amount of dam-ages， and the judgements of first instance areamended. For example， in the case of appeal， aperson by the name Ren v. the Henan ProvinceStamp Collection Corporation， a case of copyrightdispute， the latter used， without authorization ofthe former， the work of fine art in which the formerenjoyed his copyright as the device of a stamp al-bum， the first-instance court determined the dam-ages of the amount of RMB 34，000 Yuan on thebasis of the plaintiff's actual losses. The second-instance court held that the first-instance court'smethod of calculation was not due， and establishedthat the amount of damages was RMB 85，000 Yuanaccording to the relevant State provisions and withconsideration taken of the various factors.