非法发行链上的侵权所得赔偿

在合法利用他人作品的情形,著作权人只能要求发行链第一个环节的发行人支付报酬,而在非法利用他人作品的情形,著作权人却可以同时要求发行链所有环节的侵权人赔偿各自的侵权所得。判断赔偿是否超额不应当以权利人在合法发行链上能够收取的报酬为准,而应当以被侵权人所遭受的损害为准,只有超出损害的赔偿,才构成超额赔偿。被侵权人以与侵权人同样的方式利用作品所能够获得的利润就是以特殊方法计算出来的损害。允许权利人获得非法发行链各环节的全部侵权所得并不构成超额赔偿。在计算上游侵权人应当赔偿的侵权所得时,不应当扣除下游侵权人已经支付的赔偿金。利用发行权一次用尽或者连带责任的原理将赔偿义务人的范围限定在非法发行链某一个环节的做法不值得借鉴。

Compensation for Profit Loss Suffered from Copyright Infringement in Illegal Distribution Chain

The compensation for copyright profit loss does not create an independent compensation liability. All the profits of the infringer earned that are attributable to the infringement just equals to the amount of damage suffered by the copyright holder. Compared to the traditional compensation for tort, the special feature of the compensation for copyright profit loss is its calculation method. The traditional method is to assume that the right holder didn''t suffer any loss, while the calculation method for the compensation for copyright profit loss is to assume that the copyright owner can utilize his work and earn the same profits as the infringer''s. That is, the law assumes that the copyright holder either implements every act in the chain of distribution personally, or authorizes others to exercise part or all of distributions by the licensing contract. When determining whether the compensation is excessive or not, we should judge from the perspective of the damage or loss the right holder has suffered and not from the remuneration the copyright owner can obtain when work is used legally. Although according to the general principle of the exhaustion of distribution right, the copyright holder can only request the first distributor in the chain of legal distribution to pay for remuneration, the compensation made by the first distributor cannot lead to the exhaustion of all the other rights in the chain of illegal distribution. The right holder may also ask other infringers to pay back their benefits earned from their infringement. When calculating the amount of compensation for copyright profit loss, the subsequent infringer''s compensation cannot be deducted, otherwise, the claimant cannot recover all the loss suffered.