JUDICIAL DISCRETION OF THE ECONOMIC COURT DURING THE ESTABLISHMENT OF THE COMPENSATION FOR COPYRIGHT AND RELATED RIGHTS INFRINGEMENT

Abstract

This article is devoted to the study of the problem of using judicial discretion during the application of norms on the compensation for copyright infringement. This research studies the rules of law regulating the compensation on the basis of the amount of royalties which would have been due if the infringer had requested authorization to use the object in question. The research is based on the norms of Ukrainian law, in particular the Law of Ukraine On Copyright and Related Rights and the Civil Code of Ukraine devoted to the regulation of the subject matter. The Law of Ukraine on Copyright and Related Rights establishes the system of remedies for copyright infringements. One of the remedies is compensation in twofold (or in some cases threefold) sum of royalties which would have been paid if the infringer had requested authorization to use the object of exclusive rights. The author describes some problematic issues with the remedy: the connection between compensation and damages of the copyright proprietor, the mechanism of establishment of hypothetical royalties, etc. From the author’s point of view the remedy should be understood as a kind of civil liability. As a result, the remedy is regulated by the common principles of civil liability. Accordingly, the sum of compensation for infringement must principally be proportionate to rightholder’s losses. The possibility to achieve just results can be found in court’s power to use judicial discretion. Judicial discretion must be understood as power to make choice between alternatives which are all lawful. Judicial discretion is the main legal mean to achieve reasonable and just results under difficult circumstances of the deficiency of evidence of actual losses. The power to make choice is based on specific prescriptions of law. The language of the norms of the Law of Ukraine On Copyright and Related Rights, the Civil Code of Ukraine lets to say that the power in question is vested by using of evaluative concepts. For instance, The Law of Ukraine On Copyright and Related Rights provides that the sum of compensation must be effective, proportionate and deterrent, aimed at restoring violated rights. The listed terms do not have precise meaning and must be determined by court. To apply relevant rules the court must establish the sum of royalties which would have been paid for using the object of exclusive rights. The Law does not contain detailed rules concerning the methods of calculation of royalties. In particular, there exist no rules on the conditions of hypothetical use of a subject matter. Accordingly, the court possesses the power to determine the conditions. In conclusion, judicial discretion is an essential and needed legal instrument which makes it possible to apply the norms on compensation.