Download This PaperReassessing Damage Remedy to Online Copyright Infringement
98 Pages Posted: 7 Oct 2012
Date Written: August 16, 2012
Abstract
To effectively enforce a given right, the right holder needs to focus on two factors: the first factor concerns ex ante precaution, which means making prohibitive rules that aim at any kind of violations. The second one, more importantly, concerns efficient ex post remedies which compensate the losses of right holders as a result of infringements. In the context of copyright, such framework remains the same. Copyright damages, inter alia, function as a highly important role in copyright law for enforcement. For one, copyright damages can give prevailing party actual benefits -- monetary compensation. Such benefits can preserve sufficient incentives for right holders to continue creation of new works. For another, significant amount of damages no doubt deprive infringers of unjust enrichment and deter future violation. Under the circumstances, copyright damages primarily design for the protection of copyright and maintaining the progress of culture.
Stepping into digital age, each copyright holder regards their online works as personal property and seeks to effectively enforce their copyright online. They frequently depend on damages for enforcement when infringements occur, yet the high frequency eventually lead to unreasonable results. The reason lies in the misunderstanding of property rules and the application of such misunderstanding to copyright damages. Never a property owner can internalize all positive externalities. So, copyright holders should not rely on damages to internalize all positive externalities from their online works so long as they are sufficiently compensated. Theoretically, copyright law is enacted to “promote the progress of science and useful arts.” Hence, permitting some free riding online will better achieve the purpose because most copyright creations rely on preexisting works.
Whether copyright damages are efficient lies in how the final awarding affects disparate groups. On one hand, copyright holders need sufficient compensation to preserve incentive for further creation. Lacks of such incentives, no one are willing to continue creation because free riding frustrate their motivation. Under the circumstances, the society will have a gradual narrower public domain and less available resources. On the other hand, copyright damages should deter infringement by make infringers unprofitable. As a result, infringers will choose to obtain license from copyright holders rather than commit infringement. Therefore, copyright damages should both achieve two requirements: sufficient compensation and effective deterrence.
Keywords: Online Copyright Infringement, Monetary Remedy, Statutory Damages, Property Rules, Spillovers (Positive Externality)
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