In addition, in cases of the infringement upon software copyrights, the infringer sued may usually make a defense that it is the reasonable use of the software involved in the case or it is the infringement of the staff individually. In the event that the infringer indeed needs to use the software involved in the case for its business, and he/it cannot offer the evidences to prove that it is the reasonable use of the software involved in the case or is the infringement of the staff individually or to prove that he/it has the legal authorization from the copyright holder or has the legal sources of the product involved in the case, usually the court will not accept such defenses of the infringer.
【作者简介】
仲奕，律师，上海市润和律师事务所合伙人，党支部书记。上海市律师协会知识产权及涉外法律委员会委员。
【注释】 It was verified in the second instance that the software the Defendant bought in 2003 was not the software involved in the Case, whose version was lower than the software involved in the Case.
It was verified that the software involved in the Case had been taken off the market during the first instance.
Article 25 of the Regulations on the Protection of Computer Software provides that the amount of compensation for infringement of software copyright shall be determined according to the provisions of Article 48 of the Copyright Law of the People’s Republic of China.
Article 48 of the Copyright Law of the People’s Republic of China provides that the infringer shall, when having infringed upon the copyright or the rights related to copyright, make a compensation on the basis of the right holder’s actual losses; where the actual losses are difficult to be calculated, the compensation may be made on the basis of the infringer’s illegal gains. The amount of compensation shall also include the reasonable expenses paid by the right holder for stopping the infringement. Where the right holder’s actual losses or the infringer’s illegal gains cannot be determined, the people’s court shall, on the basis of the seriousness of the infringement, adjudicate a compensation of RMB 500,000 or less.
Article 24 of the Interpretation of the Supreme People’s Court Concerning the Application of Laws in the Trial of Civil Disputes over Copyright provides that the actual losses of the copyright holder may be calculated according to the arithmetic product of the reduced sales volume of the reproductions incurred by the infringement or the sales volume of the infringing reproductions and the unit profits of the reproductions of the copyright holder. If it is difficult to determine the reduction of the sales volume, it shall be determined by the market sales volume of the infringing reproductions.
