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Remedy for Copyright Infringement

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In regard to copyright infringement, you may, through the court civil procedures, seek an injunctive order against the infringement, demand damages, demand restitution for unjust enrichment, or demand measures for the recovery of reputation. Further, you may lodge a criminal complaint and seek criminal procedure.

Injunctive Relief

There are varieties of injunctive relief against copyright infringement (Copyright Law Article 112), and the action below may be taken.

  1. Demand that the alleged infringer stop such infringement
  2. Demand that the person who acts in a way likely to infringe on the copyright at issue take preventive measures or
  3. Demand destruction of the products constituting or resulting from such infringement, the elimination of equipment mainly used for such infringement, and any other measures necessary to prevent such infringement

Of these options, it is only possible to demand (3) with (1) or (2). As for injunctive relief, no intent or negligence on the side of the infringer is required to exercise the right to demand these measures.

In the event that the copyright infringements have actually occurred and if not addressed, irrecoverable damages could possibly be incurred therefrom, the right holder may before trial petition the court to issue a preliminary injunction order to stop such infringement.

Demanding Damages

You may demand damages from the person who manufactures, sells, or imports counterfeits or pirated goods infringing on the copyright at issue. While it is necessary to prove various facts and issues in order to demand damages, since such activities to provide evidence might more often than not involve significant difficulties, Copyright Law makes it easier for the right holder to bring suit for damages against the infringer by the provisions regarding the calculation of damages set forth in the statute (Copyright Law Article 114). However, as no provision exists in Copyright Law for the presumption of the infringer's intent or negligence relating to such infringements, a prerequisite for demanding damages, the right holder must demonstrate such intent or negligence of the infringer.

(1) Provision 1 for Calculating Damages (Remedy under Copyright Law Article 114, Paragraph 1)

In the copyright infringement damages case, where the infringer has assigned the goods resulting from such infringements, the sum of damages suffered by the copyright owner can be presumably reached by multiplying the number of such infringing goods assigned by the infringer by the sum of profit per unit of the good which the owner itself could have sold had there been no such infringements, which is not to exceed the amount corresponding to the ability of the owner to exercise its right. However, if any circumstances should have prevented the copyright owner from selling all or a part of the assigned numbers of goods, the sum of damages would be calculated by deducting the amount corresponding to the said numbers (Article 114, Paragraph 1 of Copyright Law).

"Sum of Damages" = "Number of Assignments, etc. by Infringer" × "Per Unit Profit of Right Holder" (the calculated result is not to exceed the amount corresponding to the copyright owner's ability to exercise its design right) - "Amount Corresponding to the Number Unsold under the Circumstances where the Right Holder could not sell"

For instance, assuming that the copyright infringer has sold 10,000 pirated goods and that the copyright holder's per unit profit amounts to 500 yen, then damages of 5,000,000 yen could be deemed to have impacted the right holder. However, if the copyholder's ability to sell its goods is not up to this presumption, or given the existence of alternative goods or the infringer's business promotion efforts, these assumed damages sum could be reduced.

(2) Provision 2 for Calculating Damages (Remedy under Copyright Law Article 114, Paragraph 2)

If the infringer enjoys profits due to the infringement of the copyright, the sum of the infringer's profits is presumed to be equivalent to the damages suffered by the right holder. Damages might be calculated based upon this presumption. Yet, these presumed damages may be rebutted by the infringer's demonstration that actual damages incurred by the copyright owner are less.

"Sum of Damages"* = "Profits Gained by Infringer"

For instance, if the copyright infringer has made a profit of 1,000,000 yen by selling 1,000 pirated goods protected under the copyright at issue, the copyright owner is basically presumed to have suffered damages for that sum.

(3) Provision 3 for Calculating Damages (Remedy under Copyright Law Article 114, Paragraph 3)

The copyright holder may demand from the copyright infringer the amount equivalent to the license fees for its copyright as damages it has suffered. Given that this Paragraph 3 is construed to set by statute the minimum amount of damages, the infringer cannot reduce the amount of damages by claiming that actual damages are less. Accordingly, considering the difficulty of the proof involved, it may sometimes be practical to demand your damages on the grounds of Paragraph 3.

"Damages Sum" = "Amount Equivalent to License Fees"

e.g.) "Number of Assignments made by Infringer" × "Per Unit License Fees of Right Holder"

"Sales Amount of Infringer" × "License Fees Rate"

For instance, if the design infringer makes a monthly profit of 10,000,000 yen from the sale of pirated copyright goods, assuming that the prevalent license fee rate of the copyright at issue is 9% of the sales, the copyright owner can be presumed to have suffered monthly damages of 900,000 yen.

Restitution of Unjust Enrichment

In a case of copyright infringement, you might want to demand the restitution of unjust enrichment.

Measures for Recovery of Reputation

The copyright owner may demand measures to recover the damaged honor or reputation from the person who has damaged the copyright owner's authorship moral rights (Copyright Law Article 115). For instance, recovery measures such as an announcement of apology may be demanded.

Criminal Prosecution

As copyright infringement is punishable by 3 years or less imprisonment or by fines of 3,000,000 yen or less in principle (from January 2005, imprisonment will be extended to 5 years or less, and fines will be increased to 5,000,000 yen or less, and imprisonment and fines can be dually imposed), criminal prosecution may be involved in a copyright infringement case (Copyright Law Article 119). Infringement of a copyright is an offense subject to prosecution upon complaint by the copyright owners, etc. in principle. As for corporations, there is a so-called dual liability provision, which provides that when an employee commits an offense of infringement of a copyright in connection with the corporation's business, a fine is imposed on the corporation in addition to the penalty on the infringer (Copyright Law Article 119).

Division in Charge

Office for Intellectual Property Right Infringement and International Trade, Manufacturing Industries Bureau
Tel: +81-3-3501-1701
Fax: +81-3-3501-6588

 
Ministry of Economy, Trade and Industry
1-3-1 Kasumigaseki, Chiyoda-ku, Tokyo 100-8901, Japan Tel: +81-(0)3-3501-1511
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