Compensation for Infringement of Exclusive Rights: Main Development Trends

Abstract

The purpose of this paper is to examine the trends in the development of compensation as a measure of liability for infringement of exclusive rights, under the influence of its practical application. Judicial statistics indicate that claims for compensation by copyright holders are the most common way to protect exclusive rights. This study analyzes legal approaches developed through a number of decisions of the Constitutional Court of Russia and the Plenum of the Supreme Court, No. 10, as well as their impact on judicial practice, particularly that of the Intellectual Property Court. As a result of the study, a trend has been identified indicating a decrease in the number of claims based on calculating compensation twice the cost of the goods in favor of claims for compensation twice the cost of use. However, due to the lack of a developed market, copyright holders face difficulties in proving the value of their rights. This, in turn, creates significant challenges for courts in assessing the evidence presented regarding this value. Based on the study conducted, an assessment of the effectiveness of existing and modern legal approaches to the compensation mechanism in the system of civil liability measures was given. The clarifications from higher courts encourage courts to more thoroughly analyze the factual circumstances of a particular dispute, which in turn leads to more complicated compensation cases. As a result, the compensation mechanism has become a more complex way to protect exclusive rights compared to claims for damages, as the legislator has lowered the standards of proof for these claims. Current proposals to amend the legislation governing the application of compensation from the perspective of difficulties faced by law enforcement practice are also considered.