Thanks to the boom of the internet era and the rapid development of digital technology, literary and artistic works are known worldwide. At the same time, creative works increase in terms of quantity and quality, raising concerns about copyright protection worldwide. While applicable copyright laws are strictly governed by national legislation and international treaties, many questions still arise about protecting the works, especially on digital platforms. Therefore, the 21st Century Copyright Law 101 series aims to summarise some of the introductory provisions of international copyright law and then analyse specific aspects of protecting works under copyright law, thus trying to answer about copyright protection in both traditional and digital markets.
This series is divided into the following chapters:
21st Century Copyright Law 101: Compensation for Damage Caused by Copyright Infringement
21st Century Copyright Law 101: Responsibilities of Online-sharing Platform Operators in Copyright Protection
As mentioned in the previous chapters, copyright infringement is increasingly essential today. However, what is the appropriate compensation value based on copyright infringement, and what are the difficulties of the copyright holder when claiming this? This chapter will analyse these questions based on Vietnamese and European law.
Plaintiff’s Burden of Proof when Claiming Damages for Infringement of Copyright
Under the law of Vietnam or the European Union, the burden of proof always belongs to the petitioners. In a case for damages due to infringement of copyright, the plaintiff must prove at least two of the following: (i) they have the right to sue, which means that the petitioners must prove they are the lawful owners of the object of the lawsuit; and (ii) there is damage resulting from infringement of the copyright of the person being sued.
According to the Vietnamese Civil Procedure Code provisions, when filing a lawsuit, the petitioner must attach documents and evidence proving that their legitimate right and interests have been infringed (Article 189(5) of the Vietnamese Civil Procedure Code). Therefore, the plaintiffs must submit documents and evidence to show that their rights and interests have been violated and determine the defendant’s identity.
In Europe, these two burdens of proof are also required for initial proceedings. In the case Bastei Lübbe GmbH & Co. KG v Michael Strotzer about requesting compensation for copyright infringement through online file sharing to initiate this lawsuit, Bastei Lübbe was obliged to prove the copyright infringement by Michael Strotzer. It is stated in section  of this ruling that “in fact, according to the case law of the Bundesgerichtshof (Federal Court of Justice), as interpreted by the referring court, it is for the applicant to allege and prove the infringement of copyright...” (Case C-149/17, Bastei Lübbe GmbH & Co. KG V Michael Strotzer). CJEU also concurs with this initial burden of proof of the German Court.
Vietnam and Europe are stuck between the principle of copyright protection and protecting personal data. To sue a copyright infringement, especially in the cyber environment, collecting the personal data of the infringer is a big challenge for petitioners. Vietnamese law does not have a specific provision binding the obligation to provide personal information. Due to this, the online operating platforms may or may not have to provide the personal information of users on those platforms when requested by the Court to serve the investigation and trial of the case. In the Europe Union, asking online sharing platforms to provide users’ data on these platforms faces many difficulties because of the General Data Protection Regulation. This regulation leads to difficulty for the copyright holder when the author or owner cannot find the real identity of the virtual accounts because of personal data protection.
Obligation to Prove Actual Damages Caused by Infringement of Copyright
Most importantly, the plaintiff must prove that actual damage has occurred from the infringement of the defendant’s copyright and related rights. After accepting the case, the Judge begins the careful evaluation of the evidence and collects the evidence. At this stage, the criteria for settling the case for damages are given: (1) There is actual damage that occurred; (2) there is an illegal act; (3) there is a causal relationship between the actual damage that occurred and illegal acts; and (4) there must be an error, whether it is unintentional or intentional. During the procedure, the plaintiff must prove the actual damage and the cause-and-effect relationship between that damage and the defendant’s illegal acts.
Moral and material damage are two types of actual damages on copyright infringement. The moral damage includes loss of honour, dignity, prestige, reputation and other mental losses caused to authors of literary, artistic or scientific works or performers. Material damage includes loss of property, decrease in income, profit, loss of business opportunity, and reasonable cost to prevent and remedy the damage (Article 205 IP Law, Vietnam).
According to the Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the Enforcement of Intellectual Property Rights (the Enforcement Directive), the infringer must pay the appropriate damages to the right-holder for the actual prejudice suffered by them due to the infringement (Article 13 of the Enforcement Directive). Furthermore, this article also lists several types of damages, such as lost profits of the injured party or unfair profits made by the infringer or moral prejudice. Although this article is not as clearly defined as Article 205 of the Vietnam IP Law, it can be seen that the damage caused by the infringement of copyright and related rights under the Enforcement Directive is also classified as material damage and moral prejudice. In addition, the Enforcement Directive also clearly stipulates the burden of proof in Article 6 about evidence, whereby the claimant must present reasonably available evidence sufficient to support their claims. Therefore, in the case of a claim for damages due to copyright infringement, proving that the damage has actually occurred is still a fundamental principle the petitioner needs to meet.
The Amount of Compensation for Damage Caused by Infringement of Copyright
Regarding the moral damage caused by copyright infringement, the legal documents of Vietnam stipulate the level of compensation for this type of damage running from 5 million VND to 50 million VND (equivalent from 185 € to 1.855 €) (Article 205(2) of Vietnam’s Intellectual Property Law). Is this an unreasonable compensation level when the value of copyright-protected works increases and the spiritual value is increasingly focused? Intellectual property works are made up of the own creation of the author. However, the moral compensation provided by Vietnamese law is too low compared to the actual damage. The level of moral damage is different for each individual, even if it comes from the same infringement. Hence, more appropriate regulation is needed to regulate this issue.
At the EU level, there is no specific regulation to determine the specific amount of compensation for infringing moral prejudice. In the Recital (26) and Article 13(1)(a) of the Enforcement Directive, moral prejudice is also a factor to take into account all relevant aspects. This rule only acknowledges that moral prejudice should also be considered when determining the amount of compensation. However, there are no specific criteria to how the compensation is determined. Under national law, such as in Spain, the amount of compensation will be determined at the choice of the injured party based on one of the criteria of negative economic effects and moral prejudice. In particular, where there is moral prejudice, this shall be compensated even if no economic prejudice has been proven (Article 140 of the Spanish Law on Intellectual Property).
Therefore, while Vietnam imposes a minimum and maximum compensation for all mental damages in intellectual property infringements, European law leaves open regulations to assess the most appropriate for each specific damage level. This regulation is consistent with the fact that with the same infringement, the impact it has on each individual is different.
In terms of material damages, the grounds for the Vietnamese Court to determine material damage are straightforward. There are 4 ways to calculate compensation for damage caused by infringement of intellectual property rights in general: (1) The plaintiff’s actual damages and the illegal profit earned by the infringer; (2) presenting by the plaintiff and in accordance with the current law; (3) presumptive fee; and (4) determining by the Court or statutory damages.
In practice, when calculating damages by the plaintiff way, there are many cases where the plaintiffs can only use speculative measures to calculate their actual damages. Meanwhile, Vietnamese law requires objective evidence. In this situation, the movie Co Ba Saigon/The Tailor by director Ngo Thanh Van was infringed on copyright and related rights on November 13, 2017 (VietNamNet News, 2017). When this film was showing in cinemas across Vietnam, N.V.Tr bought a ticket and watched it at a cinema. At the time, he used his smartphone to stream the movie live on his Facebook page as he watched it at the cinema. After around 30 minutes of the live stream, the number of viewers was 5,700 concurrent viewers and the total number of views until before deletion was nearly 200,000. Afteat, according to the film director’s estimate, the film’s loss was calculated as 60,000 VND (which was the ticket price) multiplied by 5700 (the total number of viewers at the time of live streaming), which is 324,000,000 VND (equivalent to 12.673 €).
The problem is that the film director can prove that 5700 people watched this live stream, but she could not prove how many people in the total of 5700 viewers will spend money to buy tickets to watch this film at the cinema. Therefore, this loss is just speculation and if there is a lawsuit against the Court, there are no grounds to accept the entire amount mentioned above.
Similar to moral damage, material damage is limited when the compensation is determined by “statutory damages”. According to the provisions of Article 205(1)(d) Vietnam IP Law and the guidance at Point c, Subsection 2.1, Section I, Part B of the Joint Circular 02/2008, Vietnam, the Court can determine the compensation level for material damage. However, it must be from 5,000,000 VND to 500,000,000 VND (equivalent from 185 € to 18.550 €). Furthermore, many objects of intellectual property rights are infringed in a dispute; the general level of compensation for all such objects shall not exceed 500,000,000 VND (Subsection 2.1, Section I, Part B of the Joint Circular 02/2008, Vietnam). This regulation is entirely inconsistent with reality when the value of products protected by intellectual property is increasingly respected and of high value.
This chapter gives general information about how to claim copyright infringement compensation and how to determine the amount of this compensation. As for the burden of proof when filing a lawsuit, the issue raised is how one could determine the defendant’s identity, such as name and residential address, especially for online sharing platforms. At the same time, the boundary between copyright and personal data protection is also a controversial issue in many different courts. In addition, the obligation to prove moral damage and material damage is both a prerequisite for the settlement of a damages case and carries the burden on the shoulders of right-holders of copyright and related rights. Regarding determining compensation for damage, while Vietnam limits the amount of this damage to the range from 5,000,000 VND to 50,000,000 VND (equivalent from 185 € to 1.855 €) for moral damage, European law does not provide any provisions to limit it. Specifying a minimum and maximum amount for this type of damage is not suitable for practice when each person’s moral value and level of moral injury are different. Regarding material damage, the compensation can be determined based on the plaintiff’s actual damages, the illegal profit earned by the respondent, the hypothetical royalty fee, and the lawyer cost.
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