Determining Damages Arising from Copyright Infringement

Abstract

This article seeks to clarify legal issues relating to determining damages in copyright infringement, including material damage and spiritual damage. This is a complex area of law, involving both objective and subjective considerations. The author examines the concepts of material damage and spiritual (or moral) damages in detail under Vietnamese law, drawing comparison to their meaning and intempretation in other jurisdictions. The challenges of valuation of material losses are identified and examined - with emphasis on the methods currently used in court practices. As to spiritual or moral damages, the challenges are more complex, being highly subjective to the infringed party, and thus difficult to assess. Other heads of cost - such as lawyer’s fees are also examined, with a view to drawing a distinction between what is reasonable or not - and the reasonableness of the legal fees of a party who is claimed to be infringing the rights of another. Based on the study of Vietnamese laws, laws of certain jurisdictions and hearings in Court practice, this article also makes some proposals on the supplement, clarification of damages to be compensated and bases for evaluation of the infringed copyright. Specific conclusions are made upon the topics of supplementing the definitions of the type of damage to The views expressed in this paper are solely those of the author in his private capacity and do not in any way represent the views of his institution, or any other entity of Vietnam’s Government. include other reasonable costs and damages, specifying in detail the valuation methods of copyright, and finally the establishment of criteria for determining reasonable lawyer’s fees.