演绎作品侵权损害赔偿计算的困境及其应对

The Dilemma of Calculating Compensation for Infringement Damages of Derivative Works and Its Countermeasures

摘要: 演绎作品上存在双重权利，原作者和演绎作者均为演绎作品的著作权人。所以，他人侵犯演绎作品著作权的，原作者和演绎作者均有权向侵权人诉请赔偿。问题在于，根据现行著作权侵权损害赔偿计算规则，法院难以准确区分认定原作者和演绎作者有权获得的赔偿数额。那么，在侵害演绎作品著作权诉讼中，创作者可能不当地多分或少分侵权赔偿。而且，统一标准的缺失赋予了法院较大的自由裁量权。为了合理划定原作者和演绎作者有权获得的赔偿数额，以及统一司法适用标准，应当特别针对演绎作品构建侵权损害赔偿计算标准。首先，应优先保护原作者的派生利益，确保原作者获得的赔偿多于演绎作者。此外，创作者的劳动报酬可以区分反映创作者的智力投入，可以作为损害赔偿计算的依据。由于实际的劳动报酬损失往往难以证明，劳动报酬数额及其损失主要依据行业通行的报酬标准确定。

Abstract: The original author and the derivative author are both the copyright holders of the derivative work. Therefore, if someone infringes the copyright of a derivative work, both the original author and derivative author have the right to sue the infringer for damages. The problem is that according to the current rules for calculating damages for intellectual property infringement, it is difficult for the court to accurately distinguish the amount of compensation to which the original author and the derivative author are entitled. Then, the author may improperly share more or less of the infringement damages in the lawsuit for infringing the copyright of a derivative work. Moreover, the lack of uniform standards gives the court a large discretionary power. In order to reasonably delineate the amount of compensation to which the original author and derivative author are entitled, as well as to unify the standards of judicial application, the standard of calculation of infringement damages should be constructed especially for derivative works. First of all, priority should be given to protecting the interests of the original author and ensuring that the original author receives more compensation than the derivative author. In addition, the labor remuneration of the author can be distinguished to reflect the intellectual input of the author and can be used as the basis for the calculation of damages. As the actual loss of labor compensation is often difficult to prove, the amount of labor compensation and its loss are mainly determined based on the compensation standards prevailing in the industry.