18 March 2016Copyright

CJEU takes moral high ground in copyright row

Parties asserting copyright claims can also seek compensation for “moral prejudice” suffered from the infringement, the Court of Justice of the European Union (CJEU) has ruled.

Writer and director Christian Liffers was seeking damages for copyright infringement and moral prejudice suffered when a Spanish broadcaster aired clips from his 2006 documentary “Dos Patrias Cuba y la Noche” (“Two Homelands: Cuba and the Night”).

The documentary focuses on six stories of homosexual and transsexual inhabitants of Cuba.

Mandarina, an audiovisual company, produced a documentary on child prostitution in Cuba containing unauthorised clips from Liffers’ film. The documentary aired on Spanish television channel Telecinco, which is owned by broadcaster Mediaset.

Liffers sued Mandarina and Mediaset at the Spanish Commercial Court claiming copyright infringement and moral harm. In awarding damages to Liffers, the court awarded €3,370 ($3,800), calculated on the basis of how much Liffers would have charged for a royalty to use the clips, and a further €10,000 for the personal harm suffered as a result of the infringement.

But on appeal, the Provincial Court of Madrid reduced the infringement damages to €962. It awarded nothing for moral harm because the method of calculating damages for the infringement was not mutually exclusive from the one used to determine compensation for moral harm.

Following an appeal from Liffers, the Spanish Supreme Court referred the case to the CJEU, asking whether a victim of infringement who has requested a damages award under EU Directive 2004/48/EC based on a hypothetical royalty request can “also claim damages for the moral prejudice suffered”.

The CJEU said that a party can seek full damages for a claim of infringement and any moral prejudice suffered. It further stipulated that the calculation of any damages awarded on “hypothetical royalties alone” only covers material infringement.

“Setting the amount of damages due as a lump sum on the basis of hypothetical royalties alone covers only the material damage suffered by the IP right owner concerned; consequently, for the purposes of providing compensation in full, that right owner must be able to seek ... compensation for any moral prejudice which he has suffered,” the court concluded.

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9 June 2016   The Court of Justice of the European Union has ruled that compensation paid to rights owners for private copying should not be funded through state budgets if it cannot be guaranteed that the payment is fair.