Statutory damages

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Statutory damages are a damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine a precise value of the loss suffered by the victim. This could be because calculation of a value is impractical, such as in intellectual property cases where the volume of the infringement cannot be ascertained. It could also be because the nature of the injury is subjective, such as in cases of a violation of a person's rights. The award might serve not only as compensation but also for deterrence, and it is more likely to succeed in serving a deterrence function when the potential defendants are relatively sophisticated parties. [1] Other functions that can be served by statutory damages include reducing administrative costs and clarifying the consequences of violating the law. [1]

At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must usually show that a breach of duty has caused foreseeable loss. To be recognised at law, the loss must involve damage to property, or mental or physical injury; pure economic loss is rarely recognised for the award of damages.

Civil law is a branch of the law. In common law legal systems such as England and Wales, the law of Pakistan and the law of the United States, the term refers to non-criminal law. The law relating to civil wrongs and quasi-contracts is part of the civil law, as is law of property. Civil law may, like criminal law, be divided into substantive law and procedural law. The rights and duties of persons amongst themselves is the primary concern of civil law. It is often suggested that civil proceedings are taken for the purpose of obtaining compensation for injury, and may thus be distinguished from criminal proceedings, whose purpose is to inflict punishment. However, exemplary damages or punitive damages may be awarded in civil proceedings. It was also formerly possible for common informers to sue for a penalty in civil proceedings.

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The amount of statutory damages can be set on a per-incident basis, such as in the Fair Debt Collection Practices Act, which gives statutory damages of up to $1,000 for a violation of its provisions. [2] Amounts could also be set per day, as in acts proscribing human-rights violations which might specify damages of $1,000 per day. [3] The term also applies wherein damages are a multiple of what the legally entitled payment would have been in the matter, which would be typical for copyright or trademark infringement.

Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act (FDCPA), Pub. L. 95-109; 91 Stat. 874, codified as 15 U.S.C. § 1692 –1692p, approved on September 20, 1977 is a consumer protection amendment, establishing legal protection from abusive debt collection practices, to the Consumer Credit Protection Act, as Title VIII of that Act. The statute's stated purposes are: to eliminate abusive practices in the collection of consumer debts, to promote fair debt collection, and to provide consumers with an avenue for disputing and obtaining validation of debt information in order to ensure the information's accuracy. The Act creates guidelines under which debt collectors may conduct business, defines rights of consumers involved with debt collectors, and prescribes penalties and remedies for violations of the Act. It is sometimes used in conjunction with the Fair Credit Reporting Act.

The principle of in pari delicto applies, [4] preventing people from suing others for crimes in which they also participated.

In pari delicto , Latin for "in equal fault ", is a legal term used to indicate that two persons or entities are equally at fault, whether the malfeasance in question is a crime or tort.

Intellectual property

In intellectual property cases (relating to copyright or trademark, for instance), it is often difficult for plaintiffs to determine the exact volume of infringement. Thus, statutory damages are often calculated as a multiple of the price for the use of the property, if the infringer had requested and paid for permission. [5] Other statutes may set a fixed amount for each day the violation occurred, for each violation, work, article, or type of good.

Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. Intellectual property encompasses two types of rights; industrial property rights and copyright. It was not until the 19th century that the term "intellectual property" began to be used, and not until the late 20th century that it became commonplace in the majority of the world.

Copyright is a legal right, existing in many countries, that grants the creator of an original work exclusive rights to determine whether, and under what conditions, this original work may be used by others. This is usually only for a limited time. Copyright is one of two types of intellectual property rights, the other is industrial property rights. The exclusive rights are not absolute but limited by limitations and exceptions to copyright law, including fair use. A major limitation on copyright on ideas is that copyright protects only the original expression of ideas, and not the underlying ideas themselves.

Trademark recognizable sign, design or expression which identifies products or services

A trademark, trade mark, or trade-mark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings.

Lanham Act

The Lanham (Trademark) Act is the primary federal trademark statute of law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising.

Electronic Communications Privacy Act US Act of Congress

The Electronic Communications Privacy Act of 1986 (ECPA) was enacted by the United States Congress to extend restrictions on government wire taps of telephone calls to include transmissions of electronic data by computer, added new provisions prohibiting access to stored electronic communications, i.e., the Stored Communications Act, and added so-called pen trap provisions that permit the tracing of telephone communications . ECPA was an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which was primarily designed to prevent unauthorized government access to private electronic communications. The ECPA has been amended by the Communications Assistance for Law Enforcement Act (CALEA) of 1994, the USA PATRIOT Act (2001), the USA PATRIOT reauthorization acts (2006), and the FISA Amendments Act (2008).

One area of debate between legal and economic scholars that pertains to the quantification of statutory patent damages is whether the court may rely on information that postdates the determined date of the hypothetical negotiation between the patent holder and the alleged infringer. Some commentators argue that the court should rely on postdate information to deter patent infringement and ensure the patent holder's adequate compensation, [9] while others argue that doing so would "give the potential licensee a free option to infringe, which would discourage the potential licensee from promptly entering into a licensing agreement." [10]

Civil rights

California's Unruh Civil Rights Act (Civ. Code, § 51 section 52) provides for minimum damages of $4000 [11] for victims of discrimination under the Americans with Disabilities Act.

See also

Related Research Articles

A license or licence is an official permission or permit to do, use, or own something.

A cease and desist letter is a document sent to an individual or business to stop purportedly illegal activity ("cease") and not to restart it ("desist"). The letter may warn that if the recipient does not discontinue specified conduct, or take certain actions, by deadlines set in the letter, that party may be sued. When issued by a public authority, a cease and desist letter, being "a warning of impending judicial enforcement", is most appropriately called a "cease and desist order".

Infringement refers to the violation of a law or a right.

Intellectual property rights (IPRs) have been acknowledged and protected in the People's Republic of China since the 1980s. The People's Republic of China has acceded to the major international conventions on protection of rights to intellectual property. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark, copyright, and patent. This has led to the creation of a comprehensive legal framework to protect both local and foreign intellectual property. Despite this, copyright violations are common in the PRC, The American Chamber of Commerce in China surveyed over 500 of its members doing business in China regarding IPR for its 2016 China Business Climate Survey Report, and found that IPR enforcement is improving, but significant challenges still remain. The results show that the laws in place exceed their actual enforcement, with patent protection receiving the highest approval rate, while protection of trade secrets lags far behind.

A copyright is the legal protection extended to the owner of the rights in an original work. Original work refers to every production in the literary, scientific, and artistic domains. The Intellectual Property Office (IPOPHL) is the leading agency responsible for handling the registration and conflict resolution of intellectual property rights and to enforce the copyright laws. IPOPHL was created by virtue of Republic Act No. 8293 or the Intellectual Property Code of the Philippines which took effect on January 1, 1998, under the presidency of Fidel V. Ramos.

Japanese patent law is based on the first-to-file principle and is mainly given force by the Patent Act of Japan. Article 2 defines an invention as "the highly advanced creation of technical ideas utilizing the law of nature".

The following outline is provided as an overview of and topical guide to intellectual property:

An intellectual property infringement is the infringement or violation of an intellectual property right. There are several types of intellectual property rights, such as copyrights, patents, and trademarks. Therefore, an intellectual property infringement may for instance be one of the following:

The Prioritizing Resources and Organization for Intellectual Property Act of 2008 is a United States law that increases both civil and criminal penalties for trademark, patent and copyright infringement. The law also establishes a new executive branch office, the Office of the United States Intellectual Property Enforcement Representative (USIPER).

The copyright law of the United States is intended to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death. In the United States, any music composed before January 1, 1923, is generally considered public domain.

Copyright infringement

Copyright infringement is the use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.

Iran is a member of the WIPO since 2001 and has acceded to several WIPO intellectual property treaties. Iran joined the Convention for the Protection of Industrial Property in 1959. In December 2003 Iran became a party to the Madrid Agreement and the Madrid Protocol for the International Registration of Marks. In 2005 Iran joined the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, which ensures the protection of geographical names associated with products. As at February 2008 Iran had yet to accede to The Hague Agreement for the Protection of Industrial Designs.

Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees. Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence civil legal proceedings against a party which infringes its registered trademark. In the United States, the Trademark Counterfeiting Act of 1984 criminalized the intentional trade in counterfeit goods and services.

<i>Copyright Modernization Act</i>

An Act to amend the Copyright Act, also known as Bill C-11 or the Copyright Modernization Act, was introduced in the House of Commons of Canada on September 29, 2011 by Industry Minister Christian Paradis. It was virtually identical to the government's previous attempt to amend the Copyright Act, Bill C-32. Despite receiving unanimous opposition from all other parties, the Conservative Party of Canada was able to pass the bill due to their majority government. The bill received Royal Assent on June 29, 2012 becoming the first update to the Copyright Act since 1997.

Digital Theft Deterrence and Copyright Damages Improvement Act of 1999

The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is a United States law that increased the possible civil penalties for copyright infringement.

Intellectual property in India refers to the patents, copyrights and other intangible assets in India.

References

  1. 1 2 Bray, Samuel L. (2012). "Announcing Remedies". Cornell Law Review. 97: 753. SSRN   1967184  Lock-green.svg.
  2. ↑ "Fair Debt Collection Practices Act, Section $813(a)(2)(A)" (PDF). Retrieved June 2, 2010.
  3. ↑ "Public Act No. 06-43". State of Connecticut. 8 May 2006. Retrieved 7 March 2011.
  4. ↑ "in pari delicto". Law.com. Retrieved 7 March 2011.
  5. 1 2 "Which kind of damages are available in IP disputes?". World Intellectual Property Organization. Archived from the original on 2013-11-03. Retrieved 7 March 2011.
  6. ↑ "Circular 92, Title 17, Section 504.c.1". United States Copyright office. October 2009. Retrieved 7 March 2011.
  7. ↑ "15 U.S.C. 1117. Recovery for violation of rights". Cornell University. Retrieved 29 November 2011.
  8. ↑ "TITLE 18 > PART I > CHAPTER 119 > § 2520". Cornell University Law School. Retrieved 7 March 2011.
  9. ↑ Michael K. Dunbar & Roman L. Weil, Ex Ante Versus Ex Post Damages Calculations, in LITIGATION SERVICES HANDBOOK: THE ROLE OF THE FINANCIAL EXPERT § 5.4.b.i (Roman L. Weil, Daniel G. Lentz & David P. Hoffman eds., Wiley 5th ed. 2012).
  10. ↑ J. Gregory Sidak, How Relevant Is Justice Cardozo's "Book of Wisdom" to Patent Damages?, 16 COLUMBIA SCI. & TECH. L. REV. at 28 (forthcoming 2016), https://www.criterioneconomics.com/justice-cardozos-book-of-wisdom-and-patent-damages.html.
  11. ↑ "Unintentional discrimination yields unexpected winfall". Nixon Peabody. Retrieved 7 March 2011.

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