----- Original Message -----

From: Roth, Johanna G

To: judgejiang@china.com

Sent: Sunday, April 13, 2008 12:29 PM

Subject: Question About Damage Amount

Dear Judge Jiang Zhipei,

I am writing a paper for a course at Tulane Law School comparing Chinese moral rights laws to United States moral rights laws.  I just wanted to clarify the damage amount in Article 48 of the Copyright Law of the People's Republic of China.  Can the judge award damages not exceeding RMB 500,000 or RMB 500?   

Thank you,

Johanna

Johanna G. Roth

Senior Notes & Comments Editor

Tulane Journal of International & Comparative Law

JD Candidate, 2009

Tulane Law School

3915 St. Charles Ave., Apt. 713

New Orleans, LA 70115

Dear Johanna,

Thanks for your email.

Article 48 of Copyright Law of PRC provides that “anyone who infringes upon the copyright or a right related to the copyright shall pay compensation for the actual losses suffered by the right owner, or where the actual losses are difficult to calculate, pay compensation to the amount of the unlawful gains of the infringer.  The compensation shall include the reasonable expenses that the right owner has paid for putting a stop to the infringement.  Where the actual losses of the right owner or the unlawful gains of the infringer cannot be determined, the People’s Court shall, in light of the circumstances of the infringement, decide on a compensation amounting to not more than RMB500,000.”

There the judge shall award a compensation no more than RMB500,000 when the owner’s actual losses or the infringer’s illegal gains cannot be determined. That is to say that a judge could not apply it when the owner’s actual losses or the infringer’s illegal gains could be determined in a case and he shall conclude a compensation valued at more than 500,000 yuan according to the evidence in a case.

I hope you find the above information helpful.

Best Regards,

Judge Jiang