Estados Unidos de América
Derecho de autor y derechos conexos
10. Please explain whether civil penalties under Japanese law serve to deter infringement and to adequately compensate copyright holders, given the concerns raised by software companies with regard to the high costs of bringing civil actions, the difficult evidentiary burdens facing copyright owners and the low level of damages and cost reimbursement awards.
The concept of civil penalties does not exist in Japanese legislations. The Civil Code stipulates that, in principle, a sufferer (copyright owner) has the burden of proof with regard to the amount of damage when claiming compensation. However, as it is not easy to prove the amount of damage caused by infringement of copyright, the Japanese Copyright Law has an exceptional provision that turns such burden of proof to the infringer to protect copyright owners. Article 114 of the Copyright Law stipulates as follows: (i)In the case where an owner of copyright, right of publication or neighbouring rights claims compensation for damages from a person who has infringed intentionally or negligently any of these rights, the profits, if any, obtained by the infringer from that infringement shall be presumed to be the amount of damages suffered by such an owner. (ii)The owners of copyright and neighbouring rights may claim compensation for damages from a person who has infringed intentionally or negligently their copyright or neighbouring rights, the amount of damages suffered being that corresponding to the ordinary amount of money which would be received by them through the exercise of these rights. (iii)The provision of the preceding paragraph shall not prejudice any claim to compensation for damages in excess of the amount mentioned therein. In such case, the court may take into consideration the absence of any bad faith or gross negligence on the part of the infringer in fixing the amount of damages.