Noneconomic harm, so
Professor Cotter, includes (among other things) pain and suffering, emotional harm
and distress, and loss of reputation. While it is difficult to quantify such
harm, it is not impossible to do so. Particularly, if the plaintiff is a
corporation which was confronted with the infringement of its intellectual
property rights. In such circumstances one can illustrate loss of earnings
caused by the infringement with reference to the firm’s financial statements. Often
balance sheets of companies are used for illustrative purposes in such
circumstances and the scenario one looks at is how corporate performance was
affected by the noneconomic harm.
If however the injured
party is not a company, but an individual, the situation is bit more
complicated. How can one quantify the emotional distress of a writer who saw
her work demolished?
In this article Thomas
Cotter is less interested in offering a ‘cooking recipe’ how to calculate
damages for such noneconomic harm, but more in discussing the overarching
principles guiding damage awards for noneconomic harm.
He starts off by looking
at U.S. case law and illustrates at a series of examples how, when and why Courts
offered damage awards for noneconomic harm. I personally found it insightful to
learn that a city cannot just simply demolish the sculptures of an artist and
had to compensate the artist for such wrong doing. I was also interested to
learn that a real estate developer cannot just wipe off graffiti art. Such doing,
so the Court found, constituted an act of deformation and is contrary to the US
copyright act. The Court found it essential ‘…to prevent any intentional
distortion, mutilation, or other modification . . . which would be prejudicial
to his or her honor or reputation,’. The graffiti artist subsequently received
150 K US Dollars per work. (Castillo v. G&M Realty L.P.)
Across the Atlantic, the
IPR Enforcement Directive equally foresees for damages for noneconomic harm,
which it describes as ‘moral prejudice.’
‘Moral prejudice’ can include reputational harm and mental distress. Cotter
describes several instances when European Courts have awarded damages under this
premise. In particular in ‘Liffers v. Producciones Mandarina SL’, ¶ 17 (CJEU
Mar. 17, 2016) it was recognized that moral prejudice, such as damage to the
reputation of the author of a work, constitutes . . . a component of the
prejudice actually suffered by the rightholder. In Liffers, the Court of
Justice of the E.U. ruled that the plaintiff was allowed to obtain a royalty
rate, which should be calculated in the form of a hypothetical royalty rate and
that Liffers should also be entitled to a compensation for a violation of moral
rights.
Factors that may guide
the determination of damage awards are the ongoing significance of the infringement
to the author and his reputation, the scale of the infringement, the intention
of the infringer, the standing of the work and the existence of other means to
undo the harm.
According to Cotter, similar
considerations would be of relevance for a violation of the general right to
personality, as would (under appropriate circumstances) the need to deter
future violations.
In this article Cotter
discusses however not only noneconomic harm in the context of copyright. He
also addresses damage awards for noneconomic harm for patents and trademarks.
The article takes an interesting
spin when the legitimacy of IP is not justified under the mainstream utilitarian
argument. Rather than argue that IP is needed as an incentive to invest in
innovation,’ Cotter argues with reference to Kant that intellectual property
rights are justified because they enable IP owners to ‘expand freedom and
autonomy’ and hence ‘pursue the ends they set for themselves.’
IP conceptualized as
freedom rather than an incentive mechanism inspires to take this research piece
to the next step and not only address the question of damage awards for
noneconomic harm, but more broadly to study what other governance mechanisms for
IP would be afforded if one defined the purpose of IP from a public interest
rather than a mere mercantilist perspective.
No comments:
Post a Comment