Some aspects in calculating the amount of damages for violation of related rights

Abstract

The article discusses the methodology for calculating the amount of material damage that is inflicted on the owners of related rights to distribute television programs (television companies and individuals who have acquired exclusive and non-exclusive property rights to distribute television programs). The legislative framework for economic examinations in the field of intellectual property is analyzed. The main cases of calculating the amount of damages depending on the category of the owner of related rights to broadcast TV channels are given. The calculation of the amount of material damage for the violation of related property rights to broadcast television channels is carried out for the period proven, as part of investigative actions, the time of violation. Usually, economic expertise in the field of intellectual property is preceded by a number of technical examinations, which are carried out by experts in the field of telecommunications in order to confirm the fact of illegal broadcasting of TV channels.

According to paragraph 26 of the National Standard No 4 ‘Evaluation of Intellectual Property Rights’, the amount of damages for illegal use of an object of intellectual property rights is determined as of the valuation date using the valuation procedure for accumulating profit (income) that the subject of the intellectual property right did not receive and / or the licensee, as a result of the illegal use of the object of intellectual property rights and, based on the volume of production and / or sale of counterfeit products.

Now, in the field of broadcasting, the main media groups enter into licensing agreements for broadcasting with legal entities that represent their interests and conclude sublicensing agreements on their own behalf. They are of two types – with the transfer of an exclusive license to distribute programs using DVB-C / MITPIC / MMDS / TELESELO / analog network, IPTV, OTT and DTH and a non-exclusive license to distribute programs using DVB-C / MITPIC / MMDS / TELESELO / analog network, IPTV, OTT and DTH. In the case of the transfer of exclusive property rights to calculate the amount of material damage, the author considers it expedient to obtain information from the investigation (by sending a corresponding petition) under similar sub-licensing agreements with other providers, which are ‘similar’ to the so-called company-violator. Consequently, the amount of material damage caused to the owner of related property rights, as a result of an illegal broadcast, is calculated as an arithmetic average of the amounts of similar sublicensing contracts, that is, using the procedure of income accumulation. If a legal entity applies to law enforcement agencies that own non-exclusive proprietary rights to distribute programs using DVB-C / MITPIC / MMDS / TELESELO / analog network, IPTV, OTT and DTH, then Art. 1108 of the Civil Code of Ukraine ‘A nonexclusive license does not exclude the possibility for the licensor to use an object of intellectual property rights in an area that is limited by this license and to issue licenses to others to use this object in this area’. So, according to the author, a legal entity that owns non-exclusive property rights does not bear material damage.