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Do non-pecuniary damages in copyright infringement have to be proven or can they be assumed by default? A question that concerns many creators of works in the fields of music, literature, photography, the film industry, fine and applied arts, architecture, graphic arts, and so on.
In August 2024, the General Assembly of the Civil and Commercial Chamber of the Supreme Court of Cassation (OSGTC of the SCC) ruled TR 3/2022, which answered three controversial practical questions related to copyright, one of which directly concerns the topic of non-pecuniary damages.
This article examines precisely the third one, which leaves behind an open door for reflections, to which one should respond, relying on the "logic" and case law behind Article 95 of the ZASPP.
Question, item 3 of the TR: When determining fair compensation for copyright infringement, should the non-pecuniary damage suffered as a result of this infringement be proven, or is compensation to the author for non-pecuniary damage always due upon proven copyright infringement?
Answer, item 3 of the TP: In determining fair compensation for copyright infringement must be proven the non-pecuniary damage suffered as a result of this violation. The court may accept as proven damages that are a logical and natural consequence of a copyright infringement.
The problem: In theory and practice, the principle is accepted that in order to be compensated, the damages must be proven (or as stated in para. 1 of Art. 154 of the Civil Procedure Code - Each party is obliged to establish the facts on which it bases its claims or objections.). With this interpretative decision, the Court of Cassation closed, but left the door open to non-pecuniary damages that the court may accept as proven "by implication", provided, however, that the very fact of violationit. The arguments for reasoning in the direction of such a presumption are somewhat justified given the nature of copyright and the existence of the claim under Art. 95a of the Copyright Act, according to which when the claim is proven in terms of merit but not in terms of amount, the plaintiff may claims from 500 to 100,000 BGN or the equivalent of the subject of the infringement at retail prices. The compensation in question is not intended to fully satisfy the injured non-property patrimony of the author, but the regulated minimum threshold of compensation hints at precisely this.
In cases involving copyright infringement, it should be borne in mind that the right in question is composed of a number of non-property rights resulting from the specific relationship of the author to the work and its intangible nature. As we pointed out in another article, copyright and related rights are products of intellectual activity and Factors such as the person's intellect, authorship, and creativity are of paramount importance. The qualities in question imply the investment of significant mental and emotional efforts in the creation of a work, therefore it is logical to take them into account when, pursuant to Art. 52 of the Copyright Act and Art. 95 of the Copyright Act, the court determines the compensation for damages in equity, assessing all the circumstances relevant to the case. In the context of copyright, some of these relevant circumstances are understood as a logical and natural consequence of the infringement.
Therefore, taking into account the special claim under Art. 95a of the Civil Procedure Act, if the author succeed in prove less than the harms, which hardthat it tolerates, but at the heart of his claim is his unique connection to the work and the fact of the violation is proven, the court can be considered proven and such non-property damages that are a logical and natural consequence of copyright infringemento. For other alleged non-pecuniary damages in a claim under Art. 95 of the Copyright Act, a certain conviction of their occurrence should be created, which should not rely solely on the logic and natural connection between the author and the work.
For your convenience, we provide you with a table listing copyright violations, along with examples from practice, and their principle ("logical") negative consequences on the author according to the Rules of Procedure of the Supreme Court of Cassation:
| Violation related to the constituent powers of copyright under Art. 15 of the Copyright Act, specified in the reasons for TR 3/2022 | Examples from real life and judicial practice | "Logical and natural consequence" of the violation according to the Supreme Court of Cassation |
| Copyright infringement | Failure to mention the author's name when using the work; Indicating another name instead of the author's. | Denial of the author's creative skills and efforts; Demotivation and bitterness in the author |
| Violation of the right to disclose the work | Violation of the author's requirement that his work not be distributed among a certain circle of persons or at a certain time; Example: A song is scheduled to be released on date X, but it is released without the author's knowledge. 5 days later | Damaged public assessment and recognition of the author |
| Violation of the right to immutability of the work | Modification of the work (for example, an arrangement of a song to music) by a person to whom it was provided for use, without the right to make any changes | Infringement of the author's dignity and reputation |
| Violation of the right of access to the original of the work | If the work is in the possession of another person and the author should have access to it, but the user does not allow it | Creating outrage and concern in the author |
| Inability to stop use of the work upon change of belief | An author has written an article in which he presents his thesis on a given issue, but subsequently changes his opinion and views. A violation would arise if the author is prevented from requesting that the article be stopped from being distributed and removed. | Creating outrage and concern in the author |
*Non-pecuniary damages are damages that cannot be measured in money and are not related to material losses. They typically include emotional and mental suffering, loss of reputation, violation of honor and dignity, as well as other negative effects on a person's personal or professional life. In the context of copyright infringement, non-pecuniary damages may include pain and suffering associated with the unlawful use of a creative work.
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