The first issue, examined by the Supreme Cassation Court (“SCC”) in Interpretative Decision No.3/2022 issued on 01.08.2024, concerns a situation where an infringement of copyright has been committed in a country different than the author's country of residence.

The controversial issue, resolved contradictorily in the case law in so far, is how to determine the amount of this compensation - whether according to the market prices in the country of residence of the injured party (the author) or according to the market prices in the country where the infringement has been committed.

SCC settled that the courts should account for the market in the country of the place of infringement, but this is by no means the only criterion for the evaluation of damages.

Other criteria include, for example: the manner, time and place of the unlawful use; the revenue received by the infringer; the circumstances in which the infringement was undertaken, including the form of fault, the infringer's attitude to the act, whether the use continues despite the author's objections, as well as whether the author distinguishes at all between the different licensing territories and the different market conditions associated therewith, as well as whether the author would permit the use of his work by any third party.

SCC emphasized that this type of compensation is in any case “extra-compensatory”, i.e. an amount is awarded in excess of the actual damages suffered, since the purpose of the sanction is to also affect and deter other members of society, as stated in the national law.

Further, in view of other contradictory case law that has emerged, another question has been raised - whether the compensation should include the out-of-court attorney fees incurred in the negotiation process between the author and the infringer.

SCC responded in the affirmative, substantiating that the voluntary and out-of-court dispute resolution actions/negotiations and the attorney costs in that regard were a direct consequence of the copyright violation. They would not have been necessary if the infringement had not been committed, accordingly - the infringer is also liable for them. Naturally, the costs must be reasonable and proportionate and, if they are unreasonably excessive, may be reduced by the court at its discretion when determining the total amount of the compensation due.

The last matter on which SCC ruled is related to the determination of fair compensation for non-pecuniary damages in case of copyright infringement and, in particular, whether the damages must be proved in this case.

SCC upheld that non-pecuniary damages in copyright infringement are also recoverable, but must be proved by the author. The court may only accept as proven damages that are a logical and natural consequence of the infringement.

However, the decision does not set out specific criteria under which such a logical and natural causal link would be presumed to exist. This question will obviously be resolved by the courts on case-by-case basis, i.e. according to the particularities of the individual case reviewed.