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The Provincial Court of Madrid has, in a judgment dated May 25, 2018 ruled on what legal entities need to prove  to be able to claim non-pecuniary damage in cases involving infringement of their intellectual property. The proceedings involved a dispute over exploitation in Spain of the documentary “BLOOD MONEY: The value of a life,” which shows certain practices of the abortion industry in the United States and how it has evolved from the controversial case of Roe versus Wade to the present day. The American production company sued when it learned that two Spanish companies were selling it on DVD and exhibiting it in movie theaters without its consent.

Specifically, the claimant, in its capacity as the owner of the exploitation rights, started proceedings seeking a declaratory judgment of its rights (reproduction and distribution), cessation, withdrawal of product, and compensation for consequential and non-pecuniary damage. The first instance judgment ruled in favor of all the intellectual property actions, and only one of the respondent Spanish companies appealed, claiming that it should not have been ordered to pay compensation of €2,000 for non-pecuniary damage when the occurrence of this harm was unproven.

The court upheld the appeal and explained that article 140.2 Revised Text of the Spanish Copyright Act dealing with compensation for non-pecuniary harm did not mean that the commission of copyright infringement should necessarily be presumed to have given rise to non-pecuniary damage. To claim compensation for non-pecuniary damage, it is necessary to prove a significant degree of distress to the aggrieved party in the infringement or that the infringement had in some way interfered with its reputation and standing.

The court went on to say that where non-pecuniary damage depend on a value judgment in the context of the matter being litigated, there is no requirement for specific evidence and instead the doctrine of “ex re ipsa loquitur” applies. Under this doctrine, it is sufficient to show the existence of circumstances that could have resulted in suffering on the part of the claimant and that, also, there is a rational basis for considering that those circumstances could have caused a certain non-pecuniary harm.  In the proceedings in question, the court ruled that simply proving unauthorized use of the documentary did not suffice for it to be held to be detrimental to the repute of the American production company and, therefore, it overturned the award of compensation for non-pecuniary harm.


By Nora Oyarzabal y María Pascual

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