After composing Monday's blog post on damages for moral prejudice in Spain and elsewhere, I came across an article by Marc Simon Altaba titled Take It or Leave It--The Unclear Situation of Moral Damage Claims in Spanish Intellectual Property Law, 47 IIC 178 (2016). The article was published in February 2016, just before the CJEU's Liffers decision, and it discusses the case law and commentary leading up to that decision. Mr. Altaba's article discusses claims for moral prejudice in the context of copyright law and, if I am reading it correctly, views such claims largely as a means of redressing infringement of authors' moral rights (droits morals). If this view is correct, it raises questions (in my mind, at least) about the applicability of the concept of moral prejudice at all in cases involving patents or other industrial property. Anyway, if you're interested in the subject, the article is worth your time. Here is the abstract:
Following the adoption of European Directive 2004/48/EC on the Enforcement of Intellectual Property Rights, a number of questions arose regarding the different methods of damage calculation proposed in its Art. 13. In particular, the transposition of its contents into the Spanish Intellectual Property Law initiated a debate among national scholars regarding the possibility or lack thereof to claim moral damages using any of the criteria given. The question arrived at the national Supreme Court this year, in a case of unauthorised use of an audio-visual work. The Court asked for a clarification from the Court of Justice of the European Union on a matter that might have important effects on the determination of the damages resulting from an infraction of intellectual property rights. This opinion seeks to offer a detailed perspective on the evolution of the case in the Spanish judicial system and the possible alternatives and consequences that a future European ruling might produce.