The third volume. The change and development of the intellectual property system of intellectual property rights.




Release time:2016-10-25

The object of intellectual property is expanding:

The object of intellectual property rights, that is, the object of protection of the intellectual property system, refers to the spiritual products created by people in the fields of knowledge forms such as science, technology, and culture, that is, knowledge products. The intellectual property system is a system of rights based on the protection of different intellectual products. From the history of the development of the intellectual property system, it can be seen that the scope of the object of intellectual property protection has shown a trend of gradual expansion. 

The rapid development of network technology has brought human society into the information age. The high-speed network transmission speed and the global liberalization of the information dissemination market have brought new problems in the field of copyright. After experiencing the era of analog copyright and electronic copyright, mankind has entered The era of network copyright. Every information technology revolution has brought a corresponding response to the copyright system, and then produced the emergence of new objects protected by copyright. Network technology not only has a certain impact on the protection of digital works such as databases and multimedia, but also raises a new issue for the protection of traditional works, that is, the so-called protection of network works.

In cyberspace (In cyberspace), the nature of the cache, the network transmission of the copyright owner, the identification of the author's identity, the legal liability of the ISP and how to identify the place of infringement cannot be solved only by expanding the interpretation of the traditional copyright law. When China's copyright law was revised in 2001, the particularity of the above problems was taken into account, so that the right of information network dissemination was clearly defined as a right content of copyright. The rapid development of the Internet has brought about the question of whether domain names should be included in the scope of intellectual property protection. Domain name is a technical means of network positioning. Each domain name is composed of specific words, numbers and symbols. It does not have the problem of which right it belongs to. It can only become the object of the right. The domain name holder registers the domain name by concluding a contract with the domain name registration service provider and exercising the right of claim in the contract. After the registration is successful, the domain name holder obtains the exclusive right to analyze and use the domain name, this exclusive right is gradually being recognized as an intellectual property right.

The rapid development of analytical chemistry and biological engineering technology has made it possible to explore the mysteries of human beings from the microscopic field. The development of new technologies such as the cracking and industrial application of biological genes, the sequencing of the human genome and the mapping of gene maps, and the deciphering of functional genes of special populations have brought institutional impact to the existing legal system, which will inevitably lead to legal responses. With the emergence of new technologies and new materials, while some traditional rights have changed (such as copyright discussed above), some new forms of intellectual property rights have emerged that have gradually been incorporated into the legal protection system of intellectual property rights, such as database rights, genetic rights, and trade secret rights. At the same time, taking into account the interests of developing countries, the international community's discussion of traditional knowledge, folklore, and geographical indications also makes the intellectual property system begin to pay attention to the legal protection of these knowledge products.

It can be predicted that in the era of knowledge economy with science and technology as the first factor of production, intellectual property rights will inevitably expand the protection object with the continuous production of information, and the object of intellectual property rights will be in the trend of continuous expansion. 


Intellectual property themes are diversified:

The subject of intellectual property rights is the owner of the interests of knowledge products, and the subject system of intellectual property rights presents a diversified development trend in modern society, from a single subject to multiple subjects, from a specific subject to an unspecified subject, from the protection of individuals to a certain range of group interests. The emergence of the phenomenon of diversification of rights subjects has prompted the intellectual property system to pay more attention to the legal protection of different interests of multiple rights subjects.

The significant sign of the diversified development of intellectual property subjects is to provide intellectual property protection for traditional knowledge such as communities and ethnic communities. Traditional knowledge refers to literary, artistic or scientific works, performances, inventions, scientific discoveries, designs, marks, names and symbols, undisclosed information, and all innovations and creations based on tradition arising from intellectual activities in the fields of industry, science, literature and art. Universal respect for human rights has led to the protection of traditional knowledge under the intellectual property system under modern legal systems. From the perspective of classic intellectual property protection, the core elements of traditional knowledge, that is, intangible elements, are already in the public domain and belong to objects that everyone can use freely. Importantly, these elements often become the basis on which new creative results are generated, thus giving the subject of the use of these elements the object of private rights."Intellectual Property". Given the importance of these elements in the public domain, the initial policy orientation of the international community was simply to preserve them. However, with the use of modern science and technology, the potential for using these common heritages to develop new results with intellectual property rights is increasing, which gives people a more positive choice-actively "use" rather than passively "Preserve" these heritages. With this awareness, we will find that at least some elements of these common heritage are no longer just relics left by our ancestors that require us to continue to preserve, but "resources" with great development value ". In this case, "everyone is free to use" has become a fact that is questionable and has reason to change, and it is legitimate to give intellectual property protection to traditional knowledge.

The group characteristics of the subject of intellectual property rights are manifested in the confirmation of the subject of rights to knowledge products such as folklore and geographical indications. The emergence of folk literature and art has the characteristics of a group, which is often manifested as a cultural phenomenon shared by one or several nationalities, populations, or one or several regions. It is a collective creation of an individual or group of the nation, population, or region., And passed on from generation to generation in the process of historical development. The people of each historical unit are constantly processing and modifying on the basis of the folk literature and art handed down from the previous unit, and integrate the wisdom and creative ideas of this generation. As far as a certain historical unit is concerned, its modification and processing of the art form handed down from the previous unit is a process of deduction and arrangement from the perspective of modern copyright law. It is through this continuous collation and interpretation that this historical unit inherits the pre-cultural phenomenon, that is, the deposition of the whole pre-cultural phenomenon: folk literature and art. There is no doubt that the subject of the rights of folklore belongs to the group that produces this art. In the field of trademark law, geographical indications areThe TRIPS Agreement proposes commercial marks that should be protected, and the subjects protected by geographical indications are all groups involved in production in a particular region, which shows that the subjects of geographical indications also have the characteristics of groups.

On the other hand, my country's intellectual property legislation has some institutional rules that regulate multiple subjects, such as the provisions on cooperative works and job works in the Copyright Law, the rules on collective trademarks and geographical indications, names of origin in the Trademark Law, and the patent law Provisions on job inventions and shared patents, etc. The development trend of the diversification of intellectual property subjects suggests that we should pay attention to the protection of the demands of different stakeholders in the process of intellectual property legislation, law enforcement and judicial. 


The evolution of intellectual property management models:

Intellectual property management system with intellectual property rights in modern society plays an increasingly important role and is increasingly valued by countries. The management mode of intellectual property rights can be divided into two levels: one is the general term for the national administrative organs to examine, supervise, coordinate and serve the acquisition and utilization of intellectual property rights in accordance with the law, which is one of the signs that the intellectual property system is different from other property rights systems; the other level refers to the decision-making, planning, organization, control and leadership of the creation, utilization, transfer and use of intellectual property rights by the right holders in the micro field, especially at the enterprise level, so as to cultivate the ability of knowledge innovation, so as to create wealth, improve competitiveness and promote the management activities and processes of organizational development. These two levels of intellectual property management are not juxtaposed concepts, in fact"Management" is understood differently, but both are important.

For the administration of intellectual property rights, it is not only a practical problem, but also needs to be studied in theory. The existence of such management activities is not only influenced by the history of traditional operating mechanisms, but also a reflection of the characteristics of intellectual property itself. At the same time, it reflects the state's intervention in the field of civil activities and the government's guidance of scientific and technological progress and economic development. The administrative system of intellectual property is an important part of the national strategy of intellectual property, and it is very important to build a reasonable and efficient administrative system for intellectual property to encourage innovation.

The overlapping of China's current intellectual property administrative system is not conducive to the implementation of the intellectual property system and the full play of the role of the intellectual property system. Due to historical reasons, the various fields of intellectual property currently belong to nearly ten departments. Among them, the State Intellectual Property Office is in charge of national patent work, and its subordinate patent office is responsible for the examination of patents, utility models, appearance designs, and integrated circuit layout designs; The State Administration for Industry and Commerce is in charge of the National Trademark Office, and the National Trademark Office is the trademark review authorization agency specified in the the People's Republic of China Trademark Law; the State Forestry Administration and the Ministry of Agriculture are responsible for the examination and protection of new plant varieties, the Forestry Administration is responsible for the protection of woody plants, and the Ministry of Agriculture is responsible for other plant protection; the National copyright Administration is responsible for copyright work, and there is a copyright protection center under it, which is responsible for copyright registration and other work; the National Defense Patent Office is responsible for confidential patent examination; and the State Bureau of quality and Technical Supervision protects the mark of origin. Modern administration believes that the basic activities of administrative organizations are mainly around policy formulation and policy implementation. Whether it is the process of policy formulation or the process of policy implementation, in order to achieve the purpose of the policy smoothly, it is necessary to continuously coordinate and integrate opinions within the administrative organization, and the institutions that undertake the comprehensive coordination function are in a crucial central position in the operation of the entire administrative system. In the face of the rapid development of international protection of intellectual property rights, we need to establish a unified and powerful administrative organ of comprehensive coordination of intellectual property rights.

From a deeper level, the overlapping of institutions will cause conflicts and omissions of power, and will inevitably lead to the coexistence of conflicts of rights and lack of rights management. For example, the conflict between design and trademark, the conflict between copyright and trademark right, and the conflict between copyright and design can not be solved under the coordination of a unified organization, which also lays a hidden danger for the establishment of market economy standard order. We can refer to the practice of most countries, and the central government will set up an intellectual property administrative agency to at least manage the approval, authorization and review of industrial property rights. At the same time, the establishment of the corresponding trade-related intellectual property management institutions to reflect China's interests in international trade.Actively participate in diplomatic activities to promote the reform of the international intellectual property system.


the evolution of the philosophy of intellectual property law:

The philosophy of intellectual property law, like the intellectual property system, is constantly changing with the development of social productivity and production relations. In this process of evolution, in addition to analyzing and studying the existing traditional civil law theory and legal philosophy, and sorting out the development and changes of intellectual property rights, it should also be noted that the formation and development of the modern intellectual property system is accompanied by the industrial revolution and The establishment of capitalist production relations gradually formed, and the traditional Roman law did not take intellectual property as the object of investigation. Moreover, the development of intellectual property itself has also experienced fromTherefore, it is necessary to ask the relevant legal principles from the formation process of the basic rules of intellectual property rights and the changes of intellectual property rights in different societies and different times of the same society. this is the prerequisite and fundamental guarantee for the establishment of a sound and reasonable intellectual property system.

From intellectual products to intellectual property rights, it is not only a legal issue of system design and standard application, but also a theoretical issue with profound theoretical connotation. Such as the basis for knowledge to become the object of property rights, the state of possession of intellectual products and the form of rights, the social function and objectives of the intellectual property system, etc., are all objects of philosophical theoretical research on intellectual property law. In this field, modern thinkers have put forward their own theory of property rights, which has constructed the corresponding theoretical basis for the intellectual property system.

The basic theoretical research of intellectual property rights lags behind the requirements of legislation and justice in general. In recent years, the philosophical problems of intellectual property law discussed by scholars mainly focus on the following aspects: the legal interpretation of intellectual property law;The basis for intervention in intellectual property rights under "private law autonomy"; the conflict and interaction between intellectual property rights and basic human rights; the reconstruction of the theoretical basis and institutional system of intangible property rights in contemporary society; the noumenon, subject and object of intellectual property rights; the scale and standard of legislative consideration of intellectual property law; the philosophical theoretical basis of intellectual property rights and the legitimacy of intellectual property rights. In the research method, scholars began to introduce analysis tools such as economics and legal sociology to explain the legal system of intellectual property rights from a multidisciplinary perspective. The following is a brief description of the changes in the philosophy of intellectual property law.

Western scholars first look for a reasonable basis for the intellectual property system from the perspective of natural law.That is, the new idea is a natural form of property, whose unique nature deserves the protection of the state. Locke's theory of labor property has always been regarded as a strong support for intellectual property rights. In Locke's view, property rights are an inherent right that no one can deprive, and the basis of this right is labor. In Locke's "labor-property" discourse, there are two points worth noting: first, it is clearly declared that labor belongs to the laborer; second, it defines property as a kind of "materialized" labor. This is the logical starting point of Locke's analysis of property. Locke's theory of labor property provides a reasonable explanation for the existence of intellectual property as a private right, that is, when a person improves on what was previously or creates something that did not exist before, he has a right to the fruits of his labor.

Another traditional legal philosophy to interpret intellectual property is the personality theory of property and property rights, which is based on the development of personality and the need to establish property rights, and personality is given legitimacy as self-expression."The personality of intellectual property is justified by providing the only or uniquely appropriate mechanism for the realization of the individual, for the expression of the individual, and for the dignity and recognition of the subject of the individual." Wilhelm von Humboldt, the classical German liberal thinker, as well as Kant and Hegel, have enriched and developed the theory of intellectual property personality, providing legal philosophical support for the legitimacy of the intellectual property system.

In addition, the application of the theory of balance of interests in the field of intellectual property rights has become a practical philosophical idea for building an intellectual property system. Intellectual property law itself is designed as a system to balance the monopoly interests of intellectual property owners with the public interests of society, aiming to achieve an ideal balance between the social interests of stimulating knowledge creation and the demand for knowledge products. The maintenance of the balance between the private rights and public interests of intellectual property subjects is the cornerstone of the construction of the intellectual property legal system. By balancing the interests of intellectual property rights and the public, intellectual property law promotes the realization of fair and just social values to the maximum extent. The principle of balance of interests has also become the value goal of intellectual property law. In line with this goal, intellectual property law fully considers the unstable state of conflict of interest between the right holder and the public, and coordinates the relationship between the two, so as to achieve the most reasonable allocation of social resources. Therefore, this is also the key to encourage knowledge creation and promote the public's use of knowledge products. 

Source:WeIP intellectual property ecosystem