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Second Series | Introduction to Intellectual Property 2
The concept of intellectual property law and the object of adjustment:
Intellectual property law is a general term for the legal norms of various social relations arising from the process of adjusting the creation, use, protection and management of intellectual property rights.
From the concept of intellectual property law, it can be seen that intellectual property law mainly regulates four aspects of legal relations.
First, the legal relationship of intellectual property ownership. This mainly refers to the relationship between the creator of knowledge products and the subject of intellectual property rights. The ownership of the rights of knowledge products arising from the relationship between position and entrustment is adjusted by the corresponding laws. For example, the patent law of our country stipulates that the patent application right of service invention creation belongs to the unit.
Second, the legal relationship in the use of intellectual property rights. This refers to the relationship that occurs as a result of the transfer of intellectual property between the intellectual property owner and the user of the intellectual product. Including the transfer of intellectual property rights, licensing, inheritance, etc.
Third, the legal relationship in the protection of intellectual property rights. This mainly refers to the relationship between intellectual property rights and infringers. On the one hand, the law provides for sanctions for direct and indirect infringements of intellectual property rights, and on the other hand, it also provides remedies to the infringed in accordance with the law.
Fourth, the legal relationship in the management of intellectual property rights. This mainly refers to the relationship between intellectual property administrative organs and the creators of intellectual products, the subjects of intellectual property rights and the users of intellectual products. For example, in the case of trademarks, it involves the examination and approval of registered trademarks, objections and invalidation of registered trademarks, and the adjudication of trademark disputes.
characteristics of the legal system of intellectual property rights:
The history of the emergence and development of the worldwide intellectual property system can be roughly divided into three stages. In the first stage, in the feudal society, especially from the beginning of the capitalist society, the trademark, patent, copyright and other systems began to emerge and develop. But then the intellectual property system was more of a national phenomenon. This is mainly manifested in"Regional" principle. The second stage is marked by the Paris Convention for the Protection of Industrial Property and the three principles of regionality, national treatment and priority established by it, and the process of internationalization of the intellectual property system has begun. The third stage is marked by the signing and entry into force of the TRIPS Agreement of WTO (including its predecessor GATT), and the development of the intellectual property system in the world has entered a new stage, that is, the post-TRIPS stage. Looking at the development of the intellectual property system in the world, the following characteristics can be summarized:
First, the intellectual property system is intrinsically and closely related to the development of science and technology, economic society, especially economic globalization. For example, as far as the patent system is concerned, the more perfect patent system in the modern sense can be said to have begun with the Industrial Revolution in England. At the beginning of the second phase of the development of the patent systemAt the end of the 19th century and the beginning of the 20th century, it was the first round of globalization proposed by many scholars at home and abroad. The third stage of the development of the patent system coincides with the occurrence of a new scientific and technological revolution with information technology, network technology, and biotechnology as the main content, the rise of the knowledge economy, and a new round of economic globalization. This is not just a historical coincidence.
Second, the design of intellectual property systems in various countries is closely related to the development level and development needs of their own productive forces. From a practical point of view, the purpose of establishing and improving the intellectual property system in any country is not only to recognize the inventor's natural right to his creative intellectual achievements, but to closely link it with the country's development reality and future development needs. Together, this can be verified from the history of intellectual property development in major countries in the world. If we only regard intellectual property rights as natural human rights, it is difficult to understand why the United States and Japan have not fully protected intellectual property rights for a long time, and why multinational companies regard intellectual property rights as market competition."Weight", "chips" to use. As a property incentive system, intellectual property rights encourage the production of knowledge products by means of property rights incentives. In contemporary intellectual property practice, intellectual property has become an increasingly important government policy tool and market competition tool.
Third, the intellectual property system shows the trend of integration and internationalization. in the GATTBefore the "Uruguay Round" negotiations, although the intellectual property protection system has been generally established domestically and internationally, there are generally the following problems: First, the intellectual property system of many countries, especially developing countries, is not very sound, and the level of protection is low. Second, the number of parties to many intellectual property conventions is too small, and the relevant treaties lack effective institutions to ensure their implementation, and there is no coordination mechanism between the conventions. Since the World Trade Organization replaced the GATT in 1994, the international protection system of intellectual property rights has entered a new era of post-TRIPS. As a result of the formation of the Agreement on Intellectual Property Rights Related to Trade (including Trade in Counterfeit Goods) and placing this agreement under the jurisdiction of the World Trade Organization, the intellectual property system has shown a trend of integration and internationalization.
Fourth, intellectual property law is a system of legal norms that is constantly innovated and revised more frequently. Modernization and integration are the trend of intellectual property legislation. The former is motivated by the development of modern science and technology, and the latter is subject to the formation of the new international economic order. Intellectual property law has been 300 or 400 years since its emergence. It was born on the basis of scientific and technological revolution. Due to the change of scientific and technological revolution, its institutional history itself is a process of interaction and mutual promotion between scientific and technological innovation and institutional innovation. Intellectual property law should not only realize legislative modernization through system innovation, but also establish a new intellectual property protection mechanism on a global scale, that is, realize legislative integration through system reform. Thanks to the effective operation of the World Trade Organization and the above-mentioned conventions, intellectual property protection has now become an integral part of the international economic and trade system. Internationally, the intellectual property system has entered a new stage of unified standards. In this context, national legislators haveBased on the above situation, since the 1970 s, the intellectual property laws of various countries have been revised frequently, which makes the intellectual property legal system in a dynamic process of continuous coordination and revision. Therefore, it can be said that the modern intellectual property law is a very large legal system, And is in the process of continuous development and reform.
The history and current situation of intellectual property legislation in China:
The initiation of intellectual property legislation in China began in the late Qing Dynasty. After the Opium War, the Western powers hoped that China could protect their interests in China. In the Sino-British Treaty on Trade and Shipping (1902), the Sino-US Treaty on Trade and Shipping (1903), the Sino-Japanese Treaty on Trade and Shipping (1903) and other unequal treaties provide for the protection of trademarks and copyrights. Since then, the Qing government has formulated the "Revitalization of Craft Awards", "Trademark Registration Pilot Regulations" and "Qing Copyright Law", which have not been fully implemented due to the collapse of the Qing Dynasty. During the period of the Beiyang government and the national government, some intellectual property laws were enacted, but they failed to play an effective role because of the political turmoil.
After the founding of New China, the old Kuomintang legal system was abolished and a socialist legal system, including intellectual property law, was established. but due"Cultural Revolution" and other historical reasons, the legal system of intellectual property rights could not be established. After the Third Plenary Session of the Eleventh Central Committee in 1978, the focus of the work of the party and the government shifted to economic construction, and implemented the policy of invigorating the economy internally and opening up to the outside world. In order to develop the economy, attract foreign investment, encourage technological innovation and application, and meet the needs of reform and opening up, China's intellectual property legislation is in full swing. With the great attention of the central government, the legislative department has fully listened to useful suggestions from all walks of life, learned from successful international experience, overcome many difficulties, and successively formulated the the People's Republic of China Trademark Law, the the People's Republic of China Patent Law, and the the People's Republic of China Copyright Law. "And related supporting regulations. At the same time, China has participated in a series of international conventions on the protection of intellectual property rights, such as the Convention on the Establishment of the World intellectual property Organization, the Paris Convention for the Protection of Industrial property Rights, and the Madrid Agreement on the International Registration of Marks.
In the early 1990 s, China established the goal of establishing a socialist market economic system. In order to meet the needs of the development of China's market economy and the protection of intellectual property rights, China has successively revised the the People's Republic of China Patent Law and the the People's Republic of China Trademark Law, formulated the the People's Republic of China Law against Unfair Competition, the the People's Republic of China Regulations on Customs Protection of Intellectual Property Rights and other laws and regulations, and adopted a series of decisions to punish intellectual property crimes, it has also acceded to a number of important international intellectual property treaties, such as the Berne Convention for the Protection of Literary and Artistic Works, the Universal Copyright Convention and the Patent Cooperation Treaty, which have expanded the scope of intellectual property protection and raised the level of intellectual property protection.
In order to join the World Trade Organization, China has actively fulfilled its international obligations to protect intellectual property rights, in accordance withWTO requirements, a comprehensive clean-up and revision of intellectual property laws and regulations, the patent law of the People's Republic of China (the second amendment in 2000 and the third amendment in 2008), the copyright law of the People's Republic of China (the first amendment in 2001 and the second amendment in 2010), the trademark law of the People's Republic of China (the second amendment in 2001 and the third amendment in 2013), and the regulations on the protection of computer software of the People's Republic of China (the first amendment in 2011 and the second amendment in 2013) have been amended successively.
After years of development, my country's intellectual property laws and regulations system has gradually improved, and the level of law enforcement has been continuously improved; the ownership of intellectual property rights has grown rapidly, and the benefits have become increasingly apparent; the ability of market entities to use intellectual property rights has gradually improved; international exchanges in the field of intellectual property rights have increased, and international influence Gradually increase. The establishment and implementation of the intellectual property system has standardized the market order, stimulated invention and cultural creation, promoted opening up to the outside world and the introduction of knowledge resources, and played an important role in economic and social development. However, on the whole, China's intellectual property system is still imperfect, the level and ownership of independent intellectual property rights can not meet the needs of economic and social development, the public's awareness of intellectual property rights is still weak, the ability of market entities to use intellectual property rights is not strong, the phenomenon of infringement of intellectual property rights is still relatively prominent, intellectual property abuse occurs from time to time, and the construction of intellectual property service support system and talent team lags behind, the role of the intellectual property system in promoting economic and social development has not yet been fully developed.
our legal system of intellectual property rights:
according to our current legislationChina's intellectual property legal system mainly includes the following aspects:
(I) copyright legal system
The laws and regulations related to copyright that have been formulated and promulgated in China include: the the People's Republic of China copyright Law, the regulations on the implementation of the the People's Republic of China copyright Law, the provisions on the implementation of the International copyright regulations, the regulations on the Collective Administration of copyright, the regulations on the Protection of computer Software, the measures for the Registration of computer Software copyright, and the regulations on the Protection of the right of Information Network dissemination.
(II) patent law system
The laws and regulations related to patent rights that have been formulated and promulgated in my country include: "the People's Republic of China Patent Law", "the People's Republic of China Patent Law Implementation Rules" and "Patent Agency Regulations.
(III) legal system of trademark right
The laws and regulations related to trademark rights that have been formulated and promulgated in my country include: "the People's Republic of China Trademark Law", "Regulations for the Implementation of the the People's Republic of China Trademark Law", "Regulations on the Administration of Special Signs" and "Regulations on the Protection of Olympic Signs.
(IV) anti-unfair competition legal system
This is a special law for the act of improperly damaging the intellectual property rights of others in production and business activities, which is supplemented and applied when there are no special provisions or incomplete provisions in various intellectual property systems. Our countryThe Anti-Unfair Competition Law of the People's Republic of China was enacted in 1993.
In addition, the international conventions concluded or acceded to by our country have legal effect in our country and are an important part of our country's intellectual property legal system. Chapter VIII of the General Principles of the People's Republic of China Civil Law stipulates that international treaties concluded and acceded to by China shall prevail in the application of foreign-related civil legal relations. Therefore, in addition to the provisions on which China has declared its reservations, international treaties on intellectual property rights to which China has acceded and concluded have priority, mainly as follows: the Paris Convention for the Protection of Industrial Property, the Madrid Agreement for the International Registration of Marks, the Berne Convention for the Protection of Literary and Artistic Works, the Patent Cooperation Treaty, the Agreement on the International Classification of Goods and Services for the Registration of Marks, and the Agreement on Trade-Related Aspects of Intellectual Property Rights.
Source:WeIP intellectual property ecosystem