Part I... Introduction to Intellectual Property 1.




Release time:2016-10-25

the concept of intellectual property rights:

"Intellectual property" is a foreign language, English "Intellectual Property" and German "Geistiges Eigentum" can be translated as "intellectual property rights" and "intellectual property rights". Chinese scholars have used the concept of "intellectual achievement right" for a long time. However, since the promulgation of the general principles of the People's Republic of China civil law in 1986, the term "intellectual property" has been widely used in China's legislation, judicature, administrative law enforcement and legal research, and is accepted by most people.

On the definition of intellectual property rights, there are mainly.There are two kinds of "enumerationism" and "generalization. "Enumerationism" delimits the scope of the system of rights by systematically enumerating the objects of rights protected, thus clarifying the concept of intellectual property rights. So far, most national legal monographs, laws and international treaties have adopted the definition of enumerationism. The "generalist" approach, through the abstract description of the object of protection, uses the method of genus plus species difference to give the definition of intellectual property rights.

All the above definitions are scientific and reasonable, but the perspective of the summary is different, and there is no essential difference. Intellectual property is an evolving concept, and its connotation and extension are expanding and deepening with the development of social economy and culture. We believe that under the modern legal system, intellectual property, as a private right, is also a policy tool for a country to adjust the interests of different subjects in the field of knowledge creation and application. With regard to the understanding of intellectual property rights, we should first make it clear that intellectual property rights are civil rights based on intellectual creation and creative achievements, which is generally recognized as a basic right under the condition of market economy. Secondly, intellectual property is a policy tool to adjust the interests of society based on the creation and application of knowledge products. The intellectual property system is essentially a solution."Knowledge product" as a resource ownership and benefit sharing issues, is a kind of incentive and adjustment of the interests of the balance mechanism. "The intellectual property system reasonably determines people's rights to knowledge and other information, adjusts people's interest relationships in the process of creating and using knowledge and information, stimulates innovation, and promotes economic development and social progress". Based on this, we define intellectual property as the general term for the exclusive civil rights legally enjoyed by the subject of rights for intellectual creations and industrial and commercial marks and other intellectual products.


the scope of intellectual property rights:

The scope of intellectual property rights is the concretization of the concept of intellectual property rights, indicating which rights belong to intellectual property rights by enumerating them.

(I) the narrow scope of intellectual property rights

Intellectual property in the narrow sense usually includes three parts: copyright (including neighboring rights), trademark rights and patent rights. Generally speaking, it can be divided into two categories: one is copyright, including neighboring rights; the other is industrial property rights, mainly refers to trademark rights and patent rights.

(II) the broad scope of intellectual property rights There are two major international conventions that define the scope of intellectual property rights.

Convention Establishing the World Intellectual Property Organization

Article 2 of the 21 articles of the 1967 Convention Establishing the World Intellectual Property Organization defines the scope of intellectual property rights in enumerated form, including the following rights:

(1) Rights relating to literary, artistic and scientific works. This mainly refers to copyright or copyright.

(2) Rights relating to performances, sound recordings and broadcasts by performing artists. This mainly refers to the general so-called neighboring rights.

(3) Rights relating to inventions in all fields of human creative activity. This mainly refers to the rights of patented inventions, utility models and non-patented inventions.

(4) Rights relating to scientific discoveries.

(5) Rights relating to industrial designs.

(6) Rights relating to trade marks, service marks, trade names and other commercial marks.

(7) Rights relating to the prevention of unfair competition.

(8) All other rights arising from intellectual creative activity in the fields of industry, science, literature and art.

AsIn June 2014, 187 member states ratified the Convention, and China formally acceded to the Convention on June 3, 1980. Article 16 of this Convention clearly stipulates that "no reservation shall be made to this Convention". Therefore, it can be considered that the scope of intellectual property rights defined in this Convention has been accepted by most countries in the world, including China.

Agreement on Trade-Related Aspects of Intellectual Property Rights

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is one of the World Trade Organization documents and also forms part of the World Trade Organization Agreement. Article 1 of Part I of the Agreement delineates the scope of trade-related intellectual property rights:

(1) Copyright and Neighboring Rights.

(2) Trademark rights.

(3) the right of geographical indication.

(4) Industrial design rights.

(5) Patent rights.

(6) integrated circuit layout design (topology) right.

(7) Exclusive rights to undisclosed information. Mainly refers to the right to trade secrets. There are other definitions of the scope of intellectual property rights in a broad sense. For example, the 1992 Tokyo Congress of the International Association for the Protection of Industrial Property (AIPPI) divided intellectual property rights into "creative achievement rights" and "identification marking rights. The former category includes: invention patent rights, integrated circuit rights, new plant variety rights, Know-How rights (also known as "technical secret" rights), industrial design rights, copyrights (copyrights), and software rights. The latter category includes: trademark rights, trade name rights (also known as "manufacturer's secret" rights), and other identifying marking rights related to the suppression of unfair competition.

Our countryThe scope of intellectual property rights stipulated in the General principles of the People's Republic of China Civil Law promulgated in 1986 includes copyright, patent right, trademark right, discovery right, invention right and other rights of scientific and technological achievements. its scope is roughly the same as that defined in the Convention on the Establishment of the World intellectual property Organization.


Characteristics of Intellectual Property:

The basic characteristic of intellectual property is to explain the legal character of intellectual property as a civil right, so as to distinguish it from other civil rights. Although the elaboration of domestic scholars is different, it can be summarized as intactness, specificity, regionality and timeliness, which are relative to other property rights, especially ownership.

(I) invisibility

The intactness of intellectual property refers to the intactness of the intellectual product as the object of intellectual property. whether intellectual creation or industrial and commercial marks are"Invisible. The intangible referred to here is relative to tangible objects such as movable and immovable property, I .e., it does not occupy a certain amount of space. The intangible nature of knowledge products determines that the intellectual property owner does not have the physical possession control of the object, the use of the entity loss and the de facto disposition of the entity form and the legal disposition of the physical delivery. The object of the real right is a physical object, the real right person has the power of actual possession and other control of his property, the power of the physical fact disposition of the thing, and the power of the delivery of the thing to complete the legal disposition.

(II) proprietary

The exclusivity of intellectual property rights means that intellectual property rights have the characteristics of monopoly, exclusivity and exclusivity. Without legal provisions or the permission of the intellectual property owner, no one may use the intellectual achievements of other people's intellectual property rights without authorization, otherwise it will constitute infringement. This exclusive right, like property ownership, is a kind of right to the world, absolute right, but it is different from the exclusive nature of property ownership. First of all, the exclusivity of intellectual property rights is the exclusion of non-proprietary people from illegal imitation, counterfeiting or plagiarism of knowledge products, while the exclusivity of ownership is the exclusion of non-authorized people from the illegal occupation, obstruction and destruction of their property. Secondly, the exclusivity of intellectual property rights is relative or subject to certain restrictions. Most countries have stipulated the reasonable use of intellectual property rights, statutory licensing, compulsory licensing and other systems in intellectual property legislation. The purpose is to limit the intellectual property rights with monopoly nature to a reasonable range, so as to promote the progress of science and technology and the prosperity of literature and art. In addition, intellectual property rights are also limited by time and region, and the exclusive right of the intellectual property owner is only effective in a certain region and within a certain period of time, that is, the regionality and timeliness of intellectual property rights mentioned later. The exclusive nature of property ownership is absolute, and the owner exercises his right to the property without allowing others to interfere or requiring the active assistance of others.

(III) regionality

The territorial nature of intellectual property rights means that intellectual property rights are only legally effective and protected by law in the countries and regions where they are granted or confirmed. Intellectual property rights originally appeared in the form of feudal benefactor privileges, so that such rights could only be exercised within the territorial jurisdiction of the monarch. After the feudal society was replaced by capitalist society and socialist society, the nature of intellectual property rights has undergone a fundamental change and become a legal right, but its regional characteristics have been retained.At the end of the 19th century, with the development of science and technology and international trade, the international trade of intellectual property rights also developed, and there was a huge contradiction between the international demand for intellectual products and the geographical restrictions of intellectual property rights. In order to solve this contradiction, countries have signed a series of international treaties on the protection of intellectual property rights, so that the intellectual property rights within the scope of the parties to the convention have universal. At the same time, in order to achieve the goal of economic integration, some countries and regions are also trying to establish a common intellectual property system, such as the European Union, so that intellectual property rights exceed the geographical restrictions of a country. However, the regional nature of intellectual property rights has not changed. On the one hand, the conclusion of international conventions only makes the extraterritorial effect of intellectual property rights possible, and whether and how to protect it is still determined by the domestic laws of each country; on the other hand, the common The establishment of the intellectual property system is currently only applicable within a limited regional scope and is not universal.

(IV) timeliness

The timeliness of intellectual property rights means that intellectual property rights are only protected by law within the time limit prescribed by law. Once the validity period prescribed by law is exceeded, the right will be lost in accordance with the law, and related knowledge products will enter the public domain and become the common wealth of the whole society. Of course, some intellectual property rights can in fact be used in perpetuity, such as the exclusive right to register a trademark, as long as the trademark owner has been renewed registration can always enjoy the exclusive right to use the trademark. The time limit of intellectual property rights is a principle generally adopted by intellectual property legislation and international conventions on intellectual property rights in various countries in the world. Its purpose is to promote the development of science, culture and art. On the one hand, it is necessary to protect the rights of intellectual achievements to mobilize people to create The enthusiasm of intellectual achievements, on the other hand, also takes into account the interests of the public, and provides guarantees for the public to use human intellectual achievements rationally. Therefore, the regulation of the protection period of intellectual property rights is to coordinate the interests of intellectual property rights and the public. 

In addition to the several characteristics summarized above, some scholars have summarized other characteristics of intellectual property rights, such as the legal confirmation of intellectual property rights, the replicability of intellectual property rights, and the dual attributes of property rights and personal rights in intellectual property content. These characteristics all explain the legal character of intellectual property rights to a certain extent. It should be pointed out that the characteristics of intellectual property rights are derived from the invisibility of their objects, and there are some exceptions, especially for some new types of intellectual property rights. For example, the right to trade secrets, the same trade secrets, as long as legally owned, can be owned by two or more people, respectively.

Source:WeIP intellectual property ecosystem