First of all, the invisibility of objects
The intangibility of object is the most essential feature of intellectual property, which is the fundamental difference between intellectual property and tangible property. To some extent, the following characteristics of intellectual property rights-relative monopoly, limited legal effect in time and space and uncertainty of the scope of rights protection-are rooted in this. The object of intellectual property is knowledge product, which is usually the product of creative intellectual labor and its essence is a kind of information. This kind of information is in the "monopoly field", which enables the monopolist to obtain some legal market monopoly right, and obtains economic benefits by virtue of this right, preventing others from competing with themselves. Contemporary western scholars divide property into movable property, immovable property and intellectual property. They believe that the creation of intellectual labor is called "knowledge" property because it is related to all kinds of information. People combine these information with tangible carriers and make a lot of copies in different places at the same time. Intellectual property rights are not included in the above copies, but are reflected in the information reflected in the copies. Some scholars even suggested that "it may be better to regard intellectual property rights as information rights. With the development of society, it is increasingly necessary to claim that rights are divided into three categories: property rights, creditor's rights and information rights.
Why do you think that the essence of knowledge products is a kind of information? From the various objects of intellectual property to the specific analysis. The object of patent right is invention. Invention, whether as a "new technical scheme" or a "new design", conveys a kind of information to the public, and the public can implement the patent according to this information. The object of copyright is works, and the author intends to express his thoughts and feelings to people through works. Japanese copyright law defines a work as "the product of creative expression of thoughts or feelings in the fields of literature, science, art or music"; China's "Regulations on the Implementation of Copyright Law" defines "works" as "intellectual creations that are original and can be reproduced in some tangible form in the fields of literature, art and science". It can be seen that the essence of the work is information. As the object of trademark right, trademark is the symbol of the source of goods or services. It conveys information to the public, such as the manufacturer, origin and quality of goods or services. Consumers often rely on trademarks to make their own choices, while producers rely on trademarks to distinguish themselves from competitors' products or services. Databases, especially electronic databases, can be said to be the epitome of information. The American H.R.354 Act 199 10 defines the database as "information aggregate", that is, "information that has been collected and organized and changed from scattered to concentrated in one place or source for people to access. The above information includes facts, data, copyright works or any other information that can be collected systematically. As for trade secrets, it can be said to be a kind of information. The third paragraph of Article 10 of China's Anti-Unfair Competition Law clearly defines trade secrets as "technical information and business information that are not known to the public, can bring economic benefits to the obligee, and are practical and kept confidential by the obligee".
As the essence of knowledge products, information is intangible. "It does not exist in the form of land, air or wild animals ... this kind of property is a creation in the strictest sense", which is different from the traditional object of real right. Japanese scholar Masao Iwatani defines the object of intellectual property as "intangible objects such as inventing, creating, expressing ideas or attracting customers, and the result of intellectual activities". It is precisely because of this invisibility that intellectual property rights and tangible property rights are significantly different in object:
First, the object and carrier of tangible property rights are unified, while the object and carrier of intellectual property rights are separated. Knowledge products can only be embodied by some tangible material carrier, and the form of this material carrier is not unique. For example, a work can be fixed on film and displayed in the form of a movie, or it can be written into a book and published in the form of words. "From the traditional commercial transactions of crops such as words, music, photos, radio, movies, etc., we can find that the object of the transaction is not the crops themselves ... Although the crops are traded in the form of tangible things such as books, CDs, movies, etc., in fact, from the perspective of value, it is the connotation transaction of the crops in the main position, and the subordinate tangible transaction form is legally used." Then, what is the relationship between the object of intellectual property and its tangible carrier? Some scholars have introduced the concept of "abstraction" to describe the object of intellectual property: "Abstraction is the core structure necessary to constitute the identity of tangible things, and this core structure becomes the basis for observers to judge the identity between two concrete tangible things; Lawyers use this core structure to decide whether completely incomparable tangible things are the same or similar, or similar to each other. "
Second, the tangible carrier on which the object of intellectual property depends can be copied and imitated, and the intellectual property owner only enjoys exclusive rights to the same information reflected on several tangible carriers; However, for the object of tangible property rights, even if there are two identical tangible objects, there are two independent property rights on it.
Third, under certain time and space conditions, the same knowledge product can be used by several subjects at the same time, which will not cause tangible losses like physical objects, nor will it cause its own losses due to physical consumption. "Providing information to one person will not reduce the information provided to another person. In the words of individual capital, information has non-competitive characteristics in consumption. " The existence of knowledge products will only distinguish between private property and public property during the period.
Second, relative monopoly.
Intellectual property is a kind of monopoly right, which is different from the natural possession of objective things by tangible property owners. The possession of intellectual products by intellectual property owners is an artificial legal monopoly.
(A) the economic analysis of intellectual property monopoly
The definition of property rights of intellectual products originates from economists' theories about public goods and private goods. Economists divide commodities into private commodities, public commodities and club commodities according to their consumption and use status, that is, whether they are exclusive or not (such commodities are beyond the scope of this article). Personal goods refer to the exclusiveness of individuals in consumption or use, which can only be used by specific subjects under specific time and space conditions; Public goods refer to goods that are not exclusive in consumption or use, that is to say, one person's consumption of public goods does not reduce or exclude others' consumption of public goods, and the natural or technical attributes of public goods mean high cost of exclusion. Knowledge products are intangible, perishable and non-competitive in use, which determines that they belong to public products and enjoy * * *.
The property right of private goods belongs to private people, and the property right of public goods belongs to public goods. Why has knowledge information, originally a part of public goods, become the object of private property rights? First of all, "once information is defined in a certain way (referring to the existence of information that can be perceived by electronic or non-electronic means), the situation is different." For example, anecdotes are collected and edited into books, and unrestricted information is used as crops to obtain property value; If it is an enterprise's customer list or research and development data information, as a trade secret, it has not only practical value, but also legal value. " The usefulness and scarcity of knowledge information make it a kind of property recognized and protected by law, and thus further become the object that can be traded through contracts in intellectual property law.
Secondly, the definition of intellectual property rights is more important because of its serious external effects and "hitchhiking" behavior (that is, the behavior of obtaining benefits from others or society without paying any cost). As far as the spiritual field is concerned, once knowledge products are made public, it is difficult for information producers to deal with "freeloaders" who enjoy the benefits of products provided by information producers but don't pay. Therefore, information producers can't get enough income through market transactions to compensate their input costs. In this case, the private income of producers can not be guaranteed, which leads to the lack of motivation for the development of knowledge stock and the absolute growth of knowledge products. The government adopts the form of defining knowledge products as private through intellectual property system, which enables producers to control the spillover effect of information and obtain cost compensation, and stimulate the enthusiasm of private production of knowledge products. It can be seen from this that the conditions for the emergence of the intellectual property system are: the owners of intellectual products make their works, inventions and creations public, so that the public can obtain their expertise, and the public recognizes that the authors and inventors have exclusive rights to use and manufacture their intellectual products for a certain period of time. Knowledge products are public (public product attribute), while intellectual property rights are monopolized (private property attribute).
(2) Compared with tangible property rights, the monopoly of intellectual property rights is relative.
First, there are great differences between intellectual property and tangible property ownership in the way that the obligee "occupies" and "uses" its object. The object of tangible property ownership is tangible and objective, so it can be actually possessed, controlled and dominated by all people, and the use of one subject will inevitably exclude the use of another. The object and carrier of intellectual property are separated, and the obligee has the right to the intellectual product as intangible property, but this intangible property is easily out of the control of the obligee and occupied by an unspecified majority ―― here, "possession" is manifested in the knowledge and understanding of the intellectual product. In the Anglo-American legal system, intellectual property is regarded as a litigation right, that is, a right that can win the lawsuit but does not actually have it. "Under normal circumstances, the property in litigation is regarded as movable property that cannot be actually possessed, and it needs to be regained through litigation ... choseinpossession refers to tangible things, while the property in litigation is related to intangible property and cannot be claimed through substantive possession. It is precisely because of the particularity of this way of possession and the informational nature of knowledge products that intellectual property rights holders can also license many people to use their knowledge products in various ways.
Second, there is a difference between intellectual property and tangible property ownership in the "exercise" of rights. The function of intellectual property can be separated from tangible carrier, and the license and transfer of rights can be independent of carrier. For example, when someone receives a letter from someone else, the letter belongs to the recipient as a tangible thing, but the copyright (such as the right to publish and copy) exists in the letter. ) is still exclusive to writers. Therefore, intellectual property owners do not need to provide specific tangible carriers when granting licenses or transferring power to others. Because the exercise of the right to tangible property must actually occupy the subject matter, when the obligee permits others to use its property (such as renting or lending), the tangible property must be handed over to the licensee, otherwise the licensee can only obtain the "empty" right and cannot exercise it.
Third, the limitation of legal effect in time and space.
(A) the legal effect time is limited
Tangible property rights are based on the existence of tangible things. Once tangible things are lost, the rights of all people will disappear. However, knowledge information has the characteristics of non-loss, and any knowledge information can not be produced under the condition of completely cutting off historical relations, so it has the characteristics of "sustainability" However, in order to encourage the widespread dissemination and circulation of intellectual products, and thus promote the all-round development of science, technology, economy and society, the law has made rigid provisions on the duration of intellectual property rights, and intellectual property rights are only valid within this legal period. When the time limit expires, these rights will be revoked.
A new theory about the characteristics of intellectual property comes from: free paper net.
From an economic point of view, the limitation of the effective time of the law is aimed at such a paradox: "By giving the producers of ideas monopoly power, the producers will have a strong incentive to discover new ideas, but the high price of products by monopolists will prevent the use of products. In short, the puzzle of this problem is that without legal monopoly, not enough information will be generated, but with legal monopoly, not much information will be used. " The legal way to solve this dilemma is to restrict this monopoly right on the basis of protecting intellectual property rights. Setting a time limit for intellectual property rights will protect intellectual property rights within the statutory time limit, and remove protection after the prescribed time limit, so that these resources can be used by society. In this way, knowledge and information have a dual nature, both private products and public products. As a private product, it is necessary to ensure that private benefits and social benefits are as consistent as possible, while as a public product, it is also necessary to benefit the society in general, so that knowledge and information will eventually become a * * * shared resource.
There is no time limit for personal rights other than the right of publication in copyright. Some scholars have suggested that trademark rights and trade secret rights are not limited by time, but I disagree. First look at trademark rights. The law stipulates the renewal system of registered trademarks because of the special nature and function of trademarks: "identifiability" is the basic feature of trademarks, and the value of trademarks lies not in itself, but in the goods and services it marks, and in the business reputation and commodity reputation established by enterprises through long-term efforts. If the trademark expires before the producer stops manufacturing the goods identified by the trademark, then the producer will have to rename the product, and his hard-earned goodwill and "attraction" to customers will be lost, which will bring huge economic losses to the producer. However, whether a trademark is "renewed" depends entirely on the will and behavior of the trademark owner. As long as the obligee stops renewing, the right will be destroyed. In this sense, trademark rights are still limited. Secondly, is the right to trade secrets in anti-unfair competition not limited by time? In fact, the timeliness of trade secrets depends on the self-protection ability of secrets. Once the right holder makes the secret public or someone else cracks it according to "reverse engineering", the right to trade secrets will "die out".
(b) Space law has limited effect.
Most scholars summarize this feature as the "regionality" of intellectual property rights. From the origin of intellectual property rights, the original intellectual property rights appeared in the form of privileges granted by feudal monarchs, so its legal effect can only be limited to the power of monarchs. In modern times, this feature of intellectual property rights still exists. This is because different countries have different levels of economic and technological development and different historical and cultural backgrounds, so the scope and degree of protection of intellectual products recognized by laws in different countries are also different, and countries have different attitudes towards intellectual property rights. For example, developed countries such as the United States advocate that all countries should implement strong measures to protect intellectual property rights regardless of their economic development level, because for these countries, intellectual property rights can promote economic growth, increase international trade income, promote private investment and technology transfer, and encourage national creativity. In contrast, developing countries believe that knowledge is "the common wealth of mankind", not the exclusive right of a person or a company. The space limitation of legal effect is fully embodied in the principle of patent independence stipulated in Article 4 of Paris Convention. According to the requirement of independence principle, whether a member country approves or rejects a patent does not determine whether other member countries approve the patent of the same invention. Similarly, the revocation or invalidation of a patent by a member country does not affect the continued validity of patents approved by other member countries for the same invention, and the substantive content and scope of intellectual property protection in various countries are independent.
With the economic globalization, the development of science and technology and the rapid popularization of the Internet, it has become possible for intellectual property rights to have extraterritorial effects outside their own territory. For example, the trademark law of the United States can be applied outside the territory of the United States, which gives people the right to bring a civil lawsuit against anyone who improperly uses a registered trademark in business. "Business" here is defined as commercial activities that any country can operate according to law, including international commercial activities. [ 16](38)。 The United States also links trade with intellectual property rights through article 30 1 and special article 30 1 of the 1974 Trade Law, so that its administrative departments can adjust behaviors that completely occur outside the territory of the United States by taking credible threats of unilateral trade retaliation. In addition, the signing of a series of international conventions on the protection of intellectual property rights has also made intellectual property legislation increasingly integrated. The Agreement on Trade-related Intellectual Property Rights (TRIPS) is considered to be the first treaty in the world to stipulate the international obligation to protect intellectual property rights, while the Patent Cooperation Treaty (PCT) clearly defines the concept of "regional patent", that is, "a patent granted by a state organ or an intergovernmental organ that has the right to grant a patent valid in more than one country".
While the Internet has turned the earth into a global village, countries in the real world are constantly merging and colliding in politics, economy, science and technology, law and other aspects. Unless the laws of different countries can be completely harmonized, international conflicts are inevitable. Therefore, countries hope to solve the differences between different legal systems by establishing international conventions for the protection of intellectual property rights and using the dispute settlement mechanism provided by them, so that intellectual property rights can be protected more effectively, which is probably the deep-seated reason for the weakening of intellectual property rights. However, it should be noted that the space limitation of the legal effect of intellectual property rights still exists, and even "regional patents" can only be effective within the scope of the States parties to the Patent Cooperation Treaty; In addition, whether or not to grant a patent right should be judged according to the domestic laws of various countries, and each country still maintains judicial independence in procedure. Similarly, NAFTA, which is considered to represent a higher standard of intellectual property protection, is only a regional agreement and cannot be applied to countries in other regions.
Fourth, the uncertainty of the scope of rights protection.
As far as the ownership of tangible property is concerned, tangible property is under the actual control and domination of the obligee, who can exercise the right to possess, use, benefit and dispose of the property according to his own free will, and can exclude non-owners from illegally occupying, obstructing and destroying their property. Therefore, it can be said that the scope of protection of tangible property ownership is certain. In contrast, it is much more difficult to define the scope of protection of intellectual property rights. The following respectively from the patent right, trademark right and copyright to analyze this uncertainty.
First of all, for inventions and utility models, all countries' laws recognize that patent claims are legal documents that define their rights. Article 56 of China's Patent Law stipulates: "The scope of protection of the patent right for invention or utility model shall be subject to the content of its claim, and the claim may be explained by the specification and attached drawings"; Article 69 of the European Patent Convention stipulates: "The scope of protection of European patents and European patent applications depends on the contents of their claims, and the description and drawings can be used to explain the claims." However, when an inventor applies for a patent, it is often impossible to accurately predict all possible infringements in the future, and it is difficult to write the claim in a watertight way, which makes how to understand and explain the meaning of the claim the key to determining the patent scope of an invention or utility model. At present, there are two practices in various countries, namely "central restriction" and "peripheral restriction". The method of "peripheral definition" is not conducive to fully protecting the rights and interests of inventors, because it requires strict interpretation according to the literal meaning of the claims; Adopting the method of "central definition" is beneficial to the patentee, but the boundary of the scope of rights protection will be blurred due to human factors when expanding the interpretation of patent rights.
Secondly, China implements a trademark registration system, and the trademark right is limited to registered trademarks and goods approved for use. When applying for trademark registration, the applicant must accurately fill in the category and name of the goods to be used in applying for trademark registration according to the commodity classification table, and the Trademark Office will specifically verify the scope of protection of trademark rights on this basis. However, with the development of expressways, new information products and services are constantly emerging, which makes the international classification of goods and services stipulated in the Nice Agreement unusable. In addition, according to item 1 of Article 38 of China's Trademark Law, it is an infringement for others to use the same or similar trademarks on the same or similar goods without the permission of the trademark owner. But how to judge the same or similar goods? What is the same or similar standard as the approved registered trademark? Obviously, this brings great uncertainty to the scope of protection of trademark rights.
Third, the principle of "only protecting the expression form of works, not extending to ideas (or contents)" in copyright theory is unsustainable under the impact of digital technology. The form and content of new information works are often integrated and difficult to define. For example, in August 1986, the American Court of Appeal declared that when computer program works are involved, the division of thoughts and expressions should be determined by the goals pursued by the works themselves. The "structure, order and organization" of works that are usually regarded as "forms" in other works is an organic part of the contents of computer program works and should also be protected by copyright law. The data in computer information space usually does not have the specific form required by traditional works, and different works can be converted into binary numbers by digital technology for storage and transmission. People can't help asking: In the process that the content of this data is decided by the sender (creator) and the form of the work is decided by the receiver (user), is the originality standard to be achieved by the copyright of the work determined by the form or the content? In addition, common law countries have long adhered to the concept of "sweating on the forehead" when judging the elements of copyright protection of works, and believe that as long as the works are independently created, they can be protected by copyright law unless they copy others. However, how to quantify "sweating" and the extent to which "sweating" can constitute the fruits protected by law is a controversial issue and a very uncertain factor.
In addition to the above-mentioned scope of rights protection itself is not easy to determine, with the rapid development of science and technology, the continuous expansion of intellectual property objects has also brought difficulties to determine the scope of rights protection. As some scholars have said, "intellectual property is a developing right." Today, mankind has entered the era of information explosion, information is changing with each passing day, and various knowledge products are pouring out. For example, electronic money has been patented in the United States, Europe and Australia. In recent years, trademarks began to appear on agricultural products, and farmers began to label rice, fruits and other products to show distinction and protection. In addition, such as microorganism, DNA recombination technology, protein structure and even human genes have been or are being patented. At the same time, the content of intellectual property rights is constantly enriched and refined, and the corresponding infringement methods are constantly "bringing forth the old and bringing forth the new", which makes the scope of intellectual property protection uncertain. Therefore, the legislation of intellectual property protection should be closely related to the development of science and technology. At the same time, considering the particularity of the object of intellectual property, the function of intellectual property should be defined, expanded or restricted in time to help intellectual property rights holders better protect their intellectual achievements, and at the same time realize the legislative purpose of intellectual property rights-not only protecting the legitimate rights and interests of the creators of intellectual achievements, but also promoting the wide spread of science, technology and culture.