On the negative conceptualization and characteristics of intellectual property Reconstruction

Abstract view of the legal concept of uncertainty and the characteristics of their own intellectual property, should abandon rigorous conceptualization of cognitive path, and the object should start to cognitive concept of intellectual property. Meanwhile, apart from a comparative perspective with the property outside, but also from the legal system of intellectual property legislative purpose, evolution and development trend of the historical perspective of a comprehensive awareness of intellectual property and other characteristics.

Paper Keywords legislative purpose of the concept of intellectual property law

An intellectual property conceptualization of negation

Along with knowledge and information production, distribution and use-based economy - the knowledge economy in contemporary society the status and role of rising, as the commanding heights of international competition and the killer's 'intellectual property' has been unprecedented in the country attention. China is no exception, from the unheard of three decades ago, to today's familiar, 'intellectual property' has become a buzzword nowadays.

However, the 'intellectual property' is what? The problem that people do not seem to give an accurate answer. In essence, the Chinese 'intellectual property' an exotic language is English Intellectual Property Right paraphrasing. 'Intellectual Property Rights' since the latter half of the 20th century, is widely used in an international legal concept originated from the 17th century French Revolution, the main advocate of the French sociologist Karp Zoff, and later through the Belgian jurist pickup the first demonstration and development of others. But 'intellectual property' since the birth of the concept, not only in the 'intellectual property' in the title on this concept there are many differences, but the connotation of the concept of intellectual property can also be said to be divergent views. From a global perspective, more representative of several ideas are: intellectual property law by the famous British Cornish (WRCornish) that intellectual property is the outcome of some of the best protection of human manifestations (finer manifestations) is a legal branch. Japanese scholars Zhongshan Nobuhiro that intellectual property is protected by the prohibition of unfair imitation of the information. Specifically, is the human intelligence, spiritual creations creations (such as inventions and works) and on the credibility of the business performance management logo (such as trademarks and trade names) in general. Australian scholar Davao House (Drahos) that intellectual property is 'property rights litigation,' according to the lawsuit has not yet won possession and actual possession of the property. Our late well-known intellectual property law scholar Professor Zheng Chengsi that intellectual property refers to people can create their intellectual achievements are legally entitled to proprietary rights. Another one of those famous Intellectual Property Law Professor Wu Handong believes that intellectual property is a people based on their achievements and intellectual activities to create the tag management activities, reputation and rights under the law. He believes that there are broad and narrow intellectual property division method, narrow intellectual property includes only industrial property (Industrial Property) and literary property rights (Literature Property), and so on.

And scholars have different definitions of the broad style, most of the international treaties and national legislation is adopted in the manner outlined elaborate What is intellectual property. For example, July 14, 1967, concluded at Stockholm 'was established WIPO Convention' on page 2, paragraph 8, of intellectual property is defined as: intellectual property rights include the right to: (a) literary, artistic and scientific works related rights; (2) and the performances of performing artists, phonograms and broadcasting and related rights; (3) and in all areas of human creative activity related rights in the invention; (4) and scientific discoveries related rights; (5 ) and industrial design-related rights; (6) and the trademarks, service marks, trade names and other commercial signs related rights; (7) and to prevent unfair competition related rights; (8) all other from industry, science and literary arts fields rights resulting from intellectual activity. Again in April 1994 concluded in Malagasy of the 'Agreement on Trade-Related Intellectual Property Rights' (ie TRIPS) is the first part of a way of using the list outlines the scope of intellectual property under the Agreement, intellectual property mainly includes the following rights: (1) copyright and neighboring rights; (2) trademark; (3) Geography Markup rights; (4) industrial design rights; (5) patents; (6) integrated circuit layout ( topology) rights; (7) the information is not disclosed exclusive rights.

Thus, with regard to the concept of intellectual understanding of scholars are not consistent, but most of the international treaties and national legislation but also to delineate the range of ways to avoid direct definition of intellectual property. In fact, as Professor Zheng Chengsi said, 'It has been going out of the circle (the international intellectual property treaties delineated scope), open up the 'new' way to define the result is ultimately returned to the circle, changing the way repeated the scope of the plan predecessors, just coined the individual is not accepted by the people of the 'new concept', not actually made available for any 'new' way. ' I believe that this is a perfect reflection of the complexity of the issue of intellectual property. Indeed, as the generation and dissemination of technical and commercial development of the product of the intellectual property system, it and other rights of the different systems, with strong technical expertise, coupled with its subject matter of protection of intangible and openness, making it more difficult for its making is relatively stable, accurate definition. However, this we do not need to worry, because 'the legal concept of 'uncertainty' (Unbestimmtheit) is expected to do. Uncertain legal concepts, legal rules can be established for the corresponding relatively large scope and room for discretion. law and therefore have the flexibility and the help of legal concepts such openness and uncertainty, both laws can be applied to new facts, but also can be applied to new social and political values. '
Therefore, we do not need to give too strict a definition of intellectual property, in fact, is very difficult to do, but based on research needs, we should be the object of intellectual property rights or rights to have a basic understanding of the object. The object is to create intellectual property intellectual, industrial and commercial activities in the field of formation results in distinctive marks or results. Intellectual property that is formed based on the results of intellectual creative activities and business areas of distinctive marks or results and the formation of statutory rights. It should be noted that intellectual property rights is actually a collection, it has a broad and narrow sense, broad intellectual property mainly refers to the international treaties related to the rights (of course, the respective ranges vary); rather narrow intellectual property refers to workers (providers) industrial property and copyright (copyright), in which the main industrial property rights, including patents, trademarks, and to prevent unfair competition and other related rights, copyright and authors' rights include the right communicators (adjacency right) and so on. But no matter what kind of division, copyrights, patents and trademarks are the backbone of intellectual property rights and core, at this point, countries are more consistent understanding.

Second, the characteristics of intellectual reconstruction

Intellectual property rights as a civil rights of its features, many scholars have discussed, some scholars believe that the unique characteristics of intellectual property is the object of intangibility; Some scholars summed up the characteristics of the proprietary intellectual property rights, territorial, time and non-material objects; Some scholars believe that the rights of intellectual property are characterized by intangibility, proprietary, regional, temporal and replicability, etc.  Tun, where the majority of scholars mainly from the property comparative perspective to discuss intellectual characteristics, there are some limitations. To fully understand the characteristics of intellectual property rights, in addition based on the angle, the sophisticated intellectual property legal system should be comprehensive legislative purpose, evolutionary history and development trends, hereinafter the Theory.

(A) The intangible nature of intellectual property objects intangible intellectual characteristics, refers to the object of the intangibility of their rights, rather than the intangible nature of intellectual property itself, because any rights are intangible, but also intangible non-carriers, we discuss the 'visible' and 'invisible' for the purposes of the rights object. The so-called right to object, also known as the object of legal relations, 'refers to the legal relationship between the main rights and obligations of the common object pointed to'  Yi can also be understood as recognized by law, have to meet the people's demand characteristics of , may be the subject of rights disposable objects. The intangible nature of the object is different from the intellectual property, real estate and other property rights of a significant feature. Movable and immovable property and other property rights to the object is the thing, civil law countries generally believed that 'as a principle object of real objects physical things'  Yi, and the property of the object and the object carrier is a coincidence, so people can perceive , that is visible and tangible; while intellectual property of the object is invisible, such as for a literary work - Jin Yong's novels, the intellectual property of the object is the work of Jin Yong expressed by means of the text and its inherent The ingenious thoughts and feelings, rather than the people visible, tangible, capable of direct perception is hundreds of pages of paper, and the lead, ink, etc. constitute the text, these are just object of intellectual property - works carrier. Indeed, the object of intellectual property rights often requires the carrier by means of physical things to manifest, but do not rely on physical things of the carrier, because with one of Jin Yong's novels, and lead the aid of paper, ink and other carriers can also be engraved on the stone walls, which Not because of the different carriers affect their copyright exists. Again, Thomas Edison invented the light bulb, but is not protected by intellectual property laws tangible light bulbs, but follow and utilize natural laws and intellectual creation of labor cohesion Edison lamp on manufacturing technical solutions.

Characteristics of intangible intellectual property objects will inevitably lead to two problems: First, intellectual property ownership rights of people who did not like the actual possession and control of the right collar of the object. For example, the authors published their works, even if the author is able to control the work of the carrier, and can not control the actual use of the work of others, making it easier for intellectual property infringement. Second, the intangible nature of intellectual property objects also led to the identification of infringement of intellectual property has become more difficult and complex. For example, a laptop computer, a violation for which ownership is relatively easy to identify, as long as examine whether the notebook is not based on the meaning of all but out of the possession of rights holders, and other aspects of its soundness has not been able to judge the extent of abuse and violations ; and for intellectual property objects - computer chip identification of the patent infringement is not so easy, because the computer chip patented technology is invisible, right holders themselves are not actually control, let alone infringer, because of this, unauthorized use of the patentee's technology, intellectual property often is not very visually perceived, that is against the invisible, hidden. Meanwhile, the scope of patent protection is mainly based claims patent application documents to determine the contents of the book, and need the help of relevant technical characteristics to determine, so others' intellectual property rights of patent holders would constitute infringement and infringement extent finds becomes relatively complicated. Therefore in the law need only determine the ownership of tangible property ownership and protection, without the need for specific content of the right to make specific provisions for the right person can possess other means of publicity, but for intellectual property rights not only need to determine the type of , the rights of ownership, but also need to clear the contents of the specific rights of intellectual property, the only way to play a public role and effectively protect intellectual property rights.

(Two) the proprietary nature of intellectual property rights is precisely because of the intangible nature of intellectual property objects, making the legal protection of intellectual property there are some difficulties, but stressed that the proprietary nature of intellectual property rights, it will help to draw the intellectual property rights scope of rights holders and non-rights holders boundaries between in order to provide strong legal protection of intellectual property.

Intellectual property rights belonging to or absolute right of the World, 'who owns the intellectual property rights, is against the rights of all non-rights holders, or that are not specific to the public all the main obligations exist for the right to intellectual property law once generation, all of the public should be fully respected; not by permission of the rights, no person shall freely use and disposition. ' Yan course, despite the intellectual property is a kind of exclusive, exclusive civil rights, but it is real right exclusive, proprietary nature there is a clear difference. In general, the property's exclusive performance for a particular object, only by a particular subject all other subject can not claim their rights, but other subjects can belong to another specific object congeners have rights. The intellectual property is different, when access to intellectual property rights of a legal entity, other legal entity in the same legal effect which can not be obtained within the same rights. For example, in the patent field, whether it is to take first apply the principle, or principles of the invention the first country to take two or more than two people are created the same invention, only one person (or the first applicant, or first inventor) to obtain patents. Another inventor invented earlier can also be achieved if the right of prior use, but if the invention may not post any rights.  corned beef Again, the trademark field, 'two or more of the trademark registration applicant, in the same kind of goods or similar goods, with the same or similar to the trademark application for registration, application for preliminary approval and announcement earlier trade mark ; the same day the application, preliminary approval and announcement earlier trade mark use, others rejected the application shall not be published. ' course, the field of copyright, proprietary relatively weak because of copyright protection only requires originality of works without requiring initiative, for example, two works, as long as the independent creation, there is originality, not plagiarism, although the two are the same, you'll get the copyright laws.

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(three) the timeframe of intellectual property protection for the intellectual property system on the one hand and the creation of intellectual achievements trade mark protection to provide exclusivity, they also on the rights of right holders to make certain limit, the protection period of time there is this kind of system design one embodiment, therefore, intellectual property is a civil rights by the temporal limitation. Throughout the history of development of the intellectual property system, in spite of the provisions of national legislation is not difficult to find the term of protection of intellectual property are different, but generally provide a clear deadline. Not only the beginning of the intellectual property system produces so , today is also true, for example, the Copyright Act, the author's moral rights of authorship, the right to modify, to protect the right of integrity unlimited term of protection; citizens the right to publish the work, economic rights of protection for the rights of life plus 50 years after the author's death at the end of 50 years on December 31; a collective work, as in the death of the last 50 years after the author's death in December 31 days. Patent law, patent protection period is 20 years, utility model and design patent protection period of 10 years from the date of application; Trademark Law, registered trademarks, protection of exclusive rights for a period of 10 years from the approval of the registration the date.

Since it is a proprietary intellectual property rights, then why not get as tangible property ownership as a relatively permanent protection? In fact, the reason for the term of protection of intellectual property rights restrictions, mainly based on the following two considerations: first, human labor is divided into two kinds of manual labor and intellectual labor, manual labor outcomes - a body formed from property theoretically possible without the help of any of the labor of others, such as the use of natural primitive stone tools and seeds can grow food, but as the object of intellectual effort intellectual formation is unable to escape, and the use of human society has a certain These excellent results. Some people may say, assuming someone in the absence of any reference to the results of others under the premise alone made an invention, it can be said that his intellectual labor is inseparable from human society has some outstanding achievements do? Yes, because we can assume that a newborn child to the primeval forests and isolated from human society, a few years later would look like? No human language, not human-specific thinking, how can such a person be able to create and invent it? Moreover, in reality, a lot of inventions and other intellectual effort in others on the basis of existing technology to form, so no matter what kind of intellectual labor are inseparable from the formation of human society has some outstanding achievements . Thus, although the creation of intellectual property as intellectual and commercial achievements marked the proprietary nature of human rights, but the legal system should be designed to take into account the heritage and development of civilization and knowledge of the needs of the social nature of the product itself, and intellectual property to do a certain limit, in order to achieve the intellectual property rights holders and the public and the balance between the interests of society. For example, regarding the patent system in the West on the existence of a 'right price theory', that state shall recognize and protect inventors within a certain period of exclusive, monopoly rights, but as for the price, the patentee should protect the expiration Let the patented technology after entering the public domain, anyone is free, free to use. Second, as the object of some of the intellectual achievements of intellectual property, such as technology, they themselves have a certain lifespan, when a technology is new technology to replace, this technique will in fact be in position to be eliminated, and if the law is still its provide protection, which means the country with a great cost to protect an ineffective technology, such an approach is very economical.

(Four) regional intellectual property rights in the intellectual property system Throughout the history of the emergence and development, difficult to find, the intellectual property system is a feudal privilege or monopoly rights evolved. Such as copyright was originally the feudal royal grant to certain conditions publisher publishing, printing works privilege; patent was originally given by the king to bring new technologies to the UK skilled workers within a certain period of monopoly rights. This privilege or monopoly rights generally through licensing by the royal way of grant or announcements, therefore only valid within the scope of its ruling, the intellectual property rights arising from the beginning with a 'regional' characteristic. However, access to capitalist society, due to the 'freedom', 'equality', 'natural rights' and other popular notion is reflected in the intellectual property legislation is one of the biggest changes - Intellectual Property feudal privileges from the initial evolved into a kind of civil rights. For example in 1709 the UK has developed the world's first one in order to protect authors' rights for the main purpose of the bill - 'Queen Anne Act'; 1624 England developed the world's first one in order to protect the rights of inventors for the main purpose of the bill - 'Monopoly Act' and so on. Nevertheless, 'but based on national sovereignty and geopolitical needs, such' regional 'feature as far as the scope of legal effect, is still retained, so far, in addition to the areas of intellectual property fast integration process (such as the European Union, the French-speaking African countries) outside, patent, trademark, copyright these traditional intellectual property rights, are only produced by certain national laws, and only in their geographic area according to the law effective. '

Regional characteristics of intellectual property rights is mainly reflected in the following aspects:
First, a country's intellectual type, content and other requirements by the law of that country, independent of the laws of other countries on the same object of intellectual property - rights under intellectual achievements, do not copy nor converge. For example, the same is computer software that intellectual achievements in different countries can obtain intellectual property rights situation is different, many EU countries by modifying, explaining patent law, which will be considered as having technical computer software patentable subject matter, so far hundreds of thousands of computers have been granted patents, while China and other countries will only be regarded as a kind of work to adjust the scope of copyright law included; Again, the same business method patents can be obtained in the United States, but in China it is can not; Again, the same moral rights, the provisions of the French Intellectual Property Code of publication rights, authorship, the right to amend, to protect the right of integrity, the right to demonstrate and works of authorship such as the right to recover the contents of six, but only the first of copyright law four, and so on.

Second, the range of validity of intellectual property rights conferred in principle limited to within the country. For example, the field of copyright, since it would only require 'original' does not require the 'first', that exclusivity is weak, it is generally not against copyright extraterritorial established based on the same creative copyright; patent field, although the patentee's exclusive strong, but their effectiveness was limited to giving domestic, not extraterritorial restrictions based on the same patented inventions obtained, such as China's 'Patent Law' Article 22, paragraph 2, 'novelty, refers to the before the filing date, no identical invention or utility model has been publicly disclosed in publications at home and abroad, in the country publicly used or otherwise known to the public, there is no identical invention or utility model proposed by others apply to the Patent Office which described the application after the date (including the filing date) published patent application documents, 'in other words, been publicly used abroad or otherwise known to the public, but as long as no publicly disclosed in publications published in the same invention or utility model patents, but also can obtain a patent in the country, each in their respective geographic area takes legal effect; trademark field is also true, in addition to well-known trademarks to  Yan, the exclusive right to use registered trademarks and disable the effectiveness of the right scope is limited to giving domestic ranges.

Third, intellectual property rights to judicial relief only in accordance with the country's empowerment laws and legal process by giving courts of the State to achieve. For example, China's copyright law, patent law and trademark law provide that protection of the rights and remedies of the way, the constituent elements of violations, legal liability, there are some differences with other countries.

Of course, along with the accelerated process of economic globalization, intellectual property also presents the trend of integration, especially with the international conventions on intellectual property to further expand the scope of intellectual property by the regional characteristics of certain challenges, but It must not be denied the regional characteristics of intellectual property rights exist. This is because: First, the role of international conventions on intellectual property must be determined and retention of sovereign states to join or not, do not join or make a reservation, then the country's intellectual property system and international treaties, foreign legislation does not converge; Second , International Intellectual Property Treaties between Member States whether to recognize extraterritorial intellectual property, intellectual property depends crucially on whether Member States are members of international conventions or bilateral agreements with each other, or whether there is reciprocity treaties. Therefore, the so-called 'global intellectual property system' is a prerequisite that recognizes the existence of a sovereign state, is a sovereign state in recognition of the differences in intellectual property protection (regional), under the premise of 'integration.'
(Five) of the dual nature of intellectual property rights of intellectual property content is not only a cross-cultural, science and technology, property rights and legal fields spiritual wealth, and in the production and social life of human society has a high value and use value, but also the human society an important part of the wealth. Although they are private rights of intellectual property, but it is different from the traditional property rights, personal rights and other civil rights and certain intellectual property rights and personal rights with the dual attributes, such as the right to publish both copyright, authorship, the right to modify and protect the right of integrity, etc. personal rights of content, also has the right of reproduction, exhibition rights, property rights such as the right information network dissemination capabilities. As the International Federation of Composers charter pointed out, 'intellectual works both individual personality of the product, but also a source of economic interests. Resulting right of personal rights, the author's right to identity; thus also produced author all forms of exclusive use of the work principle of the right may be transferred, and does not ask its value and purpose. ' Thus, it' broke the 'thing' for the sector will be designated as the right of civil rights, debt, intellectual property, etc. distinction. 'has become a unique civil rights. Of course, with the personal rights and property rights of dual copyright and intellectual property mainly limited to some neighboring rights (such as rights of performers) and the trade name right, right of goodwill and other intellectual property rights belong to a single character.

(Six) The openness of the intellectual property system, 'the provisions of law is not just static, but is a living force,' Intellectual Property Law is also true. Intellectual property is the creative work of the intellectual achievements of statutory forms, however, 'with the development of rights is a concept to be protected with an interest in, when necessary, through legislation or case law doctrine gives the power, making it rights. ', it is the intellectual property system should also be an open system of rights. In recent years, along with the development of information technology and constantly emergence of new types of intellectual achievements, countries according to their own interests, needs and orientation and to adjust and expand the scope of its intellectual property, business methods, gene technology, etc. are included in the Knowledge property law is the proof. Thus, during our intellectual property legislation should be based on openness and development perspective, pay close attention to technology development and social progress, the object of intellectual property in a timely manner, to give power defined, extended, or limited, in order to facilitate the intellectual property owner better protect their intellectual achievements and effectively promote technological development, cultural transmission and other social and public interests is achieved.

Third, the conclusion

Throughout the legal system of intellectual property development and evolution of history, not difficult to find, printing and other new technologies, new technology is the emergence of intellectual property legal system generates incentives, and accompanied by modern computer revolution, the Internet revolution and the communications revolution to the mainstream The new technological revolution forward, will further expand the scope of intellectual property rights. Meanwhile, in view of the legal concept of inherent uncertainty attributes, it should abandon the rigorous conceptualization of cognitive path, and should be changed to start from the object to the concept of intellectual property awareness and meaning.

Rights are statutory benefits, however, whether the increased interest for the right, when it can rise to the right to increase the extent to which the rights and how to rise to rights etc depending on the value orientation and the legislative process, intellectual property is also case. Thus, in exploring the characteristics of intellectual property rights, in addition to property from a comparative perspective with the outside, but also from the legislative purpose of intellectual property legal system, history and development trend of the evolution of multi-dimensional focus, the characteristics of intellectual property rights in a comprehensive cognitive .

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