Abstract With China's accession to WTO, the concept of intellectual property rights for the people gradually perceived.The current order in the legal system of intellectual property, cultural double deletion status, build a good intellectual order, you need to build a two-pronged legal and cultural context, all emphases differ. Adjust the nature of private rights and public intellectual balance between the need to make intellectual property a real society, the public use.
Paper Keywords IPR legislation legal localized cultural construction cultural soil
I. Comparison Western intellectual outlook
Intellectual property system is accompanied by the generation of Western individualism spirit, the spirit of liberalism, rationalism spirit generated truly Western intellectual property system began in the late Middle Ages, after hundreds of years of breeding, to the 19th century, the Western countries have established intellectual property system. In China, intellectual property as Western exotic, is generally believed that began in the late Qing dynasty, the Qing government New Deal and the modern Chinese learning products to the West, to the modern, with China's accession to WTO, intellectual property legislation is also developed to a relatively frequent extent.
Second, China IPR order Analysis
According to Professor Wu Handong order interpretation of intellectual property rights, good order and mass consists of two aspects of intellectual property, one, innovation continue to emerge; Second, innovation is well protected. Therefore, to analyze the current status of intellectual order, is to see whether the deeply rooted culture of intellectual property, intellectual property legal system is able to well protect intellectual achievements. Specific analysis is as follows (a) an intellectual property legal status. Legislation and China joining the WTO before the completion of the 'Copyright Law', the 'Patent Law,' 'Trademark Law' amendment, and in June 2008 issued a 'National Intellectual Property Strategy.' China's intellectual property legislation ushered in a climax. Generally speaking, China in less than 20 years, completed the Western developed countries, twelve years to complete the legislative process Bi intellectual property. Nevertheless, there are still some legislative aspects of problems, mainly reflected in:
First, the legal framework is relatively sound but the lack of appropriate supporting laws. In Korea, the 'Dragon Boat Festival' for world cultural heritage a Case. Although China has related intellectual property rights legislation, but no supporting legislation to protect traditional festivals, and the relevant laws of Japan and South Korea already relatively well. This makes our country at a disadvantage in international litigation.
Second, the lack of laws degree of localization, the majority of the law as 'forced' transfer from the West. Chinese intellectual property legislation draws western intellectual property law, in the process, the lack of localization digestion and absorption process will inevitably 'acclimatized.'
2. Enforcement of intellectual property management agency status including the State Intellectual Property Office, the State Administration for Industry and Trademark Office, the National Copyright Administration, Ministry of Culture and other state organs. Protection of intellectual property practice, the Chinese form of administrative and judicial protection 'two-way parallel operation' intellectual property protection mode. vertical main characteristics and problems of law enforcement, including:
First, the law enforcement activities to special law enforcement activities mainly sought in a certain period of time, a large-scale geographic focus of special treatment. In 2000 to 2005, for example, China has dealt with 174,000 cases of trademark infringement, the public security organs to transfer suspected criminal cases 559, 560 suspects, showing that our country has made in the enforcement of intellectual property on a certain outcome;
Second, the administration and administrative law enforcement integration, management and penalties roles in the same law enforcement agencies. The State Administration of Industry and Commerce Trademark Office, for example, it is not only responsible for trademark registration authority, but also for intellectual property cases mediation, adjudication and intellectual property violations in the investigation.
Third, many departments, functions scattered, standards are not uniform. Responsible for administrative enforcement of intellectual property rights as much as dozens of departments, including management of different standards resulting in enforcement of contradictions, such as: the National Copyright Administration announcement requirements Kara OK business sector to business premises compartment as a unit, paying royalties to use fees. The Ministry of Culture to enjoy regulatory authority on the grounds of cultural content, launched the 'National Kara OK content management system,' Kara OK for all establishments and other units of the introduction of free access, free service. Such standards are not uniform, the actual operation to IPR enforcement has brought some difficulties.
3. Status of IPR trial judicial institutions from scratch, gradually improve and perfect. Currently, the Supreme Court and the High Court have set up intellectual property divisions (Third Civil Chamber). 2004-2007 data show that China's substantial increase in intellectual property cases, hearing range continues to expand, clearance rate increased year by year, the second instance commuted rate gradually decreased, retrial rate has been reduced abundance. However, compared with developed countries, there are still some problems, mainly reflected in:
First, the justice long period, high cost, difficult to obtain evidence. Case of Zhengzhou Top Rolling Mill, from the case of litigation took three years to hear, spend a lot of litigation costs but still did not stop infringement. Another example is the 'Status Report Intellectual Property Ningbo enterprises' shows that more than half of the companies that suffered violations of intellectual property rights after the high cost of hard evidence.
The second is a serious local protectionism, the degree of implementation laws should be strengthened. Some local governments to protect local firms, ignoring intellectual property legislation, the infringing companies suffer huge losses. Zhengzhou Top Rolling Mill in the above case, the length of the trial period is an important reason for this is the local government to protect local firms, leading to different parts of the law suit different standards.
(Two) Reasons cause immediate legal status of intellectual property legislation, law enforcement and judicial aspects of the problems related to the factors both for historical reasons, there are practical reasons, I think mainly include the following:
First, the lack of laws degree of localization. This is caused by the current intellectual property legislation 'acclimatized' the direct cause. China's IPR legislation lacks long as Western cultural accumulation, was 'forced me to used' and 'as I used to,' the product. In from abroad to the domestic law into the legal process, the law localization is an important process. Although China for nearly 30 years to complete the establishment of intellectual property legal system, but how to transplant laws localization is a lengthy process.
Second, the lack of legal culture, intellectual faith is insufficient. This is caused by the current intellectual property law the root cause of the problem. The establishment of any kind of system will inevitably need cultural support its matching, it is impossible to sustain long-term, while in China, is still a lack of intellectual property protection of cultural soil, on this point will be discussed in detail later.
Third, limited resources, intellectual property law, law enforcement, judicial difficult. Taking into account the realities of China's national conditions, China's current legal resources are limited, it is difficult to achieve as the Western developed countries to carry out a long time, covering a wide range of management activities. Combined with Chinese people generally lack awareness of intellectual property rights, making it infringers without knowing it. According to 'China IPR Blue Book' survey shows that piracy of consumer groups, 12% because they do not know is wrong to buy piracy, 41% were due to be deceived and mistakenly buy counterfeit and infringing goods.
(Three) IP Culture deletion analysis described above, resulting in China's current intellectual property law 'acclimatized' One important reason is that intellectual property law in the course of the lack of suitable transplant cultural soil. The realization of both the legal system and law making, the content of the law, law enforcement itself, is also affected by the social, economic and political development and the environment. 'All the problems generated by the culture, all problems are solved by the culture.' Intellectual property law as a legal transplant also need to have the appropriate cultural support to be able to get sustainable development.
The author believes that the current intellectual property rights caused mainly due to lack of cultural soil of traditional Chinese thought and culture of the Western intellectual property system generated based on the differences between the decision. Confucian culture as the core of Chinese traditional culture, advocates of the 'not in civic rights of the individual as the basic unit of the standard, but the family unit of human relations Duty Standards.' Zhi By comparison, the generation process of the Western intellectual property, we can find , intellectual property as a modern commodity economy and capitalist economic development of the product, from the outset to be branded on the private rights of the mark, the intangible nature of knowledge products and ease of use is not easy to determine its protective nature, and you need capital the core of the concept of private rights sacred doctrine, through legal means to protect it. In addition, as Chinese tradition 'Things,' 'selfless' thinking philosophy, often resulting in a knowledge-sharing and free use of the results, even after the rights have been violated, it is difficult to be held accountable.
Chinese and Western culture and ideology of the matter good or bad, but thinking born out of Western capitalism in intellectual property law, in Chinese traditional agricultural civilization cultural soil, then the inevitable emergence of a legal transplant 'rejection.' 'Orange Orange Health Huainan, Huaibei was born in orange.' How to integration into the modern intellectual property law kernel of traditional Chinese culture is intellectual property legislators need long-term thinking.
Third, the rule of law and Cultural Perspectives
We all know that the process of localization of intellectual property law is to be done, so the problem is that in this process, the focus is on what is to allow the system to adapt to the culture, or allow the system to adapt to the culture. That should be adjusted for the weight of the law, or to transform culture as the most important. The author believes that to solve this issue needs to consider the following points:
First, no system is rooted in a particular cultural produce and develop, there is no culture of the soil system is not able to sustain a long time, here need to discriminate two concepts, one is the formation of the system's native 'culture soil ', and the second is the system established after the formation of the' institutional culture. ' The former is the foundation of the survival of the regime, which is the system itself is the result of cultural reaction. The two can not be confused. In the clarity of this concept, we can see that the Chinese traditional culture lack of awareness of intellectual property rights, is the moment you must first make up, otherwise it is difficult to talk about intellectual property legal system.
Second, the long-term cultural development of intellectual property and the current construction of the urgency of the order decided by the contradictions between our culture is difficult to completely rely on spontaneous and slow the formation of good intellectual order. At this time, legislators transformation laws to the maximum extent, to adapt them to the traditional Chinese thinking and culture is vitally important that the legal process of localization in order to establish the intellectual property plays the most important and effective role in .
Therefore, the order of creation of intellectual property is a legal alien localization and transformation of traditional culture and then two-way process. The author believes that the legal system should be based, while transforming the Chinese traditional culture fundamentally suited to the spiritual core intellectual property culture.