This is a special contribution by the author to the legal reader library for intellectual property day。
When it comes to intellectual property rights, most people first think of patents and trademarks, and most may not have had a patent or registered a trademark in their lifetime, this has led many to feel strange about intellectual property, and many small partners lack a clear understanding of intellectual property rights, or even a lack of knowledge of intellectual property rights at all, resulting in a lot of misinterpretation of intellectual property rights. This paper attempts to unmask the cold “faces” of intellectual property and to restore the original face of intellectual property。
- what's intellectual property
Intellectual property rights are the common expression of copyright, patent and trademark rights and are a set of rights rather than individual rights. In the civil law world, rights are divided into property rights, which are typically represented in rem, and personal rights, which are typically represented in person. Intellectual property rights are neither mere property rights nor mere personal rights, and intellectual property rights lie between property rights and personal rights, such as the author's right to sign a copyright has a distinct personal character, while the right to lease has a distinct property character. It is precisely because of the particular nature of intellectual property rights that the legislator has separately enacted legislation, which is regulated and regulated by the copyright act, the trademark act and the patent act, respectively。
Intellectual property rights
With the exception of copyright, patent and trademark rights are of a more technical nature, but technicality does not mean that they are far from our lives. It's so small that it's an original circle of friends, and it's so big that it publishes a famous book, all of which involves copyright. While most of us have no patents or trademarks, we deal with others' patents and trademarks every day. We use mobile phones every day, whose shell bears the trademarks of others, and whose interior is a patent for inventions, whose appearance is a patent for appearance design and for practical new patents. The posters we see every day bear the trademarks of others, and the televisions, couches, lamps, etc. Used in the home have intellectual property. Intellectual property rights are not far from us, but we have not noticed their existence。
Functions of intellectual property rights
Compared to other civil rights, intellectual property is a very “hegemonic” right. For example, you can give the same name as anyone else, because the right to a name is not exclusive, and you have an obligation not to interfere with the use of a name, as is the case with property rights. But that's not the case with intellectual property, and you can make a perfectly legitimate claim that no one else can modify, publish or distribute it. Any person who, without your permission, commits an act controlled by the copyright act against your work, and who is not the subject of any unlawful impediment, such as a legal permit and reasonable use, constitutes an infringement of your copyright! The same applies to patent rights, where you have a patent, and in general you have the right to exclusive use. It is precisely because of the monopolistic nature of iprs that transitional protection of this right may lead to technological barriers and technological monopolies, and therefore intellectual property rights generally have durations. Compared to rights such as property rights, intellectual property is “hegemonic”。
Iv. Several areas of error in intellectual property rights
1. Non-violation of non-profit use
This is a misconception that many people share. Under our law, the infringement of copyrights does not require the infringer to have a profit-making purpose, except for the infringement of patent rights requiring the infringer to have a productive purpose. Copyright is a combination of a series of rights, and it is a violation of the right to reproduce, modify, issue, exhibit, etc. Of works of which another person has the right to copyright, regardless of the purpose for which they are committed, provided that they do not fall within the scope of reasonable use or legal authorization. For example, the unauthorized reproduction of the original circle of friends that paste others with original original originality is a reproduction of the work of others, in other words, a violation without the author's authorization or other unlawful obstruction. It is also a violation to use the same trademark on the same commodity, even if you send it free of charge. So let's not say that we don't abuse our rights。
Loss is necessary to claim an intellectual property claim rights
There are also many who believe that even though others have violated their intellectual property rights, they have not caused any economic loss to themselves and therefore cannot claim an intellectual property claim. That understanding is also wrong. It has been argued that an intellectual property claim is a claim of dominance and that the assertion of an intellectual property claim is not premised on material damage to itself, nor requires fault on the part of the perpetrator. That is to say, whenever there is a fact of violation, whether or not it has caused damage to the right-holder, the right-holder may demand that the infringer cease the violation and exclude the harm. Loss is only an element of the claim for damages, not an element of the claim for intellectual property, and this is a side of its hegemonic nature
3. Non-violation by authors is indicated
The reference to the work of others indicates that the author is an essential obligation and is not an impediment to the law. The proper reference to the work of others and the reference to the author and provenance in order to illustrate a problem constituted a reasonable use of copyright and thus prevented the violation of the law, which was why many of the “big ones” had not become defendants. However, attention is drawn to the qualifier “appropriate”, which, if quoted in large areas, is the reproduction of another's work (also known as plagiarism), constitutes a violation of another's copyright。
4. No-faulters
“no one knows is guilty” is a phrase we often say, and the so-called “not knowing” is roughly the same as a bona fide third person. It may be true in the usual domain of tort law, but it becomes very wrong in the face of intellectual property rights, an acety monopoly. An intellectual property claim is a claim of domination, which is distinguished from a general civil tort by the absence of fault on the part of the perpetrator in its constituent elements, in other words, responsibility even if not. In exceptional circumstances, lack of knowledge is only exonerating the infringer from liability for damages, but it does not exempt him from liability for other intellectual property rights violations that cease to infringe and destroy the infringer。
