Foreword, intellectual property research
Researching, writing articles, is what scholars do. I've been working on it for over 30 years. More than 200 articles, some of which are published in authoritative academic journals (of which 27 are published in chinese social sciences, law studies, chinese law) and some of the major news media (including the people's daily newspaper, light daily, china intellectual property, law journal, etc.). The collections of papers from the collections of research on intellectual property fundamentals, research on the frontline aspects of intellectual property and research on the application of intellectual property, which contain most of the papers i have published in academic journals, are representative works for various periods, but do not include statements and interviews in major newspapers. While the vast majority of these articles are devoted to intellectual property rights, a number of private law and the rule of law topics are also listed. The writing spans from the 1980s to the current year of the twenty-first century, mostly from the mid-1990s, reflecting my intellectual property teaching experience。
In recent years, a number of students have asked about intellectual property research methods and asked about so-called “secretaries” of writing. Because of my duties, i have to be a “good teacher” and introduce my graduate and doctoral students to the intellectual property study. At the classroom level, the recording was written, with minor modifications and additions, to the foreword of the book。
Research on intellectual property rights is a subject of study. It cannot deviate from the rationale of civil law, but cannot be confined to the traditional framework of civil law. It is a legal science and speaks french and french, but it cannot lack the necessary relevant knowledge elements. Thus, research on intellectual property begins with an understanding of the fundamental characteristics of intellectual property science. I thought three points should be noted。
One is based on the theory of civil law。
Intellectual property is a new type of civil right and an intangible property title distinct from ownership of property. The basic principles and general norms laid down in civil law should apply to private rights regimes, including, of course, intellectual property regimes. By leaving the civil rights system, intellectual property rights would become a sourceless water, a woodless wood, unable to find their rightful legal belonging. Thus, intellectual property scholars should also be civil law scholars, and intellectual property research must be based on civil law science. Some of our intellectual property scholars have shown undue neglect and even contempt for civil law. We have seen intellectual property writings that have departed from the principles of civil law, depriving scholars of a platform to communicate and communicate. For example, some intellectual property experts, in the principle of attribution of tort damage, interpret “cessation of the tort” as an application of the principle of “responsibility without fault” to such methods of protection of property rights as “eliminate the danger”. According to the german scholar ralenz and our taiwan scholar wang zelig, attribution refers to the “result of the act of burden”, i. E. Damages, as a method of protection of claims. For example, many articles summarize the nature of intellectual property rights as intangible, with the result that exclusivity, temporality and geographicality are derived. In fact, in the context of roman private law, there is a physical separation between objects and objects, i. E., the right to the content of property in the absence of objects. Thus, the fundamental difference between intellectual property and ownership is determined not by its content but by the non-materiality of the object. On this point, mr. Zeng shihsiung of the university of taiwan came to the same conclusion as i did in different fields of study. In the study, the emphasis on differences in the quality of intellectual property does not negate the prescriptive nature of the quality of intellectual property, which is classified as private rights. The basic scope of intellectual property rights must be in the context of civil law in order to be reasonably and scientifically interpreted。
The second is in the context of multidisciplinary knowledge。
Intellectual property rights (iprs) are the product of recent developments in the commodity economy and science and technology, and in many civil rights systems only the most scientific and the most intellectual. The history of the intellectual property system, which has evolved over a relatively short period of time, from the industrial revolution to the information revolution, is based on the scientific and technological revolution, and the history of the system itself is a process of interaction and mutual reinforcement between legal and scientific and technological innovation. The revolution in science and technology had brought about changes in the intellectual property system, research into modern intellectual property and knowledge of modern science and technology. Issues such as “network copyright” “network trademarks” associated with network technology, “network unfair competition”, “genetic patents” based on bioengineering techniques, and new varieties of plants based on modern planting techniques, and map design rights based on integrated circuit technology, cannot be interpreted simply by traditional theories, nor can they be addressed by applying traditional systems. The intellectual property regime has a modern state of the art. Knowledge of new science and technology and exploration of new legal issues is the scientific spirit that intellectual property scholars should possess. It should also be noted that modern intellectual property rights are a vast institutional system: copyright exists in the field of cultural creation and is closely linked to cultural innovation and industries; patent rights arise in the field of technological applications and are closely linked to science, technology and innovation; and trademark rights operate in the field of business and commerce, involving the marketing of goods and market trade. Under the age of the knowledge-based economy, intellectual property rights are linked to a country's economic development, scientific progress, culture and education prosperity, while in the international context of economic globalization, intellectual property protection is related to international politics, international economics and trade, international cultural and scientific exchange and cooperation. In this context, the study of intellectual property rights from the point of view of legal theory is a matter of course; it is also necessary to look at intellectual property rights from a variety of perspectives and perspectives, taking into account the theories of political science, sociology, ethics, economics, management and policy science。
Thirdly, it targets fundamental theoretical and practical issues。
Intellectual property is a theoretically systemic and mature law. Because of its short history and frequent changes, the basic scope, rationale and underlying issues are being explored. Some scholars argue that intellectual property rights do not have their own theory, which means, firstly, that they are too difficult and, secondly, that they are highly divisive. This is why intellectual property research displays theoretical charisma distinct from traditional property rights research, and the academic requirements for theoretical and institutional innovation are put to intellectual property scholars. At the same time, intellectual property rights are a very practical law. Every institution and article of intellectual property has a deep foundation in social life, reflecting the deep legislative intent of the founders. According to goethe, “theory is gray and the tree of life is green”. We can say that intellectual property law is boring, but the world of intellectual property is rich and diverse. Applying intellectual property norms to address legal issues such as the production, dissemination, use and protection of knowledge is an academic task and a social responsibility for intellectual property scholars. On the basis of the above considerations, i believe that the question of intellectual property rights, which is the subject of the study, comprises three categories: first, the conceptual dimension, dealing with issues such as the legal value, legal function, legal principles of intellectual property; second, the normative dimension, including issues such as the legal regime of intellectual property, legal rules, legal techniques; and, lastly, the operational dimension, which relates to the interpretation of intellectual property law, its application, legal activities, etc。
For more than three decades, our intellectual property research has moved from mere learning and transplantation to self-reliance and innovation in exchanges and collisions with western methodological thinking, leading to a chinese-specific intellectual property doctrine that provides an important conceptual basis for intellectual property institution-building, policy operation and strategic implementation. The scientific and applied research on intellectual property rights (iprs) has led to considerable progress: the conceptualization of intellectual property fundamentals has matured from the beginning of the 1980s, the reflections of the 1990s to the beginning of the twenty-first century; attention has been paid to the trend towards internationalization of intellectual property rights, focusing on the imbalance of east-west interests, conflicts between intellectual property and human rights, and institutional changes resulting from the protection of traditional resources resulting from the implementation of trips agreements; responses to intellectual property modernization claims, facing the challenges of the current intellectual property system in the form of cyber and genetic technologies have become more timely; the strategic engineering of intellectual property rights has been promoted, involving strategic design and implementation, and efforts have been made to follow up on it; and the improvement of china's intellectual property regime and application of the law, with legislative recommendations, interpretation and active participation。
Our intellectual property scholars, while focusing on advanced foreign legal concepts and undertaking home-grown theoretical innovations, have also sought to find ways of interpreting laws and applying policies that are appropriate to the chinese linguistic and cultural context, thus creating a methodological system that includes a variety of analytical tools. “to do what is best, it must be done first.” it is important to understand and master the analytical tools in intellectual property research. Based on my experience and experience with others, i would like to present the following three main analytical approaches。
The first is the method of historical and logical analysis。
The historical analysis method is a longitudinal analysis and dynamic study of the general patterns of the generation, development and transformation of the legal system, using scientific historical perspectives. In our historical analysis, we primarily look at the historical type of legal system, the social basis, the context of the times and, as far as possible, look for regular and trend-oriented things in this historical analysis. Knowledge of the ancient times, history. In intellectual property research, some rationales, rules and analyses are often traced back to ancient rome, recent british and modern america. This historical analysis is necessary and illustrative. As already stated, some intellectual property scholars have interpreted the term “responsibility” for tort liability broadly, arguing that a “prohibition order” is not conditional on fault and is based on the principle of no fault. Indeed, the debt for damages relates to fault and no fault. From roman aquilia to modern civil law, the principle of responsibility for wrongs was observed. At the time of the industrial revolution, the principle of responsibility without fault had emerged in order to fill the unfortunate damage. If this view of intellectual property scholars can be established, then the history of civil law and tort law will have to be rewritten. The methodology of historical analysis is therefore an effective validation tool。
The logical approach is to limit, distinguish, divide and rank the concepts of legal norms, and to detect, interpret, justify and structure legal phenomena. Logical analysis is the analytical tool that we often use. The main ones are the following: first, definitions. Many of the concepts contained in the articles and articles are the starting point of our research and the starting point of intellectual property research. The second is the distinction, including between words, things and meaning. The third is the division, which includes the division of words and things, analysing their similarities and differences. Fourth is the argument. That is what we usually call the big premise, the small premise and the conclusion. Fifthly, it is classified and summarized, for example, by making judgements on the main and secondary causes, conducting questionnaires and making conclusions. Logical analysis is a very important and frequently applied research methodology that is useful for the analysis of the internal structure of a system or for the construction of a system. In other words, the systemic construction of intellectual property rights must be based on an understanding of the hierarchy of rights. The classification of the right to disseminate information online, for example, can be seen at a hierarchical level as: the right to disseminate information online - the right to property - the right to copyright - the right to intellectual property - the right to property - the civil right. In addition, historical and logical methods of analysis are often well integrated. For example, the emergence of a modern intellectual property system has a trajectory of integrated technological, economic and legal development, namely, the institutionalization of a system of titling rights over the commercialization of knowledge goods produced by society in the form of scientific and technological advances, which is the unity of history and logic。
The second is the methodology for normative and empirical analysis。
The normative approach is to make qualitative analyses of laws based on certain norms and theories, to study what legal activities should be and how social law issues should be addressed. This is a logical analysis. In normative analysis, a value judgement is first to be put forward as the basis for legal theory and policy formulation. Here, there is a value judgement and a norm. For example, the value objective of the law was, in the past, primarily legal justice in the philosophical sense of law. Legal economics, however, believes that there are efficiency objectives beyond justice. Economists have many criteria for how to achieve legal benefits, the most influential of which is the paretto standard, which is “to benefit at least one party in a transaction, without damaging others”. In a transaction, the parties have three options: one to harm themselves, which is the dumbest; the other to harm themselves, which is not desirable; and the third to be the best way, which is not to harm others, or both, which is what we usually call “win-win” or “win-win”. Intellectual property law pursues the legislative purpose of “protecting the rights of creators and promoting the dissemination of knowledge”, and is in fact an expression of the twin values of justice and efficiency. The normative approach could be used not only to analyse a legal act itself, the course of legal activity, but also to analyse the design and construction of a legal system。
The empirical analysis method is the quantitative analysis of laws using certain techniques and methods. Its task is to describe how legal phenomena and social and legal problems are actually resolved. This is a solid analysis. In this analysis, facts are used to test the reasonableness, correctness and scientific nature of theories and rules. Empirical analysis requires not only a normative philosophy, but, more importantly, the quantification of specific issues, including basic data collection, mathematical modelling, etc., to make our analysis accurate and reliable. In legal research, empirical analysis is a very weak link. The study of the legal system of rural land, written by professor zhu souli and edited by professor chen xiaojun, reflects the glamour of empirical analysis, and the findings based on the survey data are very convincing. In intellectual property research, empirical analysis needs to be strengthened. For example, performance analysis of patent implementation of inventions, analysis of the rate of software piracy, analysis of the ratio of legal costs to illicit gains in tort, etc., require the use of empirical analysis tools。
Third is the methodology for comparative analysis and the methodology for the explanatory analysis。
The method of comparative analysis is a comparative study of the types, traditions, concepts, principles, rationales, norms of different legal systems, including the analysis of differences and similarities in legal systems, conflicts between relevant legal systems and the analysis of means of settlement, and is aimed at different national and regional legal systems. Comparative analysis is a common method in academic research. Mr. Shen zongling, in his book " general principles of comparative law " , spoke of the culmination of comparative research in the first codification of the civil code in the nineteenth century. Civil law scholars on the european continent have examined and compared civil law systems in different countries, and their findings have contributed to the formation of the french civil code of 1804 and the german civil code of 1896. The trend towards integration and internationalization of the contemporary intellectual property regime demonstrates the global universality of its basic principles and primary rules. However, integration and internationalization do not amount to the unification of global norms on the content of intellectual property protection, standards of protection, levels of protection, etc. It should also be noted that intellectual property regimes have different fates in different types of countries. These include not only the legal value, legal form, science and soundness of the legal content involved in the institutional choice, but also the level of social development involved in the institutional implementation, the policy system and the coherence and adaptability of the cultural environment. A comparative analysis of these issues may be the most useful tool。
Annotation analysis is the subject of legal literature, interpretation, description and analysis of legal spirit, legal principles, legal norms. According to the roman jurist's classification, the explanatory analysis includes a moral and theoretical interpretation. Historically, the interpretative approach began in the twelfth century, when italian scholars first adopted the interpretative approach to the roman law literature. The early commentary to the jurisprudence, the chapter-by-chapter, paragraph-by-paragraph interpretation of roman law, was more of a textual interpretation than was the case with formalism and mechanism. The late note law school adopted a theoretical interpretation approach, focusing on the true meaning of legal systems and legal norms. I think both methods of interpretation are useful in intellectual property research。
In fact, there are many methods of legal research, and here i have just listed three-to-six approaches. Intellectual property research should be carried out with a rigorous approach and be accompanied by a mastery of learning. The study of research methods is simply a matter of exploration and appreciation. For more than 30 years, my heart has been in vain, and i have written it for your information。
