[summary] is a very important issue in intellectual property law theoretical research. Our academic and substantive communities are divided on the issue. There are obvious flaws in false or false statements. It is therefore argued that the principle of attribution of tort in intellectual property should be applied in this context, including the principle of liability for fault and strict liability. That is, the principle of responsibility for fault is applied when the law expressly provides for fault to constitute a violation, and the principle of strict liability is applied when the law does not provide for fault。
[keywords] principle of attribution of intellectual property tort
“the existence and degree of protection of rights are guaranteed only by recourse to the general rules of civil and criminal law”. The determination of the perpetrator's “tort” is an important basis for the perpetrator's civil liability and for what kind of civil liability, and is one of the key components of the intellectual property tort liability in cases of intellectual property abuse. However, the principle of attribution of tort liability for intellectual property rights is widely divided in academia and does not allow for a uniform view. It would therefore be valuable to address the issue。
I. Main views of the academic community
1. Liability for fault. The principle of attribution of liability for tort in intellectual property rights should be applied. The reason for this is that infringement of intellectual property rights is a general tort and that the principle of fault liability should be upheld in cases where the basic civil law and the law on the intellectual property sector do not expressly state that infringement of intellectual property rights should uphold the principle of liability without fault。
2. No fault in speaking. According to some scholars, article 45, paragraph 2, of the world trade organization agreement on trade-related aspects of intellectual property rights (trips agreement) is quite clear about responsibility for infringement of intellectual property rights (iprs). If my country accedes to the agreement, it must fulfil the relevant international obligations and its legal provisions must be aligned with the content of the agreement. Therefore, our system of intellectual property liability should also apply。
3. The liability for fault and the presumption of responsibility for fault are imputed. According to some scholars, responsibility for fault and the presumption of responsibility for fault in a suit for infringement of an intangible property right should be the principle of duality of responsibility, both of which jointly exercise the mission of establishing responsibility for tort. The specific mode of operation of this system of attribution is that the law grants the right-holder, as plaintiff, the option of assuming that the right-holder is the best judge of his own interests and that he “has the right” to choose his own evidence in order to secure a strong and targeted recovery of damages from the infringer. In such cases, the principle of responsibility for fault applies. At the same time, the right holder may waive this “right” of proof, whereby the court orders the infringer to give evidence, which cannot or cannot be proved to be unfounded, and presumes that the infringer is wrong. In such cases, the presumption of responsibility for fault applies。
4. There is a presumption of duality of responsibility for no fault and fault. From a practical point of view, there are also scholars who believe that the nature of liability for tort damage to intellectual property rights still falls under civil law under our legal system. In the case of the composition of liability for tort damage to intellectual property, if the law does not specifically provide for it, it should be dealt with in accordance with the provisions of the general principles of civil law on the composition of civil liability. The principle of no fault liability for infringement of intellectual property is not currently provided for in the general principles of civil law and in the special law on intellectual property, so that the composition of liability for tort damage to intellectual property should be determined in accordance with the principle of fault liability. However, the principle of presumption of fault can be applied to certain acts that make it difficult to determine the subjective status of the person concerned in the specific context of intellectual property jurisprudence。
5. No-fault and no-fault coordination. According to some scholars, direct, joint and indirect violations are different, providing for the application of the principle of responsibility without fault and responsibility for fault rather than “one-size-fits-all” denial of the former or the latter。
Through the introduction of these theories, we are more sensitive to the controversy in the academic world. This paper advocates the principle of duality of liability, including the principle of responsibility for fault and strict liability, for tort in intellectual property. That is, the principle of responsibility for fault is applied when the law expressly provides for fault to constitute a violation, and the principle of strict liability is applied when the law does not provide for fault。
Ii. A comparative study of foreign legislative theory and judicial practice with respect to intent to infringe intellectual property rights
Tortious intent means: “the subjective situation, such as wilfulness or negligence, in which the infringer violates the rights of others”. When the general principles of civil law were drafted before 1986, china's research on “rights in rem” was at an initial stage, and in the case of china, when the general principles of civil law were published, the copyright act was only formally implemented five years later. It can be said that we were still far from sufficiently aware of the special nature of copyright violations in the context of the enactment of copyright laws, which is even less so in the case of the general principles of civil law. It is therefore clearly inappropriate to assume that all the provisions of the general principles of civil law should be applied in full and without reservation to the copyright law that was enacted at a later stage, when people are aware of its deepening。
Article 106, paragraph 1, of the “torts act” in our general civil code: “a citizen, a legal person, by mistake, infringes upon the property of the state, collective property, property or person of another, shall be liable for civil liability.” at the same time, we refer to the most influential law in the world, the tort clause in the german and german civil code, article 1382 of which states: “any act causing damage to another person is liable to the person whose fault caused the damage to that person”. Article 823 of the german civil code provides that “a person who, by wilful or negligent action, wrongfully infringes on another person's life, body, health, liberty, ownership or other rights shall be liable for damage caused to another person as a result thereof”. After careful study, it has been found that the above-mentioned provisions in the french and german two articles are (actually) “damage” and “fault” (or negligence) as elements of liability for “damage”, whereas our general principles of civil law refer to “damage” and “fault” as elements of all civil liability. In other words, the assumption of civil liability must be based on the actual loss of the injured person and the fault of the injured person. But in our real society, at least our law enforcement officials are well aware that to stop a patent, trademark or copyright violation, there is absolutely no need to look for the “subjective fault” of the perpetrator or the “actual loss” of the injured person, but it is only necessary to establish the facts of forgery, forgery or piracy on production lines or in circulation channels. In japan, which is a civil law system, direct tort liability is established in section 113 (1) (a) of the copyright act in force, and indirect tort liability is established in item b. Japanese copyright scholars have also held that, when the aggrieved person requests cessation of the violation, “the facts of the violation are sufficient and no subjective conditions such as intent or negligence are required”. As for the united kingdom, which is a common-law system, as well as countries such as australia, canada, singapore, new zealand and the commonwealth, the principle of responsibility for infringement of copyright is more self-evident in the united states, when it comes to the division of responsibility for fault and responsibility for no fault, rather than “one-size-fits-all” denial of responsibility for infringement of copyright. In the area of intellectual property, many american intellectual property jurists have stated that “in order to prove the defendant's tort, the plaintiff does not have to prove his fault” and that “only in the case of indirect torts does the fault relate to the judgement”. That is to say, whether or not the violator is aware of his or her rights and whether or not there was subjective intent or negligence at the time of the violation, the court can find the violation if the objective facts of the violation have occurred. As early as 1931, the united states supreme court stated: “the intent to infringe (in the event of a finding of a violation) is not necessary under copyright law”
Iii. A rational framework for the principle of attribution of intellectual property tort
The principle of liability for intellectual property tort should be applied to duality, including the principle of responsibility for fault and strict liability. That is to say, the principle of responsibility for fault applies when the law expressly provides for fault to constitute a violation; the principle of strict liability applies when the law does not provide for fault. The specific mode of operation of strict liability is that an act that infringes the intellectual property rights of another person by entering the protection of the intellectual property rights of another person constitutes an intellectual property right violation unless the perpetrator can raise a legal defence。
As a form of attribution, the principle of strict liability was adopted not only by common law states but also by international treaties. The explicit introduction of this term in the field of intellectual property in our country and the establishment of the principle of strict liability are reasonable. For the following reasons:
1. The principle of strict liability can overcome deficiencies in the principle of fault responsibility
The nature of the infringement of intellectual property rights makes it difficult for the wrong-doer to prove the wrong-doer, and if a comprehensive principle of “responsibility for fault” were truly applied in the area of intellectual property rights, it would be difficult to hold the wrong-doer accountable and the existing intellectual property protection regime would be largely irrelevant. By exempting the victim from the burden of proving the wrong done to the wrong-doer, the strict principle of liability would be able to overcome the shortcomings of the principle of “responsibility for fault” and effectively defend the legitimate interests of intellectual property rights holders。
2. Strict liability, as a descriptive, class of attributes concept, has a broad scope of application and meets the inherent requirements of intellectual property protection regimes
Strict liability does not have the same uniform standard of judgement as responsibility for fault, but rather applies to a wide range of violations that are not linked to one another. Strictly speaking, it is not a notion that corresponds to fault and has a true connotation and a value of legal judgement, but rather a notion of formality. Strict liability is based on a basis that is not “strict” and there is no other standard of uniform attribution, which makes strict liability more broadly applicable. We know that intellectual property rights are not a single right, nor a single item of rights, but rather a cluster of rights consisting of patent rights, trademark rights, copyright rights, etc., and each specific intellectual property right is bound by a combination of multiple powers. At the same time, intellectual property rights belong to the “one-to-one” right, and different rights and obligations may be created in respect of different rights as well as the same rights. The law must take into account, at times, the balance between the interests of intellectual property rights holders and the public in society. The flexibility of contemporary intellectual property laws is a prominent feature. We know that the scope of intellectual property rights per se has been constantly changing, and that the patterns of intellectual property abuse are more difficult to exhaust and remain dynamic. It would also be unrealistic to attempt to establish a universally applicable standard to determine whether the various powers of intellectual property rights constituted a violation. Strict liability is highly inclusive and meets the requirements of intellectual property protection regimes. Civil service home
3. Objective responsibility for fault makes the existence of strict liability more reasonable
There is a different perception of responsibility for fault, subjective fault and objective fault. Since “subjective things are difficult to judge in practice”, many states that have adhered to the principle of responsibility for fault have in practice adopted either a “presumption of fault” approach to the identification of fault, or objective criteria to measure “fault”, which in many cases is in fact strict liability. From this point of view, it is also true that we advocate the principle of strict liability。
The application of the “principle of strict liability” would avoid unnecessary conceptual disputes such as “subjective fault” and “objective fault” and “presumption of fault” and “responsibility for no fault”
Theoretically there is much controversy over “subjective fault” and “objective fault”, as well as “presumption of fault” and “responsibility for no fault”. Sometimes it was a legal provision, and after interpretation by different scholars, there were several different “versions”. However, in any case, it is ultimately based on national law-making. Thus, a single “principle of strict liability” would solve all problems。
The principle of strict liability has been established in our contract law and has provided us with successful experience to learn from
The establishment of strict liability in contract law has proved to meet the needs of contract practice and theory, with good social effects and benefits. The successful “transplantation” of the common-law system of contract law, “strict liability”, in a traditional civil-law country like ours, has undoubtedly set an example for our overall understanding and introduction of “strict liability”。
In addition, the growing convergence of the two legal systems has also laid the foundation for the rational application and widespread application of “strict liability” in our country。
