Why should we establish an international mechanism for intellectual property protection under the WTO?
Before the start of the "Uruguay Round", intellectual property issues were not involved. Due to economic globalization and the increasing international With regard to trade relations, developed countries and my country have begun to pay attention to the protection of intellectual property rights.
The protection of intellectual property rights is still very weak, mainly for two reasons.
The first is the domestic aspect. Although the intellectual property legal system has been established for hundreds of years, as of the 1980s, some countries still had incomplete intellectual property legal systems. Even in countries with established intellectual property laws, there are considerable problems. Many countries often impose many restrictions on foreigners to obtain intellectual property protection in their own countries and require them to complete some complicated procedures, making it difficult for foreigners' intellectual property rights to be legally protected in their own countries. At the same time, there are great differences in legislation between countries, which also hinders the protection of intellectual property rights.
The second is the international aspect. From the conclusion of the Paris Convention in 1883 to the beginning of the Uruguay Round negotiations, a series of international treaties emerged over more than a century, forming an international protection system for intellectual property rights. As far as the status of this system is concerned, although it has played a great role in the international protection of intellectual property rights, it still has many shortcomings and needs continuous improvement. The main problems are as follows:
(1) The scope of influence of multilateral international treaties is too small. Except for several major conventions, such as the Paris Convention, the Berne Convention, the Universal Copyright Convention and the Convention Establishing the World Intellectual Property Organization, which have many contracting parties, many other international treaties have too few parties, such as the Trademarks The Registration Treaty has only a few parties, making it difficult to play its role.
(2) Many international treaties themselves have serious flaws. According to the three international conventions that currently play the most important role in the field of international protection of intellectual property rights - the Paris Convention, the Berne Convention and the Universal Copyright Convention, they themselves have great shortcomings. First, each convention does not have a strong agency to ensure its implementation. Although most of the major conventions are administered by the World Intellectual Property Organization, the organization has not established a strong guarantee system to ensure that all contracting countries can comply with the conventions. Secondly, each convention does not stipulate the punishment that should be imposed when a state party violates the convention. As a result, when a state violates its obligations, other state parties are helpless and lack effective retaliation or punitive measures. Third, the scope of reservations allowed by many conventions to contracting states is too broad, causing the provisions of the conventions to exist in name only. Fourth, many convention provisions are too general, leaving a lot of room for contracting states to evade their obligations.
(3) The conventions lack mutual coordination mechanisms and cannot conduct extensive international cooperation in the field of intellectual property protection.
(4) The existing international protection system does not meet the requirements of the new technological revolution. The existing system mainly provides protection for patent rights, trademark rights, copyrights and neighboring rights. Some achievements of new technological revolutions, such as life engineering, microelectronics technology, etc., have not yet been included in this system.
Inadequate international protection of intellectual property rights has posed a serious obstacle to international trade.
First of all, with the continuous development of high and new technologies, goods in international trade, especially goods exported from developed countries to developing countries, have a high technical content and often contain many patented technologies; and most The level of intellectual property protection in developing countries is not very high, and the legal protection of these high-tech products is weak, which affects the export of high-tech products to these countries.
Secondly, the share of technology trade and copyright trade in international trade continues to rise, and weak protection of intellectual property rights has affected the normal development of technology trade and copyright trade.
Finally, with the development of international trade in services, the requirements for the protection of trademarks, trade names, trade secrets and anti-unfair competition are getting higher and higher. However, unified international standards have not yet been formed in these aspects. The development of trade in services constitutes an obstacle.
(2) Principles and Objectives of Intellectual Property Negotiations
The Ministerial Declaration on “Trade-Related Intellectual Property Rights Issues, Including the Issue of Trade in Counterfeit Goods” states that,
< p> “In order to reduce distortions and obstacles to international trade, taking into account the need to promote the full and effective protection of intellectual property rights, and to ensure that measures and procedures for the implementation of intellectual property rights do not themselves constitute obstacles to legitimate trade, negotiations should aim at clarifying the provisions of the Agreement and formulate new rules and disciplines as appropriate.The negotiations should aim at developing a framework of multilateral principles, rules and disciplines to deal with the international trade in counterfeit goods, taking into account the work already undertaken in the General Agreement.
These negotiations shall be without prejudice to other complementary actions that may be taken by the World Intellectual Property Organization and other bodies in addressing these issues. "
As to the nature of intellectual property rights, the fourth paragraph of the preamble of the agreement gives a clear answer - intellectual property rights are private rights.
. Intellectual property rights should be protected by civil law
The term "private rights" is rarely used in the fields of legislation, judicial practice and legal research in my country. The equivalent meaning of "private rights" should be "civil rights". Therefore, in the field of civil law and intellectual property research in my country. Intellectual property rights are generally regarded as a type of civil rights. The statement on the nature of intellectual property rights in the TRIPS Agreement further clarifies the conclusion that since intellectual property rights are civil rights, they should naturally be regulated and protected by civil law. It is also consistent with the civil legislative practice.
It should be noted that although intellectual property rights are protected by the general principles of civil law, it does not mean that intellectual property law is also a branch of civil law. . Nowadays, many people in the academic community have incorporated intellectual property law into the civil law system. This is correct from the perspective of the nature of rights, but from the perspective of the legal department, it is highly questionable whether it belongs to the civil law system. Regarding the question of which department, we believe that the conclusion should be drawn based on the classification of the norms of intellectual property law.
The basic norms of intellectual property law, whether copyright law, trademark law or patent law. There are no more than two categories: norms about the rights enjoyed by right holders and their protection; and norms about the conditions and procedures for rights holders to obtain rights.
Norms about the rights enjoyed by right holders and their protection. It belongs to the category of what people usually call "substantive norms". From the perspective of its sectoral classification, since these norms involve issues such as the content, exercise, and protection of intellectual property rights, and intellectual property rights belong to civil rights, these norms They should be the same in nature as the regulations on the content, exercise and protection of civil rights in the General Principles of Civil Law. Therefore, as far as this part of "substantive regulations" is concerned, they should be part of the civil law.
The conditions and procedures for obtaining rights fall into the category of what is commonly referred to as “procedural specifications.” This part of the specification mainly involves the procedures and procedures for the right holder to obtain intellectual property rights and the rights and obligations arising from the procedures and procedures. The relevant formalities and procedures that need to be performed are administrative procedures in nature, and these norms should be included in the scope of administrative law.
All intellectual property laws are composed of at least these two basic norms. Looking at the status of two different norms in intellectual property law, we will find that, except for the copyright laws of those countries that implement automatic protection systems, the dominant position in intellectual property law is not those that stipulate the rights of right holders and their rights. It can be concluded that it is wrong to generally classify intellectual property law into civil law. Judging from the nature of its main norms, it should be included in administrative law. However, as a legal norm, whether intellectual property law should be included in civil law and administrative law, or be a separate system, does not seem to make much sense in practice since intellectual property rights. It is a type of civil right, and its protection should be the same as that of civil rights. As far as intellectual property is concerned, its protection is mainly achieved by stopping other people's infringement. From the rights content we have included in this book about specific types of intellectual property rights, we can find that the basic right of the owner of intellectual property rights is to prohibit or prevent others from performing relevant acts without their permission.
. But personally, I think intellectual property law should be classified as economic law, but the necessary requirement for intellectual property rights is to be able to reflect objective market value. That is to say, the so-called intellectual property rights can be measured in specific currencies, otherwise no one will apply for a patent and make a profit. Our country has made a lot of efforts in intellectual property rights, but existing problems cannot be ignored. Weak government supervision and lack of strong enforcement means, as well as the country's so-called pilot projects, have resulted in a huge difference in intellectual property protection between developed and underdeveloped regions. This has to be said to be a pity. What is even worse is that in order to purely pursue economic effects, our country has allowed private enterprises to copy and infringe other countries' intellectual property rights.
The more well-known one is the copycat Apple mobile phone, priced at 998 yuan. A copycat of the Angry Birds theme park; even a copycat of New York City. A trend of copycats is rampant. Our country actually agrees with this type of copycat infringement. This is obviously a step backwards. No wonder the WTO or the United States always find trouble for our country. This nation's cognitive error cannot be changed, and China will always be able to look back on other countries. After joining the World Trade Organization, my country's intellectual property protection faces new opportunities and challenges. Our rights and obligations are that when our country has disputes over intellectual property rights with other contracting parties, we can apply the unified dispute settlement mechanism of the WTO. On the one hand, this dispute settlement mechanism helps to reduce or to a certain extent curb the unscrupulous unilateral retaliation frequently used by a handful of developed countries in the past, allowing us to resolve intellectual property disputes that may arise with developed countries. Disputes are resolved through multilateral negotiations within the framework of the agreement; on the other hand, it also puts forward higher requirements for my country's intellectual property protection. If we fail to provide effective protection for the legitimate rights of intellectual property rights holders of relevant contracting parties, we may be terminated from concessions and other preferential treatment, or suffer cross-retaliation and cross-sector retaliation. Strengthening the protection of intellectual property rights, especially effective and powerful crackdowns and sanctions on counterfeiting and piracy, has become an obligation that our country must fulfill after joining the WTO. Intellectual property rights, as an intangible property right, are rights enjoyed by intellectual workers in accordance with the law on their achievements. In today's international economy and trade, the areas involved in intellectual property protection are gradually broadening and their importance is gradually increasing. In future international trade competition, intellectual property rights will be the focus of competition. To sum up, it is reasonable and necessary to establish an effective international protection mechanism for intellectual property rights.
(I have sacrificed a lot of points, I hope the answer will be accepted)