What kind of intellectual property legislation is suitable for China?

Wu Handong

The modern civil code was modified on the basis of the Roman law system, and intellectual property legislation is closely related to modern civil law. The classics failed to have the chance of history. The modern civil code codification movement attempts to adopt the intellectual property system, but so far there has been no successful legislative example. Contemporary intellectual property law is a comprehensive, open, and most innovative system of legal norms, and it is more appropriate to adopt the form of special civil laws.

The relationship between the intellectual property system and the future civil code has always been a controversial issue. Many civil law scholars advocate integrating a property rights system including intellectual property rights within the framework of the Civil Code. The reason is that the means of protecting intellectual property rights are basically civil in nature, and this right should be treated equally with other property rights, and It should be incorporated into the Civil Code for regulation, and foreign legislation has already provided for intellectual property rights in the Civil Code. my country's General Principles of Civil Law stipulates various types of intellectual property rights in the "Civil Rights" section, so this system should become an integral part of the Civil Code. The author has different views on this. This article attempts to use the Paradigm Civil Code as a reference system to explore the relationship between intellectual property legislative style and the codification of the Civil Code from the perspective of combining historical investigation and current situation analysis, hoping to provide some useful information for the design of the Civil Code system. ideological data.

Missed: the compilation of modern civil codes and the emergence of the intellectual property system

With the establishment of the capitalist system in the West, all major capitalist countries have successively Intellectual property legislative activities began. The most representative examples of legislation include: the United States’ Federal Copyright Act of 1790, France’s 1793 Author’s Rights Act, Germany’s 1837 Law for the Protection of Owners of Scientific and Artistic Works against Copying or Imitation, and Japan’s 1899 "Copyright Law"; patent laws enacted by the United States in 1790, France in 1791, Germany in 1877, and Japan in 1885; the United Kingdom in 1875, the United States in 1870, Germany in 1874, and Japan in 1884. Trademark Law enacted. These intellectual property legislations and the compilation of modern civil codes have not had a historical opportunity.

Whether in the United Kingdom or the United States, intellectual property law is in the form of statutory law. It has always been an independent property legal system and does not involve the codification of civil codes. Civil law countries have inherited the tradition of codification from ancient Rome. As modern paradigm civil codes, the compilation activities of French Civil Code and German Civil Code were completed in the early and late 19th century respectively. Their civil code systems were based on the "Ladder of Laws" or "Collection of Doctrines" of Roman law; their intellectual property legislation was as early as The Civil Code was generally in place before the codification, and most of these emerging property systems were "imported" from Britain. Therefore, the paradigmatic civil codes of modern continental Europe failed to incorporate the intellectual property system into their systems. The legislative motivations can be explained from the following aspects.

1. The modern intellectual property system is the product of the evolution from privileges to private rights

The birth of modern intellectual property law has gone through the long-term pain of the feudal franchise system for nearly three hundred years. Feudal franchises related to the protection of spiritual products include printing exclusive rights and product franchise rights. In the form of an edict or writ, it grants printers an exclusive license to publish or gives operators the right to specialize in manufacturing and selling a certain product. The beneficiaries of this feudal franchise system were mainly printers, business owners, and rulers who issued licenses, rather than authors or inventors engaged in intellectual creation activities. This system not only met the needs of feudal rulers to confine ideology and culture and control economic interests, but also determined the regional characteristics of original intellectual property rights. The significance of the existence of feudal franchise lies in its historical connection with the emergence of the modern intellectual property system. Modern bourgeois state legislation has transformed intellectual property rights from the realm of public law into the realm of private law, and from privileges to private rights. While the legal system has undergone qualitative changes, it has also retained a certain historical inertia, that is, most intellectual property rights have the characteristics of being granted by the state. The state-granted nature of such rights is not inconsistent with the origin of rights. American scholars believe that creative activities are the “source” of intellectual property rights, while national laws and regulations are the “origin” for the establishment of intellectual property rights. Therefore, intellectual property rights are a legally limited exclusive right.

The social background in which the intellectual property system emerged is different from the private law environment in which traditional property rights laws exist. Therefore, modern legislators have adopted different methods in the design and arrangement of the legal system. The shift from privileges to private rights reflects the changes in the attributes of intellectual property rights in modern times, but it does not mean that intellectual property rights adopt the same legislative form as other property rights.

2. The modern intellectual property system is the result of the "dematerialization revolution" of property in the field of private rights

In the Roman private law system, the property rights system was a material rights structure system. The Romans built a system of property and property rights based on the understanding that the main components of property were limited to physical objects. They use objects as object categories (mainly tangible material objects - tangible objects, but also include intangible institutional products, that is, property rights other than ownership - intangible objects), and on this basis, they design a form of ownership As the core property rights system, a "property law" system with property rights and creditor's rights as the main content has been established. With the development of modern commodity economy, so-called abstract and dematerialized property types have emerged in the composition of social property. "Intellectual property" with knowledge, technology, and information as its main content is different from the movable and immovable properties in the previous material form. It is an alternative object different from the traditional sense. Hegel wrote in "Principles of Legal Philosophy": Spiritual skills, scientific knowledge, art, inventions, etc., can all become the objects of the contract and be treated the same as the things recognized in the sale. Although this kind of possession can be traded and concluded like a thing, it is also an internal spiritual thing. It is very obvious that the traditional materialized property rights structure cannot accommodate abstract and dematerialized intellectual property. The French Civil Code in 1807 inherited and developed the tradition of Roman law, dividing objects into tangible objects and incorporeal objects, and at the same time expanded the scope of incorporeal objects. The latter specifically refers to rights with property content, which, in addition to claims and equity stipulated in the Civil Code, also includes emerging intellectual property rights. Intellectual property rights were originally classified as movables, but were later classified as real estate with more important value. In 1896, the German Civil Code inherited the tradition of Roman law and formed its own German national style. Its legislative documents do not recognize intangible objects, and the so-called objects only involve the concept of tangible objects. However, in the doctrine, knowledge products can be called “intangible objects”, but they cannot be classified into the object category of property law, but are only the objects regulated by intellectual property law.

In short, the establishment of the intellectual property system is a profound institutional innovation and change in the field of property rights since Roman law. Both the "Legal Ladder System" (French law) and the "doctrinal compilation system" (German law) are only transformations based on the codification of Roman law. Intellectual property, an emerging property rights system, has not entered the scope of the traditional civil code system.

3. The modern intellectual property system has not yet formed a systematic property rights group

Intellectual property is a right that people enjoy in accordance with the law based on the results created by their intellectual activities and the marks and reputation in their business and management activities. It is a A property rights system that falls within the scope of civil law but is relatively independent. Summarizing all rights from the field of intellectual activities as "intellectual property rights" was first seen in the French scholar Kapuszov in the mid-17th century, and was later developed by the Belgian jurist Piccard in the 19th century. Picardie believes that intellectual property rights are a special category of rights, which are fundamentally different from ownership of things. In the modern legal period, the systematization of the rights system in the name of intellectual property rights was not realized in legislative activities. In other words, “Intellectual property law is a general term for legal norms such as patent law, trademark law, and copyright law. This term is fictitious and is a theoretical generalization.” From the mid-17th century to the 19th century, it was the period of the rise of the modern European intellectual property system. Patent law, copyright, and trademark law are gradually emerging in Western countries. Without exception, the above-mentioned laws all appear in the form of separate legislation. There is neither a unified intellectual property code nor the integration of various laws into the civil code. The French Civil Code of 1804 clearly affirmed that trademark rights should be protected in the same way as other property rights. This provision is merely a civil law positioning that trademark rights are property rights, and has no legislative significance as an independent part of the Civil Code. It was under the guidance of the basic law of the Civil Code that France promulgated the trademark law with historical significance and international influence in 1857. Needless to say, there are undoubtedly difficulties in legislative technology to systematically integrate various intellectual property rights and make them an integral part of the Civil Code.

In this regard, French scholars pointed out, “In most cases, tangible property is integrally placed within a system of single legal rules for adjustment. For example, ownership always has the same content when it comes to tangible real estate or movable property. Admittedly, the two The status of different types of property is not always the same, but this does not deny the existence of some general rules for the ownership of tangible property with rich content." "On the contrary, intangible property has different properties, and they cannot be placed in the same legal system but can only It is placed in a series of independent and different systems and exists for a certain period of time.” It can be said that due to technical reasons in civil legislation, modern legislators did not integrate patent rights, copyrights, and trademark rights into one system as they did in constructing a property rights system. A comprehensive and unified intellectual property system.

The compilation of the modern civil code must be called "Roman". Property rights such as property rights, creditor's rights, inheritance rights, etc. can all find their prototypes in the Roman private law system. However, intellectual property rights are difficult to find in the traditional Roman private law system. integrated with material property in the system. Based on the tradition of codification since Roman law and the incompetence of legislative technology, intellectual property failed to appear as a systematic rights system in the paradigm civil code of modern society.

Not a paradigm: the modern civil code’s acceptance of the intellectual property system

Since the 20th century, the intellectual property system has made great progress: the basic norms have been continuously improved, and the scope of protection has been continuously expanded. , the trend of integration and modernization is becoming increasingly obvious. At the same time, some countries in the civil law system tried to incorporate the intellectual property system into their own civil codes, which reached its climax in the second civil code codification movement that emerged in the 1990s. Some scholars in our country call it a huge progress in the compilation of civil code, which makes up for a major shortcoming of the modern civil code. Some scholars take this legislative example as a paradigm and advocate that a unified property rights system including intellectual property rights be stipulated in the future civil code. The author has doubts about the above point of view.

Since the 20th century, several representative civil codes have transformed and made breakthroughs in the traditional property rights system, and stipulated intellectual property rights in different styles and methods. This is undoubtedly an important step in the compilation of civil codes. an institutional innovation. This change is due to people's understanding of the essential attributes of intellectual property. Historically, intellectual property rights have experienced a development process of "feudal franchise - spiritual ownership - intangible property rights"; today, intellectual property rights have become private rights generally recognized by countries around the world, and are a new type of civil rights. The author believes that intellectual property rights are rights-based and institutionalized forms of property rights for intangible property in the form of knowledge under civil law. The immateriality of the object is the essential characteristic of intellectual property rights, but the basic attributes of its private rights are not substantially different from property rights, creditor's rights, etc. In this sense, the motivation of legislators to place intellectual property rights and other civil rights in the Civil Code is understandable. The problem is that due to the characteristics of intellectual property rights and the many difficulties in legislative technology, it is difficult for the Civil Code to integrate intellectual property rights into its system. The drafters of the existing Civil Code have adopted two approaches: First, all relevant rules on intellectual property rights have been incorporated into the Civil Code, which is undoubtedly a shift in the position of legal norms. Since it involves the handling of many public law norms, this method is difficult to apply to all intellectual property systems (such as Vietnamese law); second, the patent application rules and several important systems are abstracted from various types of intellectual property rights and stipulated in the Civil Code. However, various specialized laws are retained at the same time. This type of method retains the purity and formal beauty of private rights legislation to a certain extent, but it has little substantive significance and is often inconvenient in application (such as Italian law). Generally speaking, the modern civil code's acceptance of the intellectual property system is of historical significance, but it is not worthy of imitation.

Civil Special Law: The Best Choice for Intellectual Property Legislation

Standalone legislation is a common practice for intellectual property legislation in most countries in the world. It appears in the form of a special legal system. In countries with civil law systems, it is a special civil law under the Basic Civil Law.

At the end of the 20th century, France, which adopted the tradition of separate legislation, compiled 23 separate laws and regulations related to intellectual property into a unified code, which is the 1992 French Intellectual Property Code. Some scholars believe that this code is the first code in the field of intellectual property protection in the world, and may become a typical example of the general separation of intellectual property law and civil law in the 21st century. The French Intellectual Property Code is not only the crystallization of more than 200 years of relevant legislative experience since the French Revolution, but also the result of institutional innovation in response to contemporary economic and technological development. Its legislative achievements are worthy of attention.

However, this code does not change its basic status and essential attributes as a special civil law. The reasons for this can be analyzed from the following two aspects.

First of all, French intellectual property law, civil law, and commercial law still have a relationship between basic law and special law. Dr. Huang Hui, the translator of the "Intellectual Property Code", wrote: When the French Civil Code was promulgated in 1804, the importance of intellectual property was not as prominent as it is now, and the Civil Code did not have special provisions for intellectual property. Therefore, after France decided to adopt separate legislation on intellectual property rights, it paid great attention to its relationship with general laws such as civil law and commercial law, and achieved good results. For example: Intellectual property rights are a kind of intangible property rights, and many provisions of the Civil Code on tangible property rights cannot be directly applied to intellectual property rights; in order to protect the rights and interests of authors from being harmed, there are a lot of restrictions on freedom of contract; labor contracts related to intellectual creation do not affect the author's enjoyment of rights Moral rights and ideological rights; there are also special provisions regarding the relationship between copyright, marriage and inheritance that are different from general law. Apart from the above exceptions, the general principles stipulated in the basic law of the Civil Code still apply. This shows that the French Intellectual Property Code and the French Civil Code are two codes with separate systems, but they are not two codes with parallel status. They are still a relationship between basic law and special law. In the pluralistic system of private law, the Civil Code exists as civil common law or basic law, and it stipulates general issues of private rights. The Intellectual Property Code is a special law, which makes special provisions on special issues of intellectual property. The significance of making the above distinction between the two codes is that in terms of legal application on intellectual property issues, the application of the Intellectual Property Code should take precedence over the Civil Code. If there are special provisions for the former, its norms shall be applied first; if there are no special provisions, the norms of the Basic Law shall apply. It can be said that although the Intellectual Property Code is named a code, it does not change its basic status as a special civil law.

Secondly, the French Intellectual Property Code is a special form of systematization of specialized regulations. A code in the general sense is not a simple summary of existing normative documents, but a systematic legal document that has been processed and organized based on the original legal norms. French legislators have integrated and revised various separate pieces of legislation on intellectual property to achieve the basic requirements for codification. The French Intellectual Property Code has two advantages in legislative technology: first, the system is complete, and second, the content is harmonious. The code is divided into three parts: the first part is literary and artistic property rights, which stipulates copyrights, neighboring rights, database author rights, etc.; the second part is industrial property rights, which stipulates design rights, invention patent rights, and technical secret rights. , integrated circuit layout design rights, new plant variety rights, trademark rights and other marking rights, etc.; the third part covers the application in overseas territories and Mayoral territories. In terms of its basic system, the Code covers almost all the contents of modern intellectual property rights. The Code also better handles the internal relationships of various intellectual property systems and avoids various conflicts that arise in the original separate legislation. For example, computer programs should be protected by copyright and shall not be granted patents; the protection of database producers is independent of the protection of databases or their components by copyright; new plant varieties are not protected by patents but can obtain special rights; relevant copyrights, design rights, and personal rights Marks with prior rights such as geographical indication rights, trade name rights, etc. shall not be used and registered as trademarks. However, the French Intellectual Property Code obviously misses an element of codification, that is, it lacks principles and rules that are uniformly applicable to various intellectual property systems. Legislators have failed or may not be able to design a general principle that is the same as the Civil Code. As translator Dr. Huang Hui pointed out, “When the Code was promulgated in 1992, it only brought together the laws of various intellectual property departments at that time, and the system remained independent of each other. When the Code was revised in 1994 to strengthen anti-counterfeiting efforts, it only followed This method". It can be seen that in terms of legislative technology, the French Intellectual Property Code is a collection of various regulations and a systematization of special regulations. It does not change the fundamental nature of the intellectual property system as a special civil law.

The French intellectual property system, which appears in the form of a code, has not gone far in the relevant legislative style. From a global perspective, civil special laws are still the preferred model for intellectual property legislation in countries with civil law systems. The author believes that the above choices were made mainly for the following reasons.

First, modern intellectual property law is a comprehensive system of legal norms.

Since its inception, the intellectual property system has been a specialized law characterized by comprehensive legal norms and diverse legal sanctions. It is significantly different from the Basic Civil Law as the Civil Code. The intellectual property system is originally a substantive law that protects the rights of creators. However, legislation generally stipulates procedures for obtaining rights, procedures for changing rights, procedures for managing rights, procedures for rights relief, etc. That is to say, the content of procedural laws and procedures are stipulated in the substantive law. Law exists based on substantive law. The intellectual property system is originally a private law that regulates individual intellectual property rights. However, the legislation often includes public law norms such as administrative management, administrative penalties, and criminal sanctions. The legislative technology has the characteristics of combining private law and public law norms. It is true that the particularity of intellectual property legal norms does not affect its essential attributes as an integral part of the civil law system. However, due to the particularity of intellectual property regulations, it is necessary to legislate this comprehensive law separately from the Civil Code. If all intellectual property systems are included in the Civil Code, the large number of procedural norms and public law norms will make it difficult to coordinate the system of the Civil Code, and the relevant provisions will be incompatible in nature, and the Civil Code will not be able to achieve its formal goals. "Aesthetic requirements". If the intellectual property systems are incorporated into the Civil Code and enacted separately according to their different normative natures, it will cause the same legal system to be artificially divided, which will only increase the inconvenience of legal application.

Second, modern intellectual property law is an open system of legal norms. Compared with copyright, patent rights, and trademark rights covered by modern law, modern intellectual property law is already a very large legal system. To use the provisions of the Convention Establishing the World Intellectual Property Organization to express it, it covers everything in industry and science. , the sum of the rights system generated by intellectual activities in the field of literature or art. Since the rise of the new technological revolution in the mid-20th century, the knowledge economy has not only given birth to a new property concept of "knowledge = wealth", but also promoted a new intellectual property system. This is mainly reflected in two aspects: first, the "edge protection law", which adopts several rules of patent rights and copyrights and creates a new system, namely "industrial copyright", which includes the exclusive right to the layout design of integrated circuits. The second is the "individual protection law", which is to set up "quasi-patent" or other similar intellectual property protection for special intellectual products. New plant variety rights and domain name rights fall into this category. While new intellectual property systems continue to emerge, old related systems have gradually evolved into new members of the intellectual property legal system, the most significant of which are trade secrets and anti-unfair competition. Trade secrets are intangible information property. Unlike patented technology, its rights are not independent in a strict sense, nor are they restricted by geography or time. The effectiveness of the rights depends entirely on the degree of confidentiality of the trade secrets. It is precisely because of this characteristic that civil law countries have long adopted contract law or tort law protection methods, and trade secrets are not included in the traditional intellectual property system. Since the 1960s, the International Chamber of Commerce (ICC) has taken the lead in giving trade secrets the attribute of property rights, and the World Intellectual Property Organization also hinted in its founding convention that trade secrets can be included in intellectual property rights. By the 1990s, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) specifically stipulated the protection of “undisclosed information” and confirmed that trade secrets fall within the scope of intellectual property rights. In addition, anti-unfair competition is also closely related to intellectual property rights. Initially, competition law was only a supplementary protection for intellectual property rights, intended to provide back-up protection for the intersections or vacuum zones of various intellectual property systems. In modern society, anti-unfair competition has been classified in the field of intellectual property law. The 1967 Stockholm text of the Paris Convention for the Protection of Industrial Property lists patented technology, business marks and the prevention of unfair competition as objects of industrial property rights. The 1967 Convention Establishing the World Intellectual Property Organization includes the right to combat unfair competition within the scope of intellectual property rights. , the 1993 TRIPS Agreement emphasized that contracting parties abide by the relevant provisions of the Paris Convention, that is, the provisions that recognize anti-unfair competition as an integral part of intellectual property rights. The above situation shows that modern intellectual property law is in the process of continuous development and change, and its rights system is a dynamic and open legal system. It is obviously inappropriate to place such frequently changing laws in a civil code that needs to be relatively stable.

Third, modern intellectual property law is a constantly innovative system of legal norms. Modernization and integration are two major trends in intellectual property legislation. The former is driven by the development of modern science and technology, and the latter is subject to the formation of the new international economic order.

It has been three to four hundred years since the rise of intellectual property law. It was born based on the technological revolution and changed due to the technological revolution. Its institutional history itself is a process of interaction and mutual promotion between technological innovation and institutional innovation. In this sense, the intellectual property system is undoubtedly a "model of institutional civilization." Since the second half of the 20th century to the present, the successive emergence of new technological revolutions and information revolutions (or knowledge revolutions) has kept modern intellectual property law in a state of dramatic change. Copyright law bids farewell to the "print copyright" era in the 19th century, passed through the "electronic copyright" era in the 20th century, and then began a new era of "online copyright". This process has led to the continuous expansion of the scope of traditional copyright protection, new copyright items have emerged one after another, and the effectiveness of copyright has gradually expanded in the virtual space; the patent law has greatly narrowed the scope of non-patented objects, focusing on protecting chemical substances and pharmaceutical patents, and increasing the variety of microorganisms. and method patents. This most “technical” legal system, after realizing the goal of legislative modernization, is facing the challenge of genetic technology patent issues in the 21st century; trademark law in cyberspace not only involves the transformation of the traditional trademark system (such as trademark The conflict between the regional nature of rights and the international nature of the Internet, the conflict between trademark classification protection and the exclusive effect of online trademark rights, changes in online trademark infringement forms and determination of infringement liability, etc.), and innovations in the domain name protection system must be considered (such as domain name registration and review, the nature and content of domain name rights, the conflict between domain name rights and other prior rights, the protection of domain name rights and the handling of domain name disputes, etc.). Intellectual property law must not only realize legislative modernization through institutional innovation, but also establish a new intellectual property protection mechanism on a global scale, that is, achieve legislative integration through institutional reform. In the international community, intellectual property protection is closely related to international economy and trade. Through the Uruguay Round of package negotiations and within the framework of the World Trade Organization, the Agreement on Trade in Goods, the Agreement on Trade in Services and the Agreement on Trade-Related "Intellectual Property Agreement" three main body systems. Due to the effective operation of the World Trade Organization and the above-mentioned conventions, intellectual property protection has now become an integral part of the international economic and trade system. From an international perspective, the intellectual property system has entered a new stage of unified standards. In this context, legislators in various countries have to "amend the law" and re-examine their domestic intellectual property systems in accordance with the relevant requirements of international conventions. It is precisely based on the above situation that intellectual property law has been frequently revised since the 1970s. According to records, copyright laws in developed countries are revised once every 10 years on average. In the six years since its promulgation, the French Intellectual Property Code has been revised and supplemented 12 times. China's Trademark Law and Patent Law underwent two major revisions in the early 1990s and the beginning of the new millennium respectively. It should be noted that these legal revision activities are all completed in the form of special laws, and the civil code, which is systematic and stable, does not have these conveniences.

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