Intellectual property rights are the legal rights that people enjoy over intellectual achievements in the fields of science, technology and culture, as well as business logos and industrial and commercial performance. Intellectual property is essentially an intangible property right. Scholars have made many discussions about its characteristics. Some scholars believe that the only characteristic of intellectual property is the intangibility of the object; some scholars summarize the characteristics of intellectual property as exclusivity, regionality, timeliness and the immateriality of the object. ; Some scholars believe that the characteristics of intellectual property are the intangibility, exclusivity, regionality, timeliness and replicability of rights. The author believes that the characteristics of intellectual property are highlighted when compared with tangible property ownership. This article intends to start from the comparison of these two rights and summarize the characteristics of intellectual property into the following four aspects.

1. Intangibility of the object

The intangibility of the object is the most essential feature of intellectual property and the fundamental difference between intellectual property and tangible property rights. The following characteristics of intellectual property - ―The relative monopoly, the limited time and space of legal effect, and the uncertainty in the scope of rights protection are all rooted in this to some extent. The object of intellectual property is a knowledge product, which is usually the product of creative intellectual labor and its essence is a kind of information. This kind of information is in the "exclusive domain", which enables the exclusive owner to obtain some legal market monopoly rights, and can use this right to obtain economic benefits and prevent others from competing with itself. Contemporary Western scholars divide property into movable property, immovable property and intellectual property. They believe that the creation of intellectual labor is called "knowledge" property because this property is related to various information. People combine this information with tangible carriers and make a large number of copies in different places at the same time. Intellectual property is not included in the above-mentioned copies, but is reflected in the information reflected in the copies. Some scholars even suggested that "it may be better to regard intellectual property rights as information rights. With the development of society, it is increasingly necessary to divide rights into three categories: property rights, creditor's rights and information rights."

Why do you think that the essence of knowledge products is information? Let’s make a detailed analysis from the perspective of various objects of intellectual property rights. The object of patent rights is inventions and creations. Whether these inventions and creations are regarded as a "new technical solution" or a "new design", they convey a kind of information to the public, and the public can implement the patent based on this information. The object of copyright is a work, through which the author intends to express certain thoughts and emotions to people. Japanese Copyright Law defines a work as "a product of creative expression of thoughts or emotions in the fields of literature, science, art or music"; my country's "Copyright Law Implementation Regulations" defines "work" as "a product in the fields of literature, art and science" , an intellectual creation that is original and capable of being reproduced in some tangible form.” It can be seen that the essence of the work is still information. As the object of trademark rights, a trademark is a sign of the source of goods or services. It conveys information to the public such as the manufacturer, place of origin, and quality of goods or services. Consumers often rely on trademarks to make choices that suit them. , producers rely on trademarks to differentiate their products or services from those of competitors. Databases, especially electronic databases, can be said to be aggregators of information. The H.R.354 bill of the United States in October 1999 defined databases as "information collections", that is, "collected and organized, from scattered to centralized." "A location or source of information that is accessible to humans, including facts, data, copyrighted works, or any other intangible material that can be systematically collected and organized." As for trade secrets, it can be said to be a kind of information. Article 10, paragraph 3, of my country’s Anti-Unfair Competition Law clearly defines trade secrets as “not known to the public, can bring economic benefits to the right holder, and have practical technical information and business information that are confidential and the right holder has taken confidentiality measures."

As the essence of knowledge products, the fundamental characteristic of information is intangibility. “It does not exist in the form of land, air, or wild animals... This kind of property, in the strictest sense, It is a kind of creation", which is different from the physical object of property rights in the traditional sense.

Japanese scholar Nobuo Monatani defines the object of intellectual property as "intangible inventions, creations, expressions of ideas or customer attraction, and other intangible objects and the results of intellectual activities." It is precisely because of this intangibility that there is a significant difference in the objects between intellectual property rights and tangible property rights:

First, the object and carrier of tangible property rights are unified, while the object of intellectual property rights is consistent with its carrier. Carriers are phase-separated, and knowledge products must be embodied through certain, tangible material carriers, and the form of this material carrier is not unique. For example, a work can be fixed on film and shown in the form of a film, or it can be written into a book and published in text form. “From the traditional commercial transactions of writings, music, photos, broadcasts, movies and other works, it can be found that the objects of the transactions are not the works themselves...Although the works are incarnated in the form of books, records, films and other physical objects, Transaction is actually a transaction involving the connotation of works in a dominant position from the perspective of value, and legally utilizes the transaction form of tangible objects in a subordinate position. "So, what is the relationship between the object of intellectual property and its tangible carrier? What is it like? Some scholars have introduced the concept of "abstract object" to describe the object of intellectual property: "Abstract object is the core structure necessary to constitute the identity of tangible objects. This core structure becomes the observer's choice between two specific tangible objects. The basis for making identity judgments between entities; legal professionals use this core structure to determine whether completely incomparable tangible objects are identical or similar, or similar to each other."

Second, intellectual property rights. The tangible carrier on which the object relies can be copied and imitated, and the intellectual property owner only enjoys exclusive rights to the same information reflected in several tangible carriers; however, for the object of tangible property rights, even if two identical information appear, A tangible object, there are also two independent property rights existing on these two objects.

Thirdly, under certain spatio-temporal conditions, the same knowledge product can be used by several subjects at the same time, and this use will not cause tangible loss like physical objects, nor will it be caused by physical consumption. Its own loss, "the supply of information to one person will not reduce the amount of information supply available to another person. In economic terms, information has non-competitive characteristics in terms of consumption." The existence of intellectual products will only differentiate between private property and public property depending on the period.

2. Relative Monopoly

Intellectual property rights are a kind of monopoly. Different from the natural possession of objective objects by the holders of tangible property rights, the possession of knowledge products by the holders of intellectual property rights is a kind of monopoly. Artificial legal monopoly.

(1) Economic analysis of intellectual property monopoly

The definition of property rights in intellectual products originates from economists’ theories about public goods and private goods. Economists classify items into private items, public items and club items based on their consumption and use status, that is, whether the items are excludable (such items are not within the scope of this article). Private items refer to items that are personal exclusivity in consumption or use, and can only be used by a specific subject under specific time and space conditions; public items refer to items that are not personal exclusivity in consumption or use, and can only be used by a specific subject under specific time and space conditions. That is to say, one person's consumption of public goods does not reduce or exclude others' consumption of public goods. The natural or technical attributes of public goods mean that the cost of exclusivity is high. The intangibility, perishability and non-competitiveness of use of knowledge products determine that they are public goods and have exclusive enjoyment.

The property rights of private items are privately owned, and the property rights of public items are owned by the public. Why has knowledge information that was originally part of public items become the object of private property rights? First of all, "once information is defined in a certain way (referring to the use of electronic or non-electronic means to process information into the existence of information that can be perceived), the situation is different. For example, anecdotes are collected and edited into Books and unrestricted information gain property value as works; if it is a company's customer list or research and development data, as a business secret, it has not only practical value, but also legal value."

The usefulness and scarcity of knowledge information makes it recognized as a kind of property and protected by law, and thus becomes an object that can be traded through contracts in intellectual property law.

Secondly, what is more important in defining property rights in intellectual products is the serious external effects and "free-riding" behavior brought about by their public nature (that is, taking benefits from others without paying any cost. or behavior that benefits society). As far as the spiritual field is concerned, once the knowledge products are made public, it will be difficult for the information producers to deal with the non-paying "suckers" who enjoy the benefits of the products provided by the information producers but do not pay them. As a result, the information producers cannot pass Market transactions yield sufficient returns to compensate for the costs of their investments. In this case, the private benefits of producers are not guaranteed, resulting in insufficient growth momentum for the development of knowledge stock and the absolute quantity of knowledge products. The government has adopted the form of defining intellectual products as private through the intellectual property system, allowing producers to control the spillover effects of information and obtain cost compensation, stimulating the enthusiasm of private producers of intellectual products. It can be seen from this that the conditions for the emergence of the intellectual property system are: the owners of intellectual products make their works, inventions, etc. public, so that the public can obtain the specialized knowledge, and the public recognizes that the authors, inventions and creators have rights within a certain period of time. The exclusive right to use and manufacture its intellectual products. Knowledge products are public (public product attributes), while intellectual property rights are monopolized (private property attributes).

(2) Compared with tangible property rights, the monopoly of intellectual property rights is relative

First, intellectual property rights and tangible property ownership depend on the rights holder’s “possession” of the object. There is a big difference in the way of "using". The object of ownership of tangible property is tangible and has objective reality, so it can be actually possessed, controlled and dominated by the owner, and the use of one subject must exclude the use of another subject. The object and carrier of intellectual property rights are separated. The right holder has rights to the intellectual products as intangible property, but this kind of intangible property can easily escape the control of the right holder and be possessed by an unspecified majority of people. Here, "possession" is expressed as knowledge and understanding of knowledge products. In the Anglo-American legal system, intellectual property rights are considered to be litigation rights, that is, rights that can be won in litigation but not actually possessed. “Generally, litigation property (choseinaction) is considered to be incapable of actual possession.” chattels, but to be regained through litigation...Property that can be actually possessed (choseinpossession) refers to tangible objects, while property subject to litigation is related to intangible property, and it is impossible to claim rights through substantial possession of such intangible property." . It is precisely because of the particularity of this mode of possession and the information nature of knowledge products that the owner of intellectual property rights can also license multiple people to use their knowledge products non-exclusively in various ways at the same time.

Second, there is a difference between intellectual property rights and tangible property ownership in the "exercise" of rights. The various rights of intellectual property rights can be separated from the tangible carrier, and the licensing and transfer of rights do not need to rely on the carrier. For example, when someone receives a letter from another person, the letter belongs to the recipient as a tangible object, but the copyright (such as the right to publish, reproduce, etc.) existing in the letter still belongs to the writer. Correspondingly, intellectual property owners do not need to provide specific tangible carriers when licensing or transferring rights to others. Since the exercise of tangible property rights requires actual possession of the subject matter, when the right holder allows others to use his property (such as renting or lending), he must transfer the tangible property to the licensee, otherwise the licensee will only get "empty" rights. , cannot be exercised.

3. The limitation of legal effect in time and space

(1) The limitation of legal effect in time

Tangible property rights are based on the existence of tangible objects The premise is that once tangible objects are lost, everyone's rights will also disappear. Knowledge information has the characteristics of non-loss, and no knowledge information can be produced without completely cutting off historical connections, so it has the characteristics of "sustainability".

With the development of economic globalization, science and technology, and the rapid popularization of the Internet, it has become possible for intellectual property rights to have extraterritorial effects outside the domestic domain. For example, the United States' Trademark Law is applicable outside the territory of the United States and grants people the right to bring civil lawsuits against anyone who improperly uses a registered trademark in commerce. "Business" here is defined as commercial activities that can be regulated by any country in accordance with the law, including international commercial activities. [16](38). The United States also links trade to intellectual property rights through Section 301 and Special Section 301 of the Trade Act of 1974, allowing its executive branch to regulate trade that occurs entirely outside the territory of the United States through the threat of credible unilateral trade retaliation. Behavior. In addition, the signing of a series of international conventions for the protection of intellectual property rights has also led to an increasingly integrated trend in intellectual property legislation. The Agreement on Trade-Related Aspects of Intellectual Property Rights is considered to be the first treaty in the world that stipulates international obligations regarding the protection of intellectual property rights. The Patent Cooperation Treaty (PCT) clearly defines the concept of "regional patents", namely "Patents granted by a national agency or an intergovernmental agency with the power to grant patents valid in more than one country."

While the Internet is turning the earth into a global village, countries in the real world are also constantly integrating and colliding in various aspects such as politics, economy, science and technology, and law. Unless the laws between different countries can Complete mutual coordination, otherwise international conflict is inevitable. Therefore, countries hope to establish an international convention for the protection of intellectual property and use the dispute resolution mechanism it provides to resolve differences between different legal systems so that intellectual property rights can be more effectively protected. This may be one of the reasons for the weakening of the regional nature of intellectual property. Deep reasons. However, it should be noted that the spatial limitation of the legal effect of intellectual property rights still exists. Even a "regional patent" is only valid within the contracting countries of the Patent Cooperation Treaty; in addition, on the issue of whether to grant patent rights, Judgments still need to be made based on the domestic laws of each country, and each country still maintains judicial independence in terms of procedures. Similarly, the North American Free Trade Agreement, which is considered to represent a higher standard for intellectual property protection, is only a regional agreement and cannot be applied to countries in other regions.

4. Uncertainty in the scope of rights protection

As far as tangible property ownership is concerned, the tangible objects are under the actual control and control of the right holder, and the owner can Free will can exercise the right to possess, use, benefit from, and dispose of property, and can exclude non-owners from illegally occupying, interfering with, and damaging property. Therefore, it can be said that the scope of rights protection of tangible property ownership is certain. In contrast, it is much more difficult to define the scope of protection of intellectual property rights. This uncertainty will be analyzed below from the perspective of patent rights, trademark rights and copyrights.

First of all, for inventions and utility models, the laws of various countries recognize that claims are legal documents that define the scope of their rights. Article 56 of my country’s Patent Law stipulates: “The scope of protection of an invention or utility model patent shall be based on the content of the claims, and the description and drawings may be used to explain the claims”; Article 69 of the European Patent Convention stipulates: “ The scope of protection of a European patent and a European patent application is determined by the content of its claims, and the description and drawings can be used to interpret the claims. "However, inventors often cannot accurately predict all infringements that may occur in the future when applying for a patent, and it is difficult. Writing the claims in a watertight manner makes understanding and interpreting the meaning of the claims the key to determining the scope of patent rights for inventions or utility models. There are currently two approaches in various countries, namely "central limitation" and "peripheral limitation". The "peripheral limitation" method requires that the claims be interpreted strictly according to the literal meaning, which is not conducive to the full protection of the inventor's rights and interests; while the "central limitation" method is beneficial to the patentee, but it does not limit the scope of the claims. When the interpretation is expanded, the boundaries of the scope of rights protection will be blurred due to human factors.

Secondly, my country implements a registration system for trademarks, and trademark rights are limited to approved registered trademarks and approved goods.

When applying for trademark registration, the applicant must accurately fill in the product category and product name to be used for the registered trademark according to the product classification table. The Trademark Office will use this as a basis to specifically determine the scope of protection of the trademark right. However, with the development of high-speed information highways, new information products and services continue to emerge, making the international classification of goods and services specified in the Nice Agreement no longer suitable for use. In addition, in accordance with the provisions of Article 38, Item 1 of my country's Trademark Law, if others use the same or similar trademark as the approved registered trademark on the same goods or similar goods approved for use without the permission of the trademark owner, it constitutes infringement. But how to identify the same or similar products? What are the standards that are identical or similar to those for approval of registered trademarks? Obviously, this has brought great uncertainty to the scope of trademark protection.

Thirdly, the principle in copyright theory that “only protects the expression form of a work and does not extend to the idea (or content)” is unsustainable under the impact of digital technology. The form and content of new information works are often integrated and difficult to define. For example, the U.S. Court of Appeals' judgment in the case of Whelau Company v. Jaslow Company in August 1986 stated that: when it comes to computer program works, the division of ideas and expressions should be determined by the goals pursued by the work itself. The "structure, sequence and organization" of a work that is usually considered to be in the category of "form" in other works is an integral part of the content in computer program works and should also be protected by copyright law. Data in computer information space usually does not have the specific form required by traditional works. Different works can be converted into binary numbers through digital technology for storage and transmission. People can't help but ask: In this process where the transmitter (originator) determines the data content and the receiver (user) determines the form of the work, is the originality standard that a work must meet to obtain copyright determined by the form or by the form? What about content decisions? In addition, when judging the copyright protection requirements of works, countries with common law systems have long adhered to the concept of "sweat on the brow" and believe that as long as the work is independently created and does not plagiarize others, it can be protected by copyright law. However, how to quantify the "sweat" and to what extent the "sweat" can constitute a legally protected result is a controversial issue and a very uncertain factor.

In addition to the difficulty in determining the scope of rights protection discussed above, the continuous expansion of the objects of intellectual property rights with the rapid development of science and technology also brings difficulties to the determination of the scope of rights protection. As some scholars have said, “Intellectual property rights are a developing right.” Today, mankind has entered the era of information explosion. Information is changing with each passing day, and various knowledge products are pouring out. For example, electronic currency has been patented in the United States, Europe and Australia. In recent years, trademarks have begun to appear on agricultural products. Farmers have begun to label rice, fruits and other products with trademarks to distinguish and protect them. In addition, patents have been or are being granted on microorganisms, DNA recombinant technology, protein structures and even human genes. At the same time, the content of intellectual property rights continues to be enriched and refined, and the corresponding infringement methods are constantly "innovating", all of which make the scope of intellectual property rights protection uncertain. Therefore, when enacting legislation for intellectual property protection, it should be closely linked to the development of science and technology. At the same time, the particularity of the object of intellectual property should be taken into consideration, and various powers of intellectual property should be defined, expanded or restricted in a timely manner to benefit intellectual property. People can better protect their own intellectual achievements, and at the same time, the legislative purpose of intellectual property rights - not only to protect the legitimate rights and interests of creators of intellectual achievements, but also to promote the widespread dissemination of science and technology and culture - can be implemented.