English is "intellectual property" and German is "Gestiges Eigentum", which both mean "knowledge (property ownership)" or "wisdom (property ownership)", also known as intellectual property. In Taiwan Province Province of China, it is called intellectual property. According to the general principles of civil law, intellectual property belongs to civil rights, which is the general term of rights based on creative intellectual achievements and industrial and commercial marks. Some scholars have verified that this word was first put forward by the French scholar Kaptsov in the middle of17th century, and later developed by the famous Belgian jurist picardie.
Intellectual property refers to the exclusive rights enjoyed by citizens or legal persons in intellectual creation or innovation activities according to law, also known as "intellectual achievement right" and "intangible property right", which mainly includes industrial property rights composed of invention patents, trademarks and industrial designs, as well as copyrights (copyrights) composed of works such as natural science, social science, literature, music, drama, painting, sculpture, photography and movies.
Elaborate in detail
Intellectual property refers to the exclusive rights enjoyed by citizens, legal persons or other organizations in science and technology or culture and art for the intellectual achievements obtained by creative labor. This definition includes three meanings:
(1) The object of intellectual property is the intellectual achievement of human beings, which some people call spiritual (intellectual) output. This kind of output (intellectual achievement) also belongs to an intangible property or intangible property, but it is different from intangible property belonging to physical products (such as electricity) and intangible property belonging to rights (such as mortgage and trademark rights). It is the direct product of human intellectual activity (brain activity). This intellectual achievement is not only thought, but also the expression of thought. But it is different from the carrier of thought.
(2) The exclusive use of intellectual achievements by the right subject is similar to the ownership in real right, so it was classified as real right in the past.
(3) The benefits obtained by the obligee from intellectual property rights are both economic and non-economic. These two aspects are combined and inseparable. Therefore, intellectual property rights are different from neighboring rights (mainly non-economic interests) and property rights (mainly economic interests).
Intellectual property rights include: industrial property rights and copyright (called copyright in China).
■ Industrial property rights consisting of invention patents, trademarks and industrial designs. Industrial property rights include patents, trademarks, service marks, names of manufacturers, names of countries of origin and prevention of unfair competition. The following only points out some main types of industrial property rights:
△ Trademark right refers to the exclusive right granted by the national law to the trademark authority to protect the registered trademark of the trademark owner. A trademark is a commercial symbol used to distinguish goods and services from different sources. It consists of words, graphics, letters, numbers, three-dimensional symbols, color combinations or combinations of the above elements. The acquisition of trademark rights in China must fulfill the trademark registration procedure and implement the principle of first application. Trademark is an identification mark in industrial activities, so the function of trademark right mainly lies in maintaining order in industrial activities, which is different from that of patent right mainly in promoting industrial development.
△ Patent right and patent protection refer to filing a patent application with the State Patent Office, which, after being examined and approved according to law, grants the patent applicant the exclusive right to enjoy the invention and creation within a specified time. After an invention-creation is granted a patent right, the patentee enjoys exclusive rights to his invention-creation. No unit or individual may exploit its patent without the permission of the patentee, that is, it may not manufacture, use, promise to sell, sell or import its patented products for production and business purposes. Without the permission of the patentee, the implementation of his patent will infringe his patent right and cause disputes, which shall be settled by the parties through consultation; Unwilling to negotiate or if negotiation fails, the patentee or interested party may bring a lawsuit to the people's court or request the administrative department for patent affairs to handle it. Patent protection adopts the protection mode of "two-way parallel and judicial guarantee" between judicial and administrative law enforcement. The administrative protection in this area takes the form of patrol law enforcement and joint law enforcement, focusing on cracking down on group infringement, repeated infringement and other phenomena that seriously disturb the patent legal environment.
△ Trade name right. In other words, the manufacturer's name right is the right to use its registered trademark name (manufacturer's name, enterprise name) without interference from others. The business name right of an enterprise cannot be equated with the personal name right (a kind of personality right).
In addition, such as the name of origin, know-how and anti-unfair competition are also stipulated in the Paris Convention, but the name of origin is not an intellectual achievement, and know-how and unfair competition can only be protected by the anti-unfair competition law, generally not included in the scope of intellectual property rights.
■ Natural science, social science, literature, music, drama, painting, sculpture, photography and cinematography constitute copyright. Copyright refers to the right of a unit or individual to print, publish and sell a work according to law. Anyone who wants to copy, translate, adapt or perform needs permission from the copyright owner, otherwise it will infringe on the rights of others. The essence of intellectual property rights is to treat human intellectual achievements as property. Copyright is the creator and creator of literary, artistic and scientific works, and it is a civil right enjoyed by their works according to law.
△ All rights reserved. In China, copyright in a broad sense includes copyright (in a narrow sense), neighboring rights of works, computer software copyright and so on. , which belongs to the scope stipulated by the copyright law. This is the exclusive right of the copyright owner to use the crop (work). In a narrow sense, copyright is divided into the right of publication, the right of signature, the right of modification, the right to protect the integrity of a work, the right to use it and the right to receive remuneration (article 10 of the Copyright Law). It is inappropriate to divide copyright into personal rights and property rights of works. Copyright, patent right and trademark right sometimes overlap, which is a feature of intellectual property rights.
Characteristics of intellectual property rights
Characteristics of intellectual property rights
(1) Intellectual property is an intangible property.
(2) Intellectual property rights are exclusive.
(3) Intellectual property rights have the characteristics of timeliness.
(4) Intellectual property rights have regional characteristics.
(5) The acquisition of intellectual property requires legal procedures.
■ Exclusivity, that is, exclusivity or monopoly; Without the consent of the creditor or the law, no one except the creditor may enjoy or use this right. This shows that the exclusive right of the obligee is strictly protected from infringement by others. Only through legal procedures such as "compulsory license" and "expropriation" can the exclusive right of the obligee be changed. The object of intellectual property is the intellectual achievement of human beings, which is neither a person nor a personality, nor something tangible or intangible outside, so it can neither belong to personality rights nor property rights. On the other hand, intellectual property is a complete right, but the interests as the content of the right are both economic and non-economic, so it cannot be said that intellectual property is a combination of the two types of rights. For example, copyright is the combination of personal rights (or personality rights or spiritual rights) and property rights, which is wrong. Intellectual property is a kind of right with complex content (multiple functions), economy and non-economy. Therefore, intellectual property rights should be juxtaposed with personality rights and property rights and form a class of their own.
■ Regionality, that is, it is only valid in the confirmed and protected areas; That is to say, unless an international convention or bilateral reciprocal agreement is signed, the rights protected by a country's laws will only take legal effect in that country. Therefore, intellectual property rights are both regional and international under certain conditions.
■ Timeliness, that is, the guarantee is only within the prescribed time limit. In other words, the protection of various rights by law has a certain period of validity, and the length of the protection period can be the same or different. Only by participating in international agreements or making international applications can a certain right be uniformly protected.
■ Intellectual property is an absolute right, which is similar to the ownership in real right in some respects, such as the right to directly control things, which can be used, benefited, disposed of and dominated by other species (but there is no possession problem); Exclusive; Transferability (including inheritance), etc.
■ Intellectual property rights are restricted by law in several aspects. Although intellectual property is a private right, although the law also recognizes its exclusiveness, but because people's intellectual achievements are highly public, closely related to social culture and industrial development, it is not suitable for anyone to monopolize for a long time, so the law stipulates many restrictions on intellectual property:
△ First, from the perspective of the occurrence of rights, the law provides various positive and negative conditions and publicity methods. For example, the occurrence of patent rights requires application and examination and approval. There are various conditions for the invention, utility model and design to be granted patent rights (Articles 22 and 23 of the Patent Law), but some matters are not granted patent rights (Article 25 of the Patent Law). Although there are no restrictions on the application, examination and registration of copyright, there are also restrictions in Articles 3 and 5 of the Copyright Law.
△ Second, the law has special provisions on the term of rights. This is a big difference between intellectual property and ownership.
△ Third, the obligee has a certain obligation to use or implement. The law provides for compulsory license or compulsory license system. For copyright, the law also stipulates a fair use system.
Historical development of intellectual property rights
Once upon a time, especially in civil law countries, intellectual property rights were called intangible property rights and were included in property rights (alongside property rights and creditor's rights). Since the word "intellectual property" became popular all over the world, especially after the establishment of the World Intellectual Property Organization, the word "intangible property" has been completely replaced by "intellectual property". As for the division between intellectual property rights and property rights, it is because intellectual property rights have their own characteristics and are very different from property rights.
Knowing what rights intellectual property rights include, that is, how to classify intellectual property rights, is not only a theoretical issue, but also involves the provisions of existing national laws and international conventions. Article 2 (8) of the Convention for the Establishment of the World Intellectual Property Organization (1967) stipulates that "intellectual property" includes the following related property rights: literary, artistic and scientific works or works; Performances, records, recordings or broadcasts by performing artists; Human inventions in various fields through hard work; Scientific discovery; Industrial product design; Trademarks, service marks, trade names and marks; And all other intellectual activities in the industrial, scientific, literary or artistic fields.
According to this provision, intellectual property rights can be divided into two categories. The first category is to protect people's intellectual creation activities in all aspects of culture and industry, including copyright and invention rights; The second category is the protection of identification marks in industrial activities, including trademark rights and trade name rights. The former category can be divided into copyright that mainly protects and promotes spiritual culture and patent that mainly protects and promotes material culture.
But in fact, before the above convention, the Paris Convention for the Protection of Industrial Property (1883) has stipulated "industrial property rights", saying that the objects of industrial property rights protection include patents, utility models, industrial designs, trademarks, service marks, manufacturers' names, country of origin marks or names and the prevention of unfair competition. So intellectual property rights are generally divided into two categories: copyright and industrial property rights. Under industrial property rights, it is divided into patent right, trademark right and trade name right. This division also makes sense. Industrial property rights involve "industry", but copyright does not.
Nowadays, due to the progress of science and technology, the products of human wisdom should be more and more protected by law, and the scope of intellectual property rights is gradually expanding. For example, the number of protected objects has increased, such as layout design, computer software, proprietary technology, integrated circuits and so on. And it is still increasing. Therefore, intellectual property is now a general term for rights, and it is still expanding.
There are many problems about intellectual property rights that need to be studied.
1893 The International Bureau established under the Paris Convention for the Protection of Industrial Property and the International Bureau established under the Berne Convention for the Protection of Literary and Artistic Works have joined hands to form the International Joint Bureau for the Protection of Intellectual Property. The World Intellectual Property Organization was established in Stockholm on 1967, and 1974 became one of the specialized agencies of the United Nations. Its purpose is to cooperate with other international organizations through international cooperation in order to promote worldwide intellectual property protection and ensure administrative cooperation among intellectual property alliances. China joined the World Intellectual Property Organization on March 3, 1980, and became a full member of the organization on June 3, the same year.
The General Principles of Civil Law of People's Republic of China (PRC) stipulates six types of intellectual property rights, such as copyright, patent right, trademark right, right of discovery, right of invention and other scientific and technological achievements, and stipulates the civil law protection system of intellectual property rights. In the Criminal Law of People's Republic of China (PRC), the related contents of intellectual property crimes are also determined in Section 7, Article 8, thus determining the criminal law protection system of intellectual property rights in China. In addition, People's Republic of China (PRC) Patent Law, Trademark Law, Copyright Law, Invention Award Regulations and other separate laws and administrative regulations also stipulate relevant intellectual property rights.
1June 994 16 China released the white paper on intellectual property protection.
The white paper is divided into three parts: 1. China's basic position and attitude in protecting intellectual property rights; Second, China has a high-level legal system to protect intellectual property rights; Third, China has a complete law enforcement system to protect intellectual property rights.
According to the white paper, China's sincere stance of abiding by international conventions and bilateral agreements on intellectual property protection and its ability to fully undertake international obligations have been widely praised and supported by international public opinion. At the end of the white paper, it is pointed out that there are always some people in the world who turn a blind eye to the development and changes in China, ignore the basic facts and make wild comments on the current situation of intellectual property protection in China. There is no need to argue this argument. Facts are the best answer.
A little knowledge about intellectual property rights
■ Headquarters of the United Nations World Intellectual Property Organization, Geneva
1893 The International Bureau established under the Paris Convention for the Protection of Industrial Property and the International Bureau established under the Berne Convention for the Protection of Literary and Artistic Works have joined hands to form the International Joint Bureau for the Protection of Intellectual Property. The World Intellectual Property Organization was established in Stockholm on 1967, and 1974 became one of the specialized agencies of the United Nations. Its purpose is to cooperate with other international organizations through international cooperation in order to promote worldwide intellectual property protection and ensure administrative cooperation among intellectual property alliances. China joined the World Intellectual Property Organization on March 3, 1980, and became a full member of the organization on June 3, the same year.
■ World Intellectual Property Day 4.26
■ The origin of World Intellectual Property Day
On the proposal of People's Republic of China (PRC) and Algeria 1999, the World Intellectual Property Organization adopted a resolution at the 35th General Assembly in 2000, and decided to designate April 26th as World Intellectual Property Day from 200 1. April 26th is the day when the Convention on the Establishment of the World Intellectual Property Organization (WIPO Convention) came into effect. The establishment of World Intellectual Property Day aims to establish a worldwide awareness of respecting knowledge, advocating science and protecting intellectual property rights, and to create a legal environment to encourage knowledge innovation and protect intellectual property rights.
■ Review of the theme of World Intellectual Property Day over the years.
200 1: create the future today.
2002: Encourage innovation.
2003: Intellectual property rights are closely related to us.
2004: Encourage innovation.
2005: Thinking, Imagination and Creation
2006: Intellectual Property-Starting from the Concept
2007: Encourage innovation
■ From the perspective of the relationship between innovation and intellectual property rights, there are three main ways.
First, independent innovation obtains intellectual property rights;
Second, joint innovation (that is, the combination of Industry-University-Research in the technological innovation system) to obtain intellectual property rights;
The third is to directly introduce intellectual property rights.
Copyright:
1: Copyright is legally generated.
2. Also called copyright. Divided into personality right and property right of works. Among them, the connotation of the personality right of a work includes the right of public publication, the right of name and the right to prohibit others from using the work to damage the author's reputation by distorting or tampering.
3. Have the following rights
(a) the right to publish, that is, the right to decide whether the work is open;
(2) the right of signature, that is, the right to indicate the identity of the author and sign his name on the work;
(3) the right to modify, that is, the right to modify or authorize others to modify a work;
(four) the right to protect the integrity of the work, that is, the right to protect the work from distortion and tampering;
(5) the right of reproduction, that is, the right to make one or more copies of a work by means of printing, photocopying, rubbing, audio recording, video recording, reproduction or reproduction;
(6) the right of distribution, that is, the right to provide the original or duplicate of a work to the public by way of sale or gift;
(7) the right to rent, that is, the right to temporarily license others to use film works, works created by methods similar to filming, and computer software, except that computer software is not the main object of rent;
(8) The right to exhibit, that is, the right to publicly display the original or duplicate of an artistic work or photographic work;
(nine) the right to perform, that is, the right to publicly perform a work and publicly broadcast the performance of the work in various ways;
(10) the right of projection, that is, the right to publicly copy art, photography, movies and works created by methods similar to filming through projectors, slide projectors and other technical equipment;
(11) Broadcasting right, that is, the right to publicly broadcast or disseminate works by wireless means, broadcast works to the public by wired or rebroadcast means, and broadcast works to the public through loudspeakers or other similar tools for transmitting symbols, sounds and images;
(12) the right of information network communication, that is, the right to provide works to the public by wired or wireless means, so that the public can obtain works at the time and place they choose;
(13) the right to make a film, that is, the right to fix a work on a carrier by making a film or by similar methods;
(14) the right of adaptation, that is, the right to change a work and create a new work with originality;
(15) the right to translation, that is, the right to convert a work from one language into another;
(16) the right of assembly, that is, the right to assemble a work or fragments of a work into a new work through selection or arrangement;
(seventeen) other rights that should be enjoyed by the copyright owner.
Copyright protects the expression of ideas, not the ideas themselves, because while protecting exclusive private property rights such as works' property rights, it also takes into account the accumulation of human civilization and the dissemination of knowledge and information, so algorithms, mathematical methods, technology or machine design are not the objects to be protected by copyright.
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