In the intellectual property system, the monopoly of intellectual products by intellectual property holders and the legitimate demand of the public for them constitute two contradictory aspects. This contradiction has always existed, and the intellectual property system has reflected the mutual ebb and flow of this contradiction from design (legislation) to implementation. In order to realize the purpose and function of the intellectual property system, it is of critical significance to establish the principle of balance. Otherwise, either the rights of intellectual property rights are too great, which damages the public's rights and interests to access and use intellectual products, thereby defeating the fundamental purpose of the intellectual property system - to stimulate creativity that is beneficial to society by providing adequate protection for intellectual products. The production of intellectual products is also conducive to the widespread dissemination of such knowledge products, thus providing legal protection for the progress of social civilization - which cannot be achieved. Or it will damage the interests of intellectual property rights and make the driving force for the production of intellectual products insufficient, which will also make it impossible to achieve the purpose of the intellectual property system.

Because intellectual property rights involve the interests of multiple subjects. For example, the interests between the right holder and the public are the most important. The length of the protection period will affect the above interests. Another example is the balance of interests between the right holder and the prior user in a patent. In order to protect the prior user, the prior user has invented a certain technology on the filing date but has not applied for a patent. Therefore, the law gives the prior user the right to use the patent. right to defend. Of course, there are many examples. Another example is the issue of fair use in copyright law, which also involves the interests of the public. If an individual copies a small amount of a work for appreciation or research, it does not constitute infringement, etc. You can look for it in intellectual property law.

1. The meaning of the principle of balance in intellectual property rights

The so-called balance, from the perspective of law and economics, refers to an interaction in which each party achieves its maximum goal at the same time and tends to exist permanently. form. In intellectual property theory, balancing involves striking a balance between the production and proprietary nature of information, and access to information. Intellectual property rights can be regarded as certain information. From the perspective of information property rights, intellectual property rights can be regarded as certain information property and information property rights. The capacity of information is always limited within a given period of time. Within this limited amount of information, the proprietary and public ownership of information have a waxing and waning relationship with each other. Too many proprietary components will inevitably create obstacles to information access, thereby affecting the public's access to information and the free flow of information, and will ultimately hinder the realization of the purpose of the intellectual property system; too many public components will create intellectual property rights Weak protection may lead to a serious lack of driving force for information production, resulting in the scarcity of information, which is ultimately not conducive to maximizing social utility. From such a simple analysis, it can be concluded that the intellectual property system should strike an appropriate balance between the production of information, information exclusivity and information access.

The balance theory, especially the balance theory that emphasizes the balance of interests, is the theoretical basis of the intellectual property system.

2. Contents of the principle of balance of intellectual property interests

1. The balance between incentives for creators to engage in intellectual creation and incentives for the dissemination of intellectual creations.

Through intellectual efforts, human beings create works, technologies, and products, forming intellectual property and information resources. These properties and resources are used by the public through market circulation and promote social development. Prosperity and progress. The circulation of these intellectual property in the market shows its economic value. To the extent that ownership is confirmed, they are called intellectual property rights. From an economic and market perspective, the realization of such intellectual property depends on the cost of creating the intellectual product, the need for potential use, the market structure, and the legal rights that allow its owner to control its use. The latter point is particularly important. It involves not only the realization of the rights of intellectual product owners, that is, intellectual property rights holders, and incentives for the production of intellectual products, but also the effectiveness of the circulation of intellectual products in the market. In the language of information property rights, it refers to the effectiveness and degree of information diffusion, that is, the dissemination of intellectual creations. Therefore, in a complete balanced sense, just stimulating the creation of information and intellectual creations is not enough. The dissemination of information and the use of intellectual creations are equally important.

An intellectual property system design can maximize the incentives for intellectual creation, but without a corresponding incentive mechanism for dissemination, the overall social utility of this intellectual property system cannot be called optimal. As a kind of private property right, the existence of costs and benefits of intellectual property rights shows that it can be used as an incentive for creation in concept. But what underpins this right is the need for diffusion and access to intellectual products. When establishing rules for intellectual property, society must establish such a balance: the need for intellectual property owners to control their intellectual products and the needs of users, such as the necessary personal use of intellectual products, the need for subsequent inventions, intellectual creation, etc. .

In other words, the system of intellectual property should create an appropriate balance in the creation and dissemination of intellectual property. In this regard, the system provides important guarantees for stimulating creation and dissemination through the following aspects: (1) allowing market-based incentives to promote creation; (2) minimizing the cost of creative activities; (3) ) In order to achieve economic and social goals, timely provisions for disclosure and reasonable and fair use of inventions and creations; (4) By connecting with other rules or economic systems, such as antitrust policies, trade and policies that affect the value of intellectual property, etc.

Although different systems in intellectual property have different economic and social goals, they all attempt to provide adequate incentives for the development of new technologies, information products and artistic creations, and to ensure that intellectual products Efficient distribution enters the economy to achieve balance. From the perspective of policy tools and market operation mechanisms, the intellectual property system is an excellent means to solve the failure of development and information flow in the market, because the stimulation of intellectual creation operates centered on the market. Indeed, in the contemporary intellectual property system, it is structured to both protect the efforts of authors and inventors while disseminating information as widely as possible.

2. The balance between the creator’s incentives to engage in intellectual creation and the user’s demand and use of intellectual creations.

From the perspective of "interests", in intellectual products, intellectual creators, other intellectual property rights holders who have rights to the intellectual creations, and the public all have legitimate interests. The foundation of the creator's legitimate interests is the factual act of his or her intellectual creation, while the foundation of the public's legitimate interests lies in the sociality and inheritance of intellectual products, and the legitimate needs of human beings for their own development of intellectual property. As long as there is a growing common stock of ideas that can be used by everyone with limited restrictions, then everyone has at least as much opportunity to appropriate the idea as the first person in the wilderness to appropriate the resource. There is a balance between those ideas that are removed from the commons through privatization and those ideas that society primarily relies on. From the perspective of intellectual property as an information and non-rivalrous commodity, in order to allow maximum access to information, intellectual property law has a problem of information distribution in achieving the goal of optimal social utility. This also raises the question of establishing an ideal balance between motivating the creation of information and access to information. The essence of the problem is the balance between incentives for intellectual creation and public use and demand for intellectual creation.

3. The balance between private interests and public interests in intellectual property rights.

Private interests in intellectual property rights are self-evident. Private interests in intellectual property rights are manifested in that by being granted exclusive rights, intellectual property owners can obtain spiritual and economic benefits by virtue of their exclusive use of intellectual creations. The intellectual property laws of modern countries all provide as comprehensive a provision as possible for the exclusive rights of intellectual property holders. The important purpose of the intellectual property system is also to protect the intellectual property rights of knowledge owners. Moreover, in recent years, this exclusive right has been expanding. Take my country's newly revised special intellectual property laws - the "Patent Law", "Copyright Law" and "Trademark Law" - as examples. An important feature is the strengthening of the protection of rights. This strengthening is conducive to better realizing the private interests of intellectual property rights holders. However, the possible expansion of private interests in intellectual property in the self-interest market has caused concern among some scholars. The interests of intellectual property rights holders are only one end of the balance mechanism of intellectual property rights interests - there are also public interests in intellectual property rights.

Excessive expansion of private interests in intellectual property rights may harm public interests and make it impossible to achieve the public goals of the intellectual property system. From the perspective of the balance of interests theory, the intellectual property system also attempts to establish a delicate balance between the incentive function and the distribution of intellectual property laws, and between public and private interests.

Furthermore, although intellectual property laws generally belong to the nature of "private law", they all have public interest goals, but they are different in different specialized intellectual property laws. As reflected in copyright law, it enhances the learning of knowledge, promotes cultural and scientific progress, and facilitates access to information and the flow of information. In the patent law, it is manifested in the exchange of information and access to technology and information, which ultimately promotes scientific and technological progress. Without the protection of public interests, the legislative purpose of intellectual property rights will not be realized. Therefore, in intellectual property rights, major public interests should also be encouraged. The protection of creators and disseminators based on the maintenance of public interests will be the main mechanism to achieve a balance between private interests and public interests in intellectual property rights.

3. The role and significance of the principle of balance of interests in intellectual property rights

Because intellectual property rights are a kind of exclusive rights and monopoly rights. The granting of this monopoly right is fully justified whether it is based on the labor doctrine of intellectual creation, the personality attributes of intellectual products, or the motivational level. However, the object of intellectual property rights - knowledge products (or intellectual products) have the characteristics of intangibility and inheritance, which makes them also have the attributes of public goods. In other words, the public also has legitimate needs for it. A major goal of intellectual property law is to maximize creative expression. The law seeks to achieve this goal by striking an appropriate balance between the rights of creators to the fruits of their labor and the rights of future creators to free expression. Lack of intellectual property protection will reduce incentives for creativity; excessive protection of creative monopoly rights will exceed the original purpose of creative expression. In this way, legislators must consider two issues when enacting intellectual property legislation: first, to what extent can the legislation motivate creators and benefit the public; second, to what extent can the legislation incentivize creators and benefit the public? The granting of monopolies would harm the public. The grant of such a monopoly, under appropriate conditions, confers a benefit to the public that outweighs the disadvantages of a temporary monopoly. For example, copyright law provides two mechanisms by which the rights of copyright owners can be protected without compromising public access to information. The first aspect of these designs is a clear distinction between copyrightable expressions and non-copyrightable ideas and facts. On the one hand, the ideas in the work are not copyrightable, and advocating the protection of ideas will slow down social effectiveness by hindering the dissemination of information. On the other hand, the expression of ideas is protected by copyright, and through this protection, copyright law provides basic protection for the author's rights. The second aspect is the means of ensuring an appropriate balance between the public's need to use the information and the author's monopoly on original creations.

In the intellectual property system, the monopoly of intellectual products by intellectual property holders and the legitimate demand of the public for them constitute two contradictory aspects. This contradiction always exists, and the intellectual property system reflects the ebb and flow of this contradiction from design (legislation) to implementation. In order to realize the purpose and function of the intellectual property system, it is of critical significance to establish the principle of balance. Otherwise, either the intellectual property rights are too large, which damages the public's rights and interests to access and use intellectual products, thus defeating the fundamental purpose of the intellectual property system - to encourage creative intellectual products that are beneficial to society by providing adequate protection for intellectual products. At the same time, it is conducive to the widespread dissemination of this kind of knowledge products, thereby providing legal guarantee for the progress of social civilization - which cannot be realized; or it will damage the interests of intellectual property rights and make the driving force for the production of intellectual products insufficient, which also makes the knowledge The purpose of the property rights system cannot be achieved.

Looking at the track of foreign intellectual property legislation over the past several hundred years, on the one hand, the rights of intellectual property holders are constantly expanding with the development of new technologies; on the other hand, the scope of public information freedom It is also gradually expanding.

From the perspective of foreign intellectual property legislation and judicial practice, the principles of interest and balance in intellectual property law have been developed through judicial practice, and are clearly used to guide judicial practice and the revision and improvement of legislation. Domestic and foreign scholars have increasingly reached a consensus on the principles and mechanisms of interest balance in intellectual property law. Throughout the entire historical development process of intellectual property law, interests and balance have always been the main theme of the development of intellectual property law. The general trend of intellectual property rights in history is continuous expansion, and behind this expansion are also interests and balancing mechanisms at work. In contemporary intellectual property legislation and international intellectual property conventions, interests and balance are still the focus of intellectual property law. It is precisely based on this that we have to admit that the balance of interests is the theoretical basis of intellectual property rights.