There are many topics related to intellectual property protection. Why choose such a topic to discuss? Of course, this topic is definitely one of the many important topics worth discussing in the industry, but what I want to say is that the role of judges in intellectual property protection is by no means just one of many important topics, but the most important one in intellectual property protection. topic! However, our country, our society, our government, including the judges themselves, do not fully realize this importance.
The importance of intellectual property protection is self-evident and needs no elaboration. However, there are different opinions on how to solve this problem. The author here believes that as long as our judges play the role they can and should play, my country's intellectual property protection issues will definitely be solved relatively smoothly!
This article will mainly demonstrate the above proposition from the following three aspects. The first is the role that judges can play in intellectual property protection; the second is the advantages of judges in intellectual property protection; and the third is that judges should play a greater role. The discussion will proceed in the order described above.
The role that judges can play
1 Maintain the dignity of the law and deter infringers. The court's hearing of various infringement cases can reflect the dignity of the law and deter infringers. However, compared with other infringement cases, the infringement behavior in intellectual property infringement cases often exhibits the characteristics of industrialization, scale, generalization, repetition, and stubbornness. It is impossible to curb the phenomenon of intellectual property infringement by relying solely on general social indoctrination. spread and spread. Therefore, the legal deterrence displayed by intellectual property judges in the process of judging cases is particularly important. Judges can award damages in civil cases and penalties in criminal cases, making infringers pay for their violations and deterring them from attempting to continue infringing.
2 Enable right holders to obtain appropriate compensation and reflect the due value of intellectual property rights. This is particularly important in intellectual property infringement cases. Because only when rights holders receive sufficient compensation will they have the ability and willingness to continue to defend their rights, and only by stimulating the enthusiasm of rights holders to defend their rights can we achieve the final victory in the war against infringement and piracy. You must know that the piracy and infringement camps faced by rights holders are often very wealthy. In comparison, the rights holders themselves already have a great advantage. If we can no longer get the support of the judge in awarding compensation, then we don’t have to expect victory. has arrived.
3 Educate the public and improve the intellectual property awareness of the whole society. The cases decided by judges involve specific rights holders and infringers, including celebrities, well-known enterprises, etc. These cases are often widely reported by the media and the public, have strong publicity, and have a large impact on the public.
4 Maintain fair and legal intellectual property transaction order and promote the healthy development of the intellectual property industry. Only when the price paid by infringers and pirates to purchase intellectual property is higher than the price paid by legitimate operators, can a healthy and benign intellectual property trading market be truly established. Infringement and piracy not only harm the interests of right holders, but also seriously dampen the enthusiasm of legal operators to adhere to legal operations, and undermine the legal and fair transaction order of the intellectual property market. An intellectual property industry that loses its market base is destined to fail to develop. China's seriously low level of technological R&D and cultural creation (completely disproportionate to China's booming economy) has fully illustrated this point. The civil and criminal penalties imposed by judges on intellectual property cases can not only deter infringers and pirates, but also serve as a great incentive for rights holders and legal operators, thereby further promoting them to continue to invest more. Manpower, material and financial resources are needed to develop the intellectual property industry.
5. Promote the good development of intellectual property legislation.
Intellectual property rights are always closely related to creation, and the purpose and result of creation is to produce new things, so judges always need to deal with new things when hearing intellectual property cases. Intellectual property legislation can never keep up with the pace of intellectual property industry upgrading. Therefore, how to apply the eternal principles of intellectual property law to the trial of specific new types of cases, and then promote the further development of intellectual property-related legislation, will always be a topic that intellectual property judges need to face. Compared with other judges hearing non-IP cases, the interaction between IP judges and the legislative body is more obvious, and the role of the judiciary in promoting legislation is also more obvious.
The unique advantages of judges among various intellectual property protection forces
1. More impartiality. Compared with various branches of government, the courts are undoubtedly more impartial. Because government agencies are always inextricably linked to the industries they supervise, many companies may have to go through these agencies from initial establishment approval to annual review. In addition, these departments have more or less departmental interests, and it is difficult to say whether strict anti-infringement and anti-piracy policies are always in line with their departmental interests. The impartiality and independence of the court are relatively much higher. This is also my personal experience in anti-infringement and rights protection work for many years.
2 is more standardized. Compared with administrative appeal procedures, court proceedings are more standardized and transparent. Court procedures are governed by local unified provisions of the Civil Procedure Law and the Criminal Procedure Law. Courts at all levels implement the procedures in a unified manner, but the administrative complaint procedures have different regulations in different places and departments. In addition, even in the same department of the same local government, due to the different understanding of the procedures by the accepting officials, even the same official may handle the procedures in different places. There may be great differences in the time or for different complainants. This makes it difficult for rights holders to have clear expectations for their complaints.
3 More serious. Judgments or rulings made by courts are undoubtedly more serious than administrative decisions made by administrative agencies. First, administrative departments are often reluctant to issue written administrative decisions or responses to complaints received. Secondly, even if it is issued, its legal effect is far less than that of a court judgment - you can apply to the court for immediate execution. The administrative departments' administrative handling of some infringement cases often ends up being nothing.
4 More powerful protection for rights holders. Administrative departments generally only focus on the punishment of infringers, and they are often powerless to deal with the losses suffered by rights holders. Fines or illegal property collected from infringers can only be turned over to the national treasury or the administrative department for safekeeping, and it is impossible to send them to the infringer. in the hands of rights holders. The court's compensation can compensate rights defenders, thereby enhancing their confidence in safeguarding their rights.
5 The resources that can be mobilized are more powerful and broader. In the court system, every intermediate people's court has an intellectual property tribunal that can hear intellectual property cases. Now more and more grassroots people's courts can also hear intellectual property cases. The intellectual property division of each court has at least one collegial panel, composed of three judges, which can hear intellectual property cases. In this way, there are nearly a thousand judges across the country who specialize in hearing intellectual property cases. This is a very huge force, because they It’s nearly a thousand judges, not nearly a thousand clerks. Nearly a thousand presiding judges mean that there are nearly a thousand filing court judges, nearly a thousand execution court judges and nearly a thousand clerks who cooperate with their work. This does not include the police officers of the Public Security Bureau and prosecutors of the procuratorate who cooperate with them in handling criminal cases. ; Moreover, this team covers all parts of the country and all handle cases in accordance with unified laws and procedures. More importantly, in addition to using its own resources and those of cooperating departments, the court also greatly mobilized the power of rights holders, lawyers and even investigation companies. When a rights holder files a lawsuit, he must first investigate the infringement facts and the infringer himself or hire an investigation company. The lawyer will sort out the materials clearly as required by the court and cooperate with the court in hearing the case. This has virtually expanded the anti-infringement force several times, and these different forces all act in organic and efficient cooperation under a unified legal framework, in accordance with unified procedures. Let me ask, which administrative agency can have such powerful energy?
Therefore, the court is undoubtedly, should be, and has the ability to become the most powerful force among various anti-infringement forces.
6 Greater social influence. The media also frequently reports on the anti-piracy actions of various governments. But these reports are routine, and readers or viewers will not feel that these actions have anything to do with them. Court cases, however, are different.
These cases involve specific infringers and specific rights holders, many of whom are celebrities and well-known companies. Therefore, they have attracted much public attention, and the media often take the initiative to follow up and report on them. For example, in the past two years, a series of cases concerning copyright infringement by karaoke parlors have aroused widespread attention and heated discussions in society. This kind of effect cannot be produced by administrative cases. Therefore, the court can play a very unique and important role in promoting the cultivation of public awareness of intellectual property rights by convincing people with reason through the trial process and judgment results.
7 frequency. The anti-piracy and anti-infringement actions of administrative agencies often have a very distinctive feature, that is, they have a very strong stage, such as a 100-day operation or a centralized rectification. This is not uncommon. In the concentrated action stage, we can generally feel the momentum of the action. But once the operation is over, everything will return to the way it was before. There is no such situation in the court. Except at the end of each year, the court is unwilling to accept new cases (usually this can be solved by setting up a case number for the next year). At other times, as long as the lawsuit is filed by the rights defender, the court will accept it, that is, He said that the court's anti-counterfeiting work is long-term, once and for all, and there are no ups and downs and settling of accounts like the administrative agencies.
Courts can play a greater role in intellectual property protection
There is no doubt that people now realize that courts are an important force in intellectual property protection, judicial protection and administrative protection** **, together constitute an intellectual property protection system with Chinese characteristics. But this positioning seems far from enough for the court. The author believes that the court's role in intellectual property protection should be "the most important and dominant."
In all countries around the world, the leading force in intellectual property protection is the courts. The first thing that rights holders who have suffered infringement think of is the courts. Administrative agencies may only play an important role in a certain aspect and a certain period of time. In view of this, our country has also proposed an intellectual property protection system with Chinese characteristics that places equal emphasis on judicial protection and administrative protection. In this system, I think the leading role is still played by government departments. Unfortunately, this Chinese characteristic has not shown its unique advantages, which has led to my country's intellectual property protection being criticized by the international community and domestic rights holders.
As mentioned above, the court is already the most powerful force in intellectual property protection in terms of its capabilities, and its actual role is also growing, but it has not yet become a truly leading force. Below, the author mainly elaborates on his views from two aspects:
1 How the court can further play its role
First of all, the court must fully realize its strong energy and position subjectively important position, have the courage to give full play to this energy, and assume the leading responsibilities that one should bear.
The author found that the vast majority of articles summarizing the work of the courts emphasize how many intellectual property cases the court accepted this year, how many were concluded, and how many were mediated. This has increased significantly compared with last year, thus illustrating the court’s emphasis on knowledge. The protection of property rights is getting stronger and stronger, and the work is becoming more and more effective. At the same time, there are also many articles that discuss specific legal application issues. However, there are few or no articles focusing on the actual social effects of court decisions or mediation.
For example, the court made a judgment on an infringement case, and the media reported it extensively. Then what? Has society changed as a result of this type of infringement? Is it reduced? Or has it increased? Still nothing changed? If there is a reduction, is this indeed due to the positive impact of the verdict? If there is an increase, what is the reason behind it? If there is no change, does that mean the judgment had no impact? If the judgment does have an effect, has the form of infringement changed, has the subject of the infringement changed, and if so, is it to evade legal sanctions? What should the court pay attention to in future judgments?
Few judges pay attention to or study these issues. In other words, even if there is, this kind of attention and research is not enough, because even the author, a lawyer who specializes in intellectual property litigation, is not aware of such research and research results.
What does this mean? This shows that our courts have a subjectively passive way of thinking, that is, they tend to pay more attention to how many cases and disputes have been resolved. The more resolved, the more successful the work will be, but not to whether the court's judgment has an impact on society. What kind of impact has it had, and how can the court's judgments actively guide society in a more fair and just direction?
The number of intellectual property infringement cases heard by the courts has increased year by year. On the one hand, it illustrates the achievements of the courts and the increasing enthusiasm of rights holders in safeguarding their rights. On the other hand, it also illustrates that the Infringements are also on the rise, or at least not significantly reduced. In other words, the infringers have not restrained themselves because of the court's decision, and the infringement phenomenon has not been reduced.
The most obvious example is that there are many defendants in infringement cases who are prosecuted multiple times, that is, they infringe again after being convicted, convicted again, and commit crimes again. However, the vast majority of courts do not impose more severe sentences, but more lenient sentences. Why is this happening? Because the focus of the trial judges is not how to stop the continued occurrence of infringement, they believe that this is a huge issue that people across the country have worked hard for so many years and have not solved. Can I, a court, solve it? Their focus is whether the defendant should be sentenced. There are too many sentences and too much compensation and they cannot afford it. Therefore, they will dissatisfy the judgment and appeal, which will affect the conclusion of the case and ultimately affect the smooth resolution of personal disputes.
This kind of thinking mode that attaches great importance to the resolution of individual cases and ignores the impact of individual cases is relatively typical among current judges. This shows that the courts still do not have the awareness of "protecting intellectual property rights only for themselves". The views of most judges still remain at this level. Courts mainly resolve disputes. There are many disputes that courts need to resolve. In addition to intellectual property disputes, there are many other more important disputes that need to be dealt with. Intellectual property protection is a macro issue. , the competent government departments are responsible for considering it, and the courts have the responsibility to properly handle the dispute at the doorstep to the satisfaction of both parties.
Over-emphasis on the function of courts to mediate disputes, emphasizing that both parties must obey and be satisfied with the judgment results. This positioning actually confuses courts with arbitration institutions and residents’ mediation committees. The court is not just a place to mediate disputes. The position of the court is much higher. It is the leading force that leads society to develop in the direction of fairness and justice. Wrong and illegal behaviors, especially malicious illegal behaviors, must be sanctioned and condemned. , praise and encourage righteous behavior. The courts have the ability and responsibility to do so.
If the court truly establishes the concept of "putting me first" and actively thinks about how to promote the healthy development of my country's intellectual property protection through judgments or other work, and is no longer just satisfied with the number of cases handled, then How to achieve this in the next steps is much easier. Especially for those defendants who have repeatedly violated the rights of others; the standard for awarding compensation in all types of infringement cases must be changed to reduce this unreasonable practice.
Secondly, use judicial advice more often. For those defendants who have repeatedly committed crimes, judicial suggestions should be issued to their industry authorities and industry associations to remind them to pay attention and recommend that they take corresponding measures from the perspective of the industry and industry and cooperate with the court to prevent the continued occurrence of infringement.
Third, strengthen the enforcement of court judgments. Nowadays, many intellectual property right holders have no confidence in safeguarding their rights according to law. There are two main reasons. First, the amount of compensation awarded is too low. Second, the amount of compensation awarded is too small. As long as the defendant does not take the initiative to perform, it will be difficult for the court to enforce it. The persons subject to execution in intellectual property infringement cases are completely different from the persons subject to execution in ordinary civil infringement cases or contract dispute cases. They are all engaged in piracy and infringement activities and make huge profits through piracy and infringement activities. Court enforcement has always been a problem. But no matter how difficult it is, enforcement should be at the core of intellectual property infringement cases. But unfortunately, what we often see in real life is that on the one hand, pirates and infringers continue to operate blatantly. In other words, they continue to engage in piracy and infringement activities, but the rights holders cannot get tens of thousands of dollars. yuan of compensation. How can this situation not chill the rights holders?
The fourth is to pay attention to cooperation with the public security department. In the process of hearing intellectual property infringement cases, the court will find signs that many infringers' actions have constituted criminal offenses.
In this case, can the court go one step further and transfer the clues to the public security organs for further processing?
It can be seen from the author's above analysis that the court is actually in a core position. It can mobilize the power of all parties to coordinate the protection of intellectual property rights and combat piracy. As long as the court is ideologically emancipated and has the courage to truly assume the responsibility of a leader, it will be able to mobilize multiple times of power and release multiple times of anti-piracy and anti-infringement energy. At the same time, there is no need to make major adjustments to any existing system. , and there is no need for the state to increase large investments.
2 As long as the courts assume the leading responsibility for intellectual property protection, my country's intellectual property issues will be better solved.
Why "as long as"? The reason is very simple, because as long as the court's ruling is reasonable, well-implemented, and can deter infringements, it will definitely prompt a considerable number of infringers to pay the price after infringement and give up the attempt to continue infringement. As long as the court The ruling is reasonable and well-implemented. It can encourage rights defenders to be active in safeguarding their rights and attract more rights holders to take up legal weapons and invest in anti-piracy and anti-infringement. The court can order infringers to compensate for losses. It plays the role of encouraging the enthusiasm of rights defenders and attracting more rights holders to take up legal weapons and join the war against piracy and infringement.
As long as the court's judgment is well-founded and well-implemented, and infringers continue to be awarded compensation and pay more and more for infringement, their strength will continue to be weakened, and their ability to engage in infringement and piracy will be reduced. getting weaker and weaker; as long as the court's judgments are reasonable and well-implemented, rights holders can continue to obtain compensation, and the value of rights is increasingly reflected, the strength of rights holders will continue to increase, and the ability to fight against infringement and piracy will Getting stronger and stronger. Our anti-infringement and anti-piracy capabilities will naturally become stronger and stronger.
If this trend in which we are getting stronger and the enemy is getting weaker is continuously consolidated, maintained and even strengthened, what reason do we have to not believe that intellectual property issues will be resolved in the near future? be completely resolved? On that day, knowledge, creation, and culture will be fully respected in our country, and all the ingenuity and ancient wisdom of our 1.3 billion Chinese people (not just cheap labor) will be fully utilized. So what reason do we have to not believe in China - the return of the king!