What is the relationship between industrial property rights and copyright?

Intellectual property rights include industrial property rights and copyrights. Industrial property rights mainly include patent rights, trademark rights and geographical indications. I. Overlap of industrial property rights and copyrights 1. The overlapping of industrial property right and copyright mainly refers to the overlapping of trademark right, design patent, trade secret, trade name right and copyright in industrial property right on the same object. It usually includes two situations: one is the concurrence of industrial property rights and copyright, when there is only one right holder, and the object of rights belongs to both the works in the copyright law and the industrial property rights produced according to law; Second, there is a conflict or confrontation between industrial property rights and copyright. At this time, different civil subjects enjoy industrial property rights and copyright respectively for the same intellectual property object. Property right 2. Overlap of trademark rights and copyrights Trademark rights and copyrights are also called "exclusive right to use trademarks" in China's current laws, which refers to the exclusive right of registered trademark owners to their registered trademarks according to law. The object of trademark right is registered trademark. According to Chinese laws, a registered trademark can be composed of words, graphics or their combinations. In this way, the object of trademark right overlaps with written works, artistic works, photographic works and design patterns in the object of copyright, which provides the possibility for the overlap of trademark right and copyright on the same object. Following the basic spirit of copyright law, words or patterns used as trademarks can be protected by copyright law as long as they are original. In this way, the trademark right and copyright overlap on the same object. The procedures for producing copyright and trademark rights for the same text or design are inconsistent. Once the words or patterns used as trademarks are created (original), they generate copyright without any formalities. However, the same words or designs must be examined, announced and approved by the Trademark Office after the creation is completed. Copyright and trademark rights generated on the same object can be enjoyed by the same civil subject or by different civil subjects respectively. When the two rights are enjoyed by the same civil subject, it will lead to such a legal question: is this object protected by both copyright law and trademark law? Some scholars argue that the same text or design can only be protected by one kind of law, and the copyright comes into being before the trademark right. Both rights belong to the category of intellectual property, so once the object is approved and registered as a trademark by the Trademark Office, its copyright will cease to exist. Some scholars believe that although the two rights overlap, they are essentially independent of each other, and no one can absorb each other. When the copyright and trademark rights on the same object belong to different civil subjects, it is bound to form a conflict or confrontation of rights, and the complicated plot of the case of Song Wu killing a tiger is typical. 2. Overlap of patent right and design copyright In the patent law, design refers to a new design that is aesthetically pleasing and suitable for industrial application for the shape, pattern, color or combination of products. Through the combination of modeling and pattern, modeling and color, and pattern and color, the modeling design of three-dimensional space or two-dimensional graphic design of product appearance is formed. Comparing the object of design patent right with the object of copyright, it is not difficult to see that they also overlap, that is, design often constitutes an artistic work in the object of copyright at the same time. That is to say, if the design used for patent application is original, it will constitute a work of art in the sense of copyright law from the time of creation and be protected by copyright law; After the obligee applied for and obtained the patent right of design, it became the object of patent right. The overlapping of patent right and copyright of design on the same object has caused the same legal problems as the above-mentioned overlapping of trademark right and copyright: whether the two rights can be protected by double laws when controlled by the same civil subject, and the conflict of rights when controlled by different civil subjects. |3. The intersection of trade secret right and copyright. Trade secrets refer to technical and commercial information that is unknown to the public, can bring economic benefits to the obligee, is practical and kept confidential by the obligee. The technical information and business information here include design, procedure, product formula, production technology, production method, management know-how, customer list, supply information, production and marketing policy, pre-tender estimate and bidding content. Comparing the information content of trade secrets with the types of works protected by copyright law, it is not difficult to see that some trade secrets can constitute works in copyright law. Product design drawings and engineering design drawings in trade secrets, if original, can constitute works protected by copyright law. Similarly, the product design, engineering design drawings and their descriptions in works protected by copyright law can also constitute trade secrets protected by the anti-unfair competition law if they are practical, secret and confidential. In short, when a trade secret enjoys copyright, the right of trade secret overlaps with copyright. When titles and role names in copyright works are registered as business names of enterprises, there will also be overlap of two rights (business name right and copyright) on the same object. The overlapping of industrial property rights and copyright on the same object will become more complicated in some cases. For example, if the copyright owner applies for trademark registration and design patent for his artistic works at the same time, the obligee will become the main body of copyright, trademark right and design patent right, and the question of how much protection the law should give the obligee is more prominent. If the copyright, trademark right and design patent right on the same object belong to different civil subjects, including the copyright owner authorizing multiple civil subjects to register the same work as a trademark of different kinds of goods or services, the right conflict or confrontation between right holders will become more complicated. Second, the legal issues arising from the overlapping of industrial property rights and copyright overlap on the same intellectual property object, and there are two legal issues worthy of in-depth discussion. First of all, when the industrial property right and copyright on the same object are held by the same civil subject, can the obligee be protected by both the industrial property right law and the copyright law? If only one law can be applied, which law should be used to claim rights; If it can be protected by multiple laws, what is the legal basis? Can the obligee claim multiple rights at the same time in the same infringement case? Secondly, when the industrial property right and copyright on the same object are held by different civil subjects, on the one hand, whether the industrial property right obtained on the work with the permission of the copyright owner, such as applying for trademark registration or design patent right, will affect the copyright protection of the work by the copyright owner; On the other hand, how can the copyright owner fight against the industrial property rights that have come into effect and exceeded the statutory objection period if the works that others enjoy copyright have been applied for and obtained industrial property rights without permission? In the case of concurrence of industrial property rights and copyright, whether the obligee can be protected by multiple laws varies from country to country. Anglo-American law often tries to find the dividing line between industrial property rights and copyright from the legal level. For example, American copyright law only protects painting, carving or sculpture features that can be distinguished from the practical aspects of articles, and excludes practical works of art that are inseparable from the practical components from the protection scope of copyright law and are protected by industrial property law. Article 52 of British 1988 Copyright Law stipulates that if an artistic work is used for industrial property rights with the permission of the copyright owner, its protection period is 25 years, not 70 years after the author's death. After the expiration of the 25-year protection period, copying this work in the form of any kind of article, any behavior for making any kind of article, and any behavior related to the article so made will not infringe the copyright of this work. Many countries in the civil law system tend to implement multiple protections for rights holders in the case of industrial property rights and copyright competition. Article 2 of the German Copyright Law clearly stipulates that the law protects practical works of art, and copyright protection and design protection are not mutually exclusive. Article 1 12 of French copyright law 1992 also stipulates that this law protects practical artistic works ... Article 3 of Spanish copyright law 1987 clearly stipulates that the author's rights are "compatible" with "possible industrial property rights of works". From the perspective of using legal weapons to fully protect the legitimate rights and interests of obligees, when industrial property rights compete with copyright, obligees should be able to get multiple legal protections. Article 5 of China's General Principles of Civil Law stipulates: "The legitimate rights and interests of citizens and legal persons are protected by law. No organization or individual may infringe upon it. " Industrial property rights and copyright are parallel rights in the field of intellectual property rights, and cannot be absorbed by each other. It is not allowed to prohibit the obligee from claiming both industrial property rights and copyright for the same object. Effectively protecting the legitimate civil rights and interests of civil subjects is the basic principle of China's civil legal system. In the case of real competition between copyright and industrial property rights, if the obligee is not allowed to claim both industrial property rights and copyright for the same intellectual property object, the legitimate rights and interests of the obligee will not be effectively protected. For example, according to the relevant provisions of Article 10 of China's Anti-Unfair Competition Law, the acts of infringing on trade secrets only belong to: (1) obtaining trade secrets by illegal means such as stealing; (2) Malicious disclosure and use of trade secrets; (3) In the case of obtaining trade secrets in bad faith, the obligee of trade secrets may seek legal remedies according to law. However, if the owner of a trade secret is known by others due to personal carelessness or management negligence, how can the "legitimate civil rights and interests" of the owner be protected by law? If the owner of a trade secret is allowed to claim copyright on the trade secret that can constitute a work in the copyright law, then he can protect his legitimate rights and interests from the perspective of copyright. For another example, according to China's patent law, the legal protection period of a design patent is 10 years, and it will enter the public domain upon expiration. If this design is also a work of art in the sense of copyright law, then the right holder can no longer claim copyright, and the protection of his rights by law is not sufficient, because the protection period of copyright is much longer than that of the design patent right, which is extremely unfair to the right holder. Although there is no explicit provision in China's intellectual property law to deal with the concurrence of industrial property rights and copyrights, we can draw corresponding conclusions from relevant legal provisions. Article 25 of the Detailed Rules for the Implementation of the Trademark Law stipulates that the Trademark Office will revoke the registered trademark according to law if it "infringes upon the lawful prior registration right of others". The "legal prior rights of others" mentioned here obviously includes the copyright enjoyed by others in advance. This shows that copyright and trademark right can be produced on the same thing at the same time, but the premise is that the latter right cannot infringe on the prior rights of others. There is no clear stipulation in the patent law that a patent that infringes on the prior rights of others will be revoked. However, Article 5 of the Law stipulates that "no patent right shall be granted for inventions and creations that violate national laws, social ethics or harm public interests". The "law" in "violation of national laws" should include the provisions in the copyright law, that is, the works of others may not be used without permission, that is to say, as long as the prior rights are not opposed, the patent right can be granted. From the above analysis, it can be seen that citizens and legal persons should not violate the copyright law except the industrial property law when claiming industrial property rights. When claiming copyright, we should abide by the copyright law and not violate the industrial property law. Among them, there is no question of which law takes precedence. Similarly, as long as the civil subject obtains the industrial property right and copyright on the same object, as long as it conforms to the legal provisions, there is no problem that one right is superior to another, and one right excludes another. When copyright and industrial property rights overlap on the same object, civil subjects can obtain multiple legal protections. However, when his rights are infringed, in the same case, he can only choose a law that is beneficial to him according to the specific case, and can't ask for the relief of copyright law and industrial property law at the same time, otherwise it will conflict with the principles of protecting the legitimate rights and interests of civil subjects, fairness and reasonableness. For example, a company applied for a design patent for his artistic design works. When he found that a company used its design patent without permission, he either sued a company for patent infringement or sued it for copyright infringement. He could not sue a company for compensation according to patent infringement in the same lawsuit and then compensate again according to copyright infringement. Of course, according to the collected evidence, the infringer's infringement behavior, the difference between patent law and copyright law in the amount of compensation and so on. A can choose a more favorable law as the basis for relief.