Abstract of intellectual property papers! Come on, everybody, 3Q.

Based on the theory of civil law, this paper re-understands the basic problems of intellectual property, such as ontology, subject and object. The author thinks that intellectual property is essentially an intangible property right, and the immateriality of the object is the same legal feature of the right to which intellectual property belongs; Based on the spirit of equality, the subject system of intellectual property rights is different from the general civil subject system in terms of original acquisition, derivative acquisition and national treatment. Knowledge products are a new generalization of all kinds of intellectual property protection objects, and their types mainly include creative achievements, business marks and business reputation. Key words: the immateriality of the object, the qualification of the subject and the scope of multidisciplinary and knowledge products. Intellectual property is a new civil right different from traditional property ownership, and it is the product of the development of modern commodity economy and science and technology. It is difficult to explain this right with the theory of real right since Roman law. Based on the theory of civil law, this paper attempts to discuss the basic issues of intellectual property rights, such as ontology, subject-object system, etc., in order to describe the essential characteristics of such rights and summarize the basic differences between them and property ownership. I. Nature of Intellectual Property The traditional property rights system does not involve intellectual products or intellectual achievements. In the concept system of German civil law, it is generally believed that the extension of things only covers material entities and natural forces. (Note: See Liu Xinwen, editor-in-chief: A Review of Civil Law Studies in China, China University of Political Science and Law Press, 1996, p. 295. Although French civil law theory has a broad understanding of things, its immateriality refers to the right with property content. (Note: See Volume 3 of Encyclopedia La Ruse of France, which contains a series of translations of foreign laws and civil laws, Knowledge Publishing House, 1987, p. 168. This shows that the civil law of civil law countries does not take knowledge products as the direct adjustment object of ownership system. In fact, jurists and legislators have made unremitting efforts to cover intangible spiritual products with traditional ownership system. /kloc-in the 0/8th century, the theory of "spiritual ownership" for the protection of literary and artistic works was popular in continental European countries. As early as the feudal period, the publishing privilege was granted to the areas limited by the feudal monarch, and it was often in a certain period of time, which led to the exclusive publishing consciousness of publishers. This is the early "publishing ownership" theory. Later, due to the decline of the feudal dynasty and the evolution of the concept of civil class rights, publishers began to advocate that the monopoly protection of publications should be based on the transfer of the author's spiritual ownership rather than the privilege granted by the king. They try to give their monopoly power a new theoretical aura based on the idea of natural law, that is, to replace the previous claim of "publishing ownership" with the theory of "spiritual ownership" (note: see L.Ray Patterson, Stanley W. Lindberg: The Nature of Copyright: A User Rights Law, University of Georgia Press,1991; Wu: Research on the Fair Use System of Copyright, China University of Political Science and Law Press, 1996, p. 4. In France, after the absolute concept of ownership was confirmed during the 1789 revolution, its definition has been expanding. Among them, the expansion of the definition of ownership is first manifested in the field of intellectual property rights, which is used to "adapt to the legal relationship between its subject matter and its performance and various completely different dominant categories." "In French legal theory, spiritual ownership is understood as an exclusive right that can resist all people and is a kind of ownership. (Note: Yin Tian: French Property Law, Law Press, 1998, p. 122. But this theoretical generalization is flawed. Its disadvantages are: first, applying the concept of ownership to the right of intangible wealth "makes it far beyond the accurate understanding of it technically". (Note: French Civil Law Course, Selected Materials of Foreign Civil Law, Law Press, 1983, p. 23 1. Although the ownership and rights related to spiritual products have some common characteristics, the latter has different nature and is restricted by different regulations. Second, "from the original meaning of ownership, the above rights are not real ownership". (Note: Yin Tian: French Property Law, Law Press, 1998, p. 122. They are not based on material products (tangible things), but on intellectual and creative knowledge products, which are special intangible objects. Therefore, in order to meet the needs of social science, technology, culture and economic development and fill the blank area of legal adjustment, it is necessary for us to "liberate from the shackles of the concept of property rights of simple commodity ownership of a single individual" and "produce a form of rights that is very alienated from tangible objects". (Note: (US) Gray: On the disintegration of property rights, contained in "Comparison of Economic and Social Systems" No.5, 1994. ) This form of right is intellectual property. In our country, some scholars put forward a new theory on the object of property ownership in view of the large number of intangible property appearing and widely entering the production and circulation field. The theory holds that "property" as the object of ownership includes not only tangible property, but also intangible property. According to its logical expression, intangible property belongs to the scope of ownership object, intellectual achievements belong to the scope of intangible property, and inventions and registered trademarks belong to the scope of intellectual achievements. Therefore, intellectual achievements belong to the scope of ownership objects, and inventions and registered trademarks also belong to the scope of ownership objects. (Noe: Yang Zixuan: A New Theory on the Object of Real Right, Chinese and Foreign Law No.3, 1996. This assumption that knowledge products and material products, whether intangible property or tangible property, are classified as ownership objects is difficult to justify in theory and practice. According to the existing civil legislation system and the basic theory of civil law, the object of ownership cannot include intangible knowledge products. This is because once the property or intangible property in the form of value becomes the object of ownership, the traditional ownership system and its theory will inevitably be stretched. " The most intuitive fact is that the power of ownership and its exercise method cannot be successfully used for value-based property or intangible property. (Noe: Gu's Exploration of Law and Economics, China People's Public Security University Press, 1994, p. 104. ) That is to say, the theory of "four rights" about possession, use, income and disposal is completely based on the object of material form, which obviously does not apply to spiritual products of non-material form. The intellectual achievements in the spiritual field cannot be the adjustment object of traditional ownership, but only belong to the new category of property rights object. The object of intellectual property is an intangible intellectual wealth. The intangibility of object is the essential attribute of intellectual property, and it is also the most fundamental difference between this right and traditional ownership. Some scholars believe that the fundamental difference between intellectual property rights and other property rights lies in its intangibility, which leads to other legal characteristics, such as exclusivity, timeliness and regionality. (Note: Zheng, editor-in-chief: Intellectual Property Law Course, Law Press, 1993, p. 45. Some scholars hold different views. Mr. Zeng Shixiong believes that tangible or intangible property rights refer not to rights, but to the biological resources dominated by rights, that is, whether the object has a shape. For example, the right of house ownership itself is not tangible, but the problem is that the house is tangible; As copyright, it does not cause tangible and intangible problems. The key is that the work is an intelligent product and intangible. (Note: Zeng Shixiong: The Present and Future of General Principles of Civil Law, Taiwan Province Sanmin Publishing House, 1983, p. 15 1 p. Strictly speaking, the boundary and scope of the behavior that the right as a subject can implement by virtue of the law is almost a subjective fiction without external entities. It is in this sense that the rights with property content (except ownership) are called intangible things from Roman jurists to modern civil law scholars. Therefore, the essential difference between intellectual property and traditional ownership is not the so-called intangibility of this right, but the intangibility of its right object, that is, knowledge products. Second, the basic characteristics of intellectual property rights The basic characteristics of intellectual property rights are usually elaborated in textbooks. The generalization of these characteristics is different in various versions of writings, but their basic characteristics are exclusiveness, regionality and temporality. At the same time, the description of these characteristics is relative to other property rights, especially ownership, and not all of them are unique to intellectual property rights. 1. Proprietary intellectual property is an exclusive civil right. Compared with creditor's rights, it is as exclusive and absolute as ownership. On this attribute of intellectual property, French scholars have launched a purely theoretical and almost rigid "pedantic discussion". Some scholars believe that intellectual property is a kind of "property right" (ownership), that is, "intellectual property". But most scholars doubt whether intellectual property is real ownership. According to the characteristics of the subject matter and content of rights, they generally call intellectual property rights monopoly rights or exclusive rights. (Note: See Yin Tian's French Property Law, Law Press, 1998, p. 86. Japanese scholars agree with most French scholars. In Kojima's view, intellectual property is different from ownership, and it is a kind of "brand-new special right", which can be divided into "exclusive right" and prohibition right. The former refers to the right to monopolize its object, mainly including copyright, patent right, trademark right, trade name right, circuit layout design right, new plant variety right and so on. The latter refers to the right to prohibit sanctions for violating unfair competition obligations, mainly involving the right to trade secrets, the right to commodity image, the right to goodwill and so on. (Noe: (Japan) Kojima He Yong: Intangible Property Rights, Japan Chuangcheng Society, 1998, p. 5-9. In fact, exclusiveness and absoluteness are the same characteristics of intellectual property and ownership. The difference between the two is not that the former is "monopoly right" and the latter is "property right", but the key difference should be that the former is the ownership of intangible property and the latter is the ownership of tangible property. The exclusiveness of intellectual property is mainly manifested in two aspects: first, intangible property is monopolized by the obligee, who monopolizes this exclusive right and is strictly protected. Without legal provisions or permission, no one may use the intellectual products of the obligee; Second, for the same intellectual product, two or more intellectual property rights with the same attributes are not allowed to coexist. For example, two identical inventions can only be granted a patent right for one of them according to legal procedures, and the subsequent inventions cannot obtain corresponding rights if they have no outstanding substantive characteristics and significant progress compared with the existing technology. Intellectual property and ownership are also different in exclusive effect. First of all, the exclusiveness of ownership means that the owner excludes the non-owner from illegally occupying, obstructing or destroying his property, while the exclusiveness of intellectual property mainly excludes the non-owner from illegally copying, counterfeiting or plagiarizing intellectual products; Secondly, the exclusiveness of ownership is absolute, that is, the owner exercises the right to things, and does not allow others to interfere or actively assist, on the condition that the owner controls the property, and is not limited by geography and time. The exclusiveness of intellectual property is relative, and this monopolistic right is often restricted by power (such as fair use in copyright, temporary transit use in patent right, first user in trademark right, etc.). ). At the same time, the exclusiveness of this right only takes effect within a certain spatial area and effective period. 2. Regionality It is generally believed that regionality is a unique feature of intellectual property rights. In fact, many areas of civil rights in history have regionality. According to the research of scholars in private international law, in the field of tort debt, tort litigation has long been under the jurisdiction of the court where the tort occurred, and the law of the place where the tort occurred is applicable. In the field of contractual debt, the regionality of law also causes the rigidity of law application and the difficulty of executing judgments abroad. The reason for this phenomenon is that when these rights came into being, most countries were in a feudal locked state, and foreign trade and economic exchanges were very scarce. Occasionally, foreign-related disputes can be resolved through domestic laws, so there is no need to resort to the extraterritorial effect of rights. (Note: Griffith, et al.: Comments on the Law of Regional Conflicts of Intellectual Property Rights, Journal of the Central School of Political Science and Law Management, No.6, 1998. ) In this case, the above-mentioned civil rights cannot be without certain regionality. The emergence of intellectual property rights has the same historical background as the above system. At the end of European feudal countries, the original copyright and patent right were granted by the monarch and appeared as a franchise, so this right can only be exercised within the jurisdiction of the monarch. The regionality of this primitive intellectual property right is the regionality of feudal law. With the development of modern bourgeois law, intellectual property finally broke away from the form of feudal concession and became legal spiritual property. However, according to the principle of national sovereignty, the regionality of intellectual property protection in capitalist countries not only stems from the geographical limitation of national sovereignty, but also lies in the geographical limitation of intellectual property authorization (such as national review and authorization after national registration). See Zhang Naigen, International Trade Intellectual Property Law, Fudan University Press, 1999, p. 52. Only the intellectual property rights obtained according to domestic laws are protected, so the regionality as the characteristic of intellectual property rights continues to be preserved. In order to be protected by law in another country, the obligee who has obtained intellectual property rights in one country must register or examine and approve according to the laws of that country. Since the end of 19, with the development of science and technology and the expansion of international trade, the international intellectual property exchange market has also begun to form and develop. In this way, there is a huge contradiction between the international demand for intellectual products and the geographical restrictions of intellectual property rights. In order to solve this contradiction, countries have successively signed some international conventions to protect intellectual property rights, established some global or regional international organizations, and established a set of international protection system for intellectual property rights around the world. The provisions of international conventions on the principle of national treatment are an important supplement and coordination to the regional restrictions of intellectual property rights. It is precisely because of this principle that intellectual property rights recognized or granted by a country may have extraterritorial effects in contracting States according to international conventions. However, the regional characteristics of intellectual property rights have not wavered, and whether to grant rights and how to protect them still need to be decided by each state party according to its domestic law. By the second half of the 20th century, due to the integration of regional economy and the development of modern science and technology, intellectual property legislation showed a trend of modernization and integration, and the strict regionality of intellectual property was also challenged. This is mainly manifested in two aspects: (1) the emergence of transnational intellectual property rights. Regional economic integration unites national groups and realizes the free circulation of goods, capital, personnel and services in a unified market, thus promoting the unification of intellectual property protection in relevant countries. In order to achieve the goal of economic integration, one of the important actions taken by the European Union is to establish a broad European protection system in the field of industrial property rights and copyright, that is, to strive to realize "the fantasy of Europe and intellectual property rights" under the impetus of regional economic integration. (Note: See (Germany) Adolf Dietz: Is European Copyright a Fantasy? ",legal translation series No.4, 1986. In one case, the European Court of Justice claimed that the geographical restriction of the exhaustion doctrine principle must be interpreted within the scope of the same market, that is, the goods sold in a contracting state for the first time constitute the whole exhaustion doctrine of the same subject. (Note: See Wu et al.: Research on Copyright System in Western Countries, China University of Political Science and Law Press, 1998. This shows that intellectual property rights have gone beyond the geographical restrictions of one country and come into effect in many countries at the same time. This has shaken the regional characteristics of this right to a certain extent. (2) The development and legal application of foreign-related intellectual property rights jurisdiction. For a long time, foreign-related intellectual property disputes are generally under the exclusive jurisdiction of the court where the lawsuit is filed. Due to the development of satellite technology, network technology and recording technology, infringement involving modern technology may occur in several or even a dozen countries, and the number of claims will increase accordingly. It will bring great inconvenience if the obligee files a lawsuit in these places one by one. So a brand-new jurisdiction theory came into being, that is, the courts of a country not only have the right to jurisdiction over intellectual property disputes in their own regions, but also have the right to jurisdiction over related disputes in other regions. Related to this, the applicable law of replacing the right of claim as intellectual property has also changed accordingly. In the case of infringement of intellectual property rights in several or more countries at the same time, observing the laws of the place where the claim is made will lead to the unreasonable phenomenon that several or more laws are applied to the same case. (Note: See Griffith et al.: A Review of the Law on Regional Conflicts of Intellectual Property Rights, Journal of the Central School of Political Science and Law Management, No.6, 1998. Therefore, it may be the best choice to apply the principle of the new applicable law-the closest connection law. (Note: At the beginning of this century, private international law scholars Pillet and Niboyet advocated that intellectual property rights should be protected by the law of the place of claim, and the generation and existence of rights were governed by the original domestic law (that is, the law of the place of initial grant of rights). Shuang Yuan, Li See, China Private International Law, Ocean Press, 199 1, p. 28 1. The non-exclusive jurisdiction of foreign-related intellectual property disputes and the diversification of the application of intellectual property laws will have a great impact on the regional characteristics of this right. In short, in today's society, the regional characteristics of intellectual property rights still exist, but they have