What is the update of this year's intellectual property law?

Under the interactive influence and comprehensive effect of economic, political, scientific and technological factors, intellectual property law has begun to show some remarkable development trends in its right object, right attribution, right content, right restriction, system integration and international cooperation. For example, the object of intellectual property is gradually moving away from the traditional creative or identifying characteristics, and the goal of encouraging creators is gradually turning to encouraging investors. The modern development of intellectual property law depends on the interaction and comprehensive effect of economic, political, scientific and technological factors, and intellectual property laws such as patent law, trademark law and copyright law are gradually born and grow sturdily, thus forming today's scale. Against the background of knowledge economy and information society, the scientific and technological wave of Internet and biotechnology will surely promote the continued development of intellectual property law to meet the needs of the situation. This paper aims to sort out the development of intellectual property law in the scattered legal reform from different angles, so as to reveal the development trend of intellectual property law. I. Development of Intellectual Property Law on the Object of Rights At the beginning of intellectual property law, only patent law, trademark law and copyright law were its backbone. After years of changes, the object of protection (right object) of intellectual property law is expanding day by day, and it has gradually become the main legal expression of intangible property protection. For example, the trademark law only protected commodity trademarks in the early days, and then extended to service trademarks, and now extended to geographical indications and certification trademarks. It seems that there is a trend to catch all commercial trademarks. With the development of intellectual property law, although the objects of intellectual property are increasingly rich, they are also increasingly deviating from its traditional scope and characteristics. Traditionally, the scope of intellectual property objects (that is, knowledge products) can be divided into two categories: one is creative knowledge products, such as patented technology and literary works; One is the identification of knowledge products, such as trademarks and trade names. Therefore, traditionally, the object of intellectual property is either creative or identifiable, and not all intangible or intangible property can find its place in the framework of intellectual property protection. However, in recent years, intellectual property legislation has begun to slowly shake the creative or identifying characteristics that intellectual products should have traditionally. If we pay attention to the quiet change of copyright object, we can feel the trend of deviating from tradition. The early copyright law was mainly limited to literary and artistic works, and later extended to graphic works and model works such as engineering design drawings, product design drawings and schematic diagrams. Obviously, these works gradually deviated from the connotation of literary and artistic works. As for the protection of computer software, it has nothing to do with literary and artistic works. To this end, Nakayama Shinhiro once pointed out: "The scope of crops is expanding from pure art or scholarship to practicality and functionality." It can be seen that the object scope of copyright law has changed greatly, but in any case, these objects can still maintain the characteristics of originality, but the degree of originality has gradually weakened. But recently, even the original function has been abandoned. 1996 adopted the EU database directive, which established a new intellectual property right "database special rights" and gave database producers "right of extraction" and "right of reuse" to prevent others from using all or substantial parts of the database without authorization. From then on, databases with no originality in content selection and structural arrangement can also be protected by this new type of intellectual property rights. Traditionally, only when the database meets the requirements of originality in selection and arrangement can copyright be protected according to assembled works. The creative characteristics of knowledge products have been severely challenged. In trademark law, salience is weakening day by day. The protection of certification marks is a typical example. A certification trademark is a symbol used to prove the origin, raw materials, manufacturing methods, quality, accuracy or other specific qualities of a commodity or service. A certification trademark can still show some identifiability when proving the origin, but this identifiability is the identification of the source area of goods, not the identification of the source manufacturer of goods like a general trademark. It can be seen that the identification connotation of the certificate of origin trademark has changed. As for the certification trademark, it only proves the specific quality of goods or services, such as the quality and origin, and basically has no function of source identification. Therefore, the certification trademark shakes the traditional identification characteristics of the trademark right object. Similar changes in the object of intellectual property rights also exist in other fields. For example, the creativity of integrated circuit layout design is far lower than that of patent law. Some trade secrets, such as trade secrets, may be just customer lists or purchase channels, which have nothing to do with creativity or identification, but they can also get the courtesy of intellectual property law. In addition, the rapid development of science and technology has also touched on some inherent principles and ideas of intellectual property law on the object of rights. For example, the rise of biotechnology has blurred the boundary between discovery and invention, and the traditional concept that "patents can only be granted to inventions, not discoveries" has been challenged. Some people also question that algorithms and treatments are not protected by patents. Therefore, some contents that are traditionally excluded from intellectual property protection may gradually gather under the umbrella of intellectual property rights. Second, the development of intellectual property law in the ownership of rights. One of the purposes of intellectual property law is to stimulate knowledge innovation, so intellectual property naturally belongs to the creator. The preface of the French patent law 179 1 declares: "Any new idea whose realization or development can become useful to society should mainly belong to the person who conceived it. If you think that industrial inventions are not the property of inventors, in essence, this is a violation of human rights. " As a natural person's author, the ownership of copyright is even more natural. France, Germany and other countries adhering to the tradition of "author's right law" once insisted that the author is the owner of the work and the work can only be the author's property. Intellectual property belongs to the creator of intellectual products, which is ethically justified and even regarded as a human right. However, with the commercial production of intellectual products, the principle that intellectual property belongs to creators has gradually given way to the need to protect investors. Does the invention patent belong to the inventor or his employer (investor)? The earliest legal answer is the Austro-Hungarian Patent Law of 1897, which recognizes the principle that inventors have the right to patent their inventions with exceptions, that is, unless otherwise stipulated in the contract or service terms, the patent right may not belong to the inventors. Later, countries have made similar provisions. For example, France's Intellectual Property Law stipulates that inventions made by employees in the process of executing employment contracts containing invention tasks, or inventions made by research and design tasks explicitly entrusted to them, are owned by the employer, except for the clauses in the contract that are beneficial to employees. Article 6 of China's patent law also has similar provisions. The same is true of copyright law. Starting from pragmatism, in order to protect the interests of industrialists who invest in creation, the employment system of works in the United States directly stipulates that employers are authors. The second paragraph of article 1 1 in China's Copyright Law is almost similar to it, while the second paragraph of article 16 stipulates that the economic rights of works shall be enjoyed by the unit where the author works. After being deprived of the right to acquire intellectual property rights, the real creators of knowledge products can only get wages, remuneration and other returns from their employers (investors). The development of intellectual property law in the ownership of rights is closely related to the transformation of the production mode of intellectual products. On the one hand, with the wide application of scientific and technological achievements and the prosperity of cultural undertakings, the commercial value of knowledge products is increasingly prominent, so the commercial investment of knowledge products is also increasing. On the other hand, the individual's own creativity is difficult to adapt to the huge demand for knowledge products. Therefore, enterprises engaged in the production of knowledge products came into being. Investors set up enterprises, hire employees, and engage in technology development and works creation in an organized way. The modern mode of production of knowledge products has gradually changed from individual creation to investment creation. In the production of knowledge products, the creator's personality and personality components are gradually decreasing, while the economic investment components are gradually increasing. Because investors have played an organizational role in the production of knowledge products, injected huge amounts of money and assumed high risks, it is economically reasonable for the law to transfer the ownership of intellectual property rights from creators to investors, otherwise it will reduce the investment in the production of knowledge products. In modern society, many inventions, software, movies and other knowledge products will be difficult to come out without the guarantee of huge funds. It seems to be a direction of intellectual property law to change from encouraging creators to encouraging investors. The law promotes the commercial production of knowledge products by encouraging investors; Investors encourage employees to engage in the creation of knowledge products by paying remuneration. Therefore, with the increasing commercialization of knowledge products, more and more intellectual property rights will be gathered in the hands of investors. The legislative development of database protection in EU shows an obvious trend of protecting investors, because providing special rights protection for non-original databases aims at protecting database producers to recover their investment and win profits, and has almost no direct function of stimulating innovation. Third, the development of intellectual property law in the content of rights. Driven by economy, politics and science and technology, the types of intellectual property rights are increasingly rich. On the one hand, through the promulgation of new laws, the types of rights are increased, such as the exclusive right to layout design of integrated circuits; On the one hand, new rights are added by adjusting the old law. For example, the patent law has increased the right to promise to sell; The copyright law increases the right of information network dissemination and the right to prohibit circumvention of technical protection measures. At the same time, the connotation of intellectual property is expanding. For example, the protection of trademark rights extends to domain names, and it is forbidden to maliciously use registered trademarks of others, especially famous trademarks; The right to copy works also extends to the right to digitize works. Let's observe the development trend of intellectual property law in the content of rights from two aspects. Judging from the specific intellectual property law, all kinds of intellectual property rights such as trademark rights and copyrights began to develop from block protection mode to network protection mode, and its performance mainly focused on the resolution of rights conflicts. Because the objects of intellectual property rights are identical in some aspects, knowledge products can often become the objects of various intellectual property rights. For example, "lawking" can be used as a variety of business logos such as trademarks, trade names and domain names; A design can be the object of copyright, trademark right and design patent right at the same time. In this case, when there are multiple intellectual property rights on the same intellectual product, and the rights holders are inconsistent, the rights conflict is inevitable, which requires the coordination of intellectual property law through the principles of good faith, protection of prior rights and prohibition of abuse of rights. Therefore, the copyright owner has the right to prevent others from using his graphic works on the trademark, although the use of works on the trademark only highlights the identification of the trademark, far from the general infringement in copyright law. The protection of trademark rights is not only consolidated in the field of trade names, but also extended to the field of domain names. Trademark owners not only have the right to prohibit others from using the same or similar trademarks on the same or similar goods, but also have the right to prevent others from improperly using the same trade name or domain name as their registered trademarks. It can be seen that the protection scope of various intellectual property rights is no longer limited to its original protection space, but extended to the protection space of other rights. Trademark rights, copyrights and other intellectual property rights gradually intersect on the basis of their respective relatively independent plate protection modes, forming a network protection mode that is interrelated and influential. Judging from the overall intellectual property law, the tentacles of intellectual property are getting farther and farther, gradually deviating from its original scope, and there is a trend of infiltration into intangible property law. As mentioned above, the object of intellectual property is either creative or recognizable, and these characteristics are gradually discarded. With the goal of protecting the return on investment and maintaining fair competition, intellectual property law began to extend to objects with weak creativity and recognition, such as databases and certification trademarks. To some extent, intellectual property seems to be gradually generalized as intangible property, regardless of whether it is creative or recognizable. Looking at the existing scope of intellectual property protection, compared with the beginning of the birth of intellectual property law, it can be said that it is unrecognizable, and it is almost difficult to abstract its * * * characteristics except intangible. In the long run, intellectual property law may face the dilemma of self-deconstruction. When the creativity or identifiability of the object of intellectual property law becomes weaker and weaker, intellectual property law may really become a law to adjust "intangible property" instead of "intellectual achievements and business signs", thus being symmetrical with the property law to adjust tangible property, standing side by side and echoing each other. Four. The development of intellectual property law's restriction on rights Because intellectual products often contain huge social benefits, intellectual property law never seems to forget to give due care to the public in its development process. No matter how the times change, the mission of intellectual property law is always to maintain an appropriate balance of interests between the obligee and the public, which is more obvious in the restriction of intellectual property rights. While respecting and protecting intellectual property rights holders, in order to promote social welfare, intellectual property law has some restrictions on intellectual property rights. In addition to relying on the basic principles of honesty and credit, prohibition of abuse of rights and public order and good customs, some specific systems with strong operability have been designed, such as rational use of copyright and compulsory licensing of patents. In recent years, people pay attention to the new progress in the exercise of intellectual property rights. Intellectual property, as a complete private right, should be exercised according to the wishes of the obligee. However, intellectual property rights are a matter of great concern to society. In order to prevent the obligee from monopolizing its rights and improperly infringing or damaging social interests, the law has to forcibly interfere with the obligee's freedom of will, and under certain conditions, allow the third party to use its knowledge products without its permission, thus enhancing social interests. In today's world, intellectual property rights have become people's new favorite and a means of enterprise competition. The obligee uses intellectual property rights as a weapon to demarcate and enclose land everywhere, just as Professor Tao Xinliang said, as if he touched the high-voltage line of intellectual property rights as soon as he raised his hand, and fell into the minefield of patent rights as soon as he lifted his foot. At the same time, the types and connotations of intellectual property rights are increasingly rich, which intensifies the interest contradiction between the obligee and the public. Therefore, it is more urgent and necessary to readjust the restrictions on intellectual property rights, especially in the exercise of rights. With the increasing protection of intellectual property rights, especially patent rights, negative effects have followed, such as the collision and conflict between patent rights and social ethics, public health and human rights. At the end of 20001,at the Fourth Ministerial Conference of WTO held in Doha, Qatar, the participants held three days of negotiations on TRIPS Agreement and public health, and finally reached the Doha Declaration on TRIPS Agreement and Public Health, which clarified the sovereign rights of WTO member governments to take measures to safeguard public health, especially the protection of public health in TRIPS Agreement. So that countries (mainly developing countries) deeply troubled by public health crises such as AIDS and tuberculosis have the right to compulsory license the use of drug patents. In recent years, the collective management of copyright extension in Nordic countries has gone beyond the traditional restrictions on the exercise of copyright. Generally speaking, collective management organizations can only manage the works of their members (that is, the copyright owners authorized to them). However, in the Nordic countries, collective management organizations can also manage the works of non-members within the scope prescribed by law, which is called "extended collective management" or "extended collective management". For example, as far as the "right to copy" is concerned, the collective management organization may authorize the copying institution to copy a certain kind of work that is not managed by the collective management organization. Due to the limited number of members of the collective management organization, the works that users need may not be included in their management, and it is almost impossible for users to obtain the permission of the right holders one by one. Therefore, the purpose of extended collection management is to provide convenience for users to obtain authorization. In order to promote the wide spread of works, the law specially designed an extended collective management system for users, which greatly restricted the exercise of copyright, because at this time the copyright owner had lost the freedom to license the use of works. In the network communication of works, some scholars even advocate that the statutory license should be directly applied, without authorization of the copyright owner, and only appropriate remuneration should be paid, even skipping the intermediary of collective management organizations, which is also supported by the provisions of Article 3 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Computer Network Copyright Disputes. At this time, copyright seems to have weakened into a pure claim for remuneration. It can be seen that in the restriction of intellectual property rights (especially the exercise of their rights), intellectual property law tends to tilt towards the public, with the aim of promoting the popularization and use of knowledge products. V. Development of Intellectual Property Law in System Integration The institutional changes of intellectual property law generally revolve around the adjustment or amendment of patent law, trademark law and copyright law. However, with the development of the times, this kind of adjustment or correction limited to its own scope can no longer meet the needs of the situation. For example, the legislative practice of various countries shows that the protection of computer software is at the junction of traditional copyright law and patent law. Therefore, relatively independent intellectual property laws need to communicate and integrate with each other to adapt to the increasingly complex situation of intellectual property protection. The protection of layout design of integrated circuits profoundly embodies the integration and intersection of copyright law and patent law. The basic principles of copyright law or patent law are often extended when solving the problem of layout design protection. For example, the adoption of copyright law is not conducive to the development of integrated circuit industry because of the rapid update of layout design and the long protection period of copyright law; If the patent law is adopted, the development of integrated circuit technology is mainly manifested in the continuous reduction of lithography lines and the continuous improvement of integration scale, and it is difficult to reach the creative height required by the patent law. Therefore, countries have adopted special legislative protection methods, which can learn from the experience of copyright law and the practice of patent law, and meet the needs of layout-design protection of integrated circuits. The legal protection of database by EU database directive can be said to be the integration of copyright law and competition law. The "database special rights" enjoyed by database producers are actually the contents of database protection before the anti-unfair competition law. It can be seen that individual intellectual property laws, such as patent law and copyright law, are often powerless or unwilling to face new protection objects; Therefore, it is necessary to integrate the advantages of various intellectual property laws and design a new intellectual property system. Or give priority to one system and give consideration to the advantages of other systems; Or take the length of each method and knead it into one. As a result, the boundary between copyright and industrial property rights, especially patent rights, is no longer clear, but begins to blur. 1992 promulgated the French Intellectual Property Code, which opened a new era of historical significance in the design of intellectual property system. Since then, the overall integration of intellectual property law, that is, the codification trend of intellectual property law began to spread around the world. The Philippine intellectual property code quickly followed suit and became the second intellectual property code in the world. Compared with the cross-integration of specific systems, the codification of intellectual property law has its unique significance of system integration: on the one hand, the legislative level of intellectual property law will be improved, its formulation procedures will be stricter, and interest considerations will be more objective and rational, which will help improve the quality of legislation and limit the arbitrariness of administrative power. Moreover, the higher the effectiveness of the law, the more conducive to the protection of rights. On the other hand, if the legal norms of intellectual property rights are considered in one code, the limitations and interests of departments will be avoided to the greatest extent, which will help eliminate the conflict of rights between intellectual property rights, form an internally harmonious normative system, and then strengthen the scientific nature of the intellectual property system. The development of intellectual property law in international cooperation of intransitive verbs 1873, Austria invited all countries to participate in the international exposition, but all countries refused to participate for fear that the exhibition technology would not be protected. It is for this reason that international cooperation in intellectual property rights began to brew, and finally 1883 Paris Convention for the Protection of Industrial Property was born, which became a model of international cooperation in intellectual property law. In the international cooperation of intellectual property law for more than 100 years, international treaties, as the embodiment of their achievements, have been constantly emerging and becoming more detailed, and their protection scope has been continuously expanded and the protection level has been continuously improved. At present, there are nearly 30 international treaties on intellectual property rights open to the world, covering almost all fields of intellectual property rights, including inventions, utility models, layout design of integrated circuits, new plant varieties, trade secrets, trademarks, trade names, names of origin, works, printing fonts, scientific discoveries, Olympic emblems and so on. In recent years, the importance of intellectual property in international trade is increasing, and the international cooperation of intellectual property law is further strengthened. In addition to coordinating the scope and level of intellectual property protection through international treaties, the most striking thing is the international cooperation of intellectual property law, especially in the aspect of joining international treaties, which gradually moves from autonomy to coercion. Originally, sovereign States had the right to choose whether to join international treaties or not. However, with the World Trade Organization (WTO) intervening in the field of intellectual property rights, intellectual property rights are linked to international trade, which seriously weakens the autonomy of countries in international cooperation in intellectual property law. Because once you join the WTO, you must accept all agreements including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) without reservation, and in this era of economic globalization, joining the WTO is almost a necessary choice. Marked by TRIPS Agreement, the international cooperation of intellectual property law has entered a new historical period, which has accelerated the global convergence of intellectual property laws in various countries. The protection of integrated circuit layout design is an example. 1989 The Intellectual Property Treaty on Integrated Circuits was signed by only one country, so its entry into force is far away. However, Article 35 of the Agreement on Trade-related Aspects of Intellectual Property Rights stipulates: "All members agree to provide protection for the layout-design of integrated circuits in accordance with Articles 2 to 7 (except Article 6, paragraph 3), 12 and 16, paragraph 3 of the Treaty on Intellectual Property Rights of Integrated Circuits." The Treaty on Intellectual Property Rights of Integrated Circuits, which has not entered into force, was actually implemented in more than 100 countries under the framework of WTO. No matter the country that has not protected the layout design of integrated circuits before, or the country with low protection level, it is necessary to protect the layout design of integrated circuits according to the minimum requirements of TRIPS agreement. It can be seen that the TRIPS Agreement has accelerated the convergence of the scope and level of intellectual property protection in various countries. As a result of the global convergence of intellectual property law, the level of intellectual property protection in various countries has been improved, and for developed countries, their intellectual property rights can be protected more effectively; But for developing countries, due to weak intellectual property rights, their economic interests will be seriously damaged. In particular, it restricts the efforts of developing countries to pursue and promote their own economic interests by lowering the level of intellectual property protection. Therefore, when revising and formulating international treaties, developed countries always try to embody their own legal system in international treaties, and often succeed because of the pressure of their own economic strength. With the continuous expansion of international treaties in the scope of intellectual property protection and the continuous improvement of the level of protection, the legislative space of member States has been squeezed accordingly. For example, the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) extended its scope to domestic enforcement procedures of intellectual property rights, including civil, administrative and criminal procedures, as well as temporary measures and border measures, which were regarded as domestic legislative issues in the past. Therefore, some scholars believe that "globalization and intellectual property rights are not so much weakening the effectiveness and coercive power of domestic laws as challenging national sovereignty in another or more basic way." Therefore, we should be alert to the new progress of intellectual property law in international cooperation. From the above simple combing, we can find that the intellectual property law is slowly changing in all aspects. Observing the modern development trend of intellectual property law, on the one hand, it aims to arrange the system design of intellectual property law reasonably according to the changes of the situation to meet the needs of social development; On the other hand, it aims to find out the signs of interest imbalance and damage to public welfare in time, and then try to balance the interests between obligees and the public, developed countries and developing countries.