(1) The object of intellectual property is the intellectual achievement of human beings, which some people call spiritual (intellectual) output. This kind of output (intellectual achievement) also belongs to an intangible property or intangible property, but it is different from intangible property belonging to physical products (such as electricity) and intangible property belonging to rights (such as mortgage and trademark rights). It is the direct product of human intellectual activity (brain activity). This intellectual achievement is not only thought, but also the expression of thought. But it is different from the carrier of thought.
(2) The exclusive use of intellectual achievements by the right subject is similar to the ownership in real right, so it was classified as real right in the past.
(3) The benefits obtained by the obligee from intellectual property rights are both economic and non-economic. These two aspects are combined and inseparable. Therefore, intellectual property rights are different from neighboring rights (mainly non-economic interests) and property rights (mainly economic interests).
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Intellectual property law is the general name of legal norms regulating various social relations arising from the creation and use of intellectual achievements and in the process of confirming, protecting and exercising the intellectual property rights of intellectual achievements owners.
Generally, it includes the following legal systems;
Copyright legal system,
Legal system of patent right;
Copyright legal system;
Legal system of trademark right;
Legal system of trade name right;
The legal system of the right to mark the origin;
Legal system of trade secret right; And the legal system against unfair competition law.
Intellectual property rights include: industrial property rights and copyright (called copyright in China).
industrial property right
Invention patents, trademarks and industrial designs constitute industrial property rights. Industrial property rights include patents, trademarks, service marks, names of manufacturers, names of countries of origin, prevention of unfair competition, rights to new plant varieties and exclusive rights to layout design of integrated circuits.
Main types:
1. Trademark right refers to the exclusive right granted by national laws to the trademark owner to protect his registered trademark. A trademark is a commercial symbol used to distinguish goods and services from different sources. It consists of words, graphics, letters, numbers, three-dimensional symbols, color combinations or combinations of the above elements. The acquisition of trademark rights in China must fulfill the trademark registration procedure and implement the principle of first application. Trademark is an identification mark in industrial activities, so the function of trademark right mainly lies in maintaining order in industrial activities, which is different from that of patent right mainly in promoting industrial development.
2. Patent right and patent protection means that an invention-creation is applied to the State Patent Office for a patent, and after being examined and approved according to law, it is granted the exclusive right to the invention-creation within a specified time. According to the provisions of China's patent law, inventions are divided into three types, namely, inventions, utility models and designs. After a patent for invention and utility model is granted, the patentee enjoys exclusive rights to his invention and creation. No unit or individual may exploit the patent without the permission of the patentee, that is, it may not manufacture, use, promise to sell, sell or import the patented product for production and business purposes. After the patent right of a design patent is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, may not manufacture, sell or import the patented product for production and business purposes. Without the permission of the patentee, the implementation of his patent will infringe his patent right and cause disputes, which shall be settled by the parties through consultation; Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. Of course, there are exceptions to non-infringement, such as prior right to use and use for scientific research purposes. Patent protection adopts the protection mode of "two-way parallel and judicial guarantee" between judicial and administrative law enforcement. The administrative protection in this area takes the form of patrol law enforcement and joint law enforcement, focusing on cracking down on group infringement, repeated infringement and other phenomena that seriously disturb the patent legal environment.
3. Trade name right. In other words, the manufacturer's name right is the right to use its registered trademark name (manufacturer's name, enterprise name) without interference from others. The trademark right of an enterprise cannot be equated with the right of personal name (a kind of personality right).
In addition, such as the name of origin, know-how and anti-unfair competition are also stipulated in the Paris Convention, but the name of origin is not an intellectual achievement, and know-how and unfair competition can only be protected by the anti-unfair competition law, generally not included in the scope of intellectual property rights.
Copyright (copyright)
Natural science, social science, literature, music, drama, painting, sculpture, photography and film works constitute copyright. Copyright refers to the right of a unit or individual to print, publish and sell a work according to law. Anyone who wants to copy, translate, adapt or perform needs permission from the copyright owner, otherwise it will infringe on the rights of others. The essence of intellectual property rights is to treat human intellectual achievements as property. Copyright is the original author of literary, artistic and scientific works, and it is a civil right enjoyed by his works according to law.
Copyright: In China, copyright in a broad sense includes (in a narrow sense) copyright, neighboring rights of works, computer software copyright and so on. , which belongs to the scope stipulated by the copyright law. This is the exclusive right of the copyright owner to use the crop (work). In a narrow sense, copyright is divided into the right of publication, the right of signature, the right of modification, the right to protect the integrity of a work, the right to use it and the right to receive remuneration (article 10 of the Copyright Law). Copyright is divided into personal rights and property rights of works. Copyright, patent right and trademark right sometimes overlap, which is a feature of intellectual property rights.
Copyright:
1: Copyright comes into being from the date of creation.
2. Also called copyright. Divided into personality right and property right of works. Among them, the connotation of the personality right of a work includes the right of public publication, the right of name and the right to prohibit others from using the work to damage the author's reputation by distorting or tampering.
3. Have the following rights
(a) the right to publish, that is, the right to decide whether the work is open;
(2) the right of signature, that is, the right to indicate the identity of the author and sign his name on the work;
(3) the right to modify, that is, the right to modify or authorize others to modify a work;
(four) the right to protect the integrity of the work, that is, the right to protect the work from distortion and tampering;
(5) the right of reproduction, that is, the right to make one or more copies of a work by means of printing, photocopying, rubbing, audio recording, video recording, reproduction or reproduction;
(6) the right of distribution, that is, the right to provide the original or duplicate of a work to the public by way of sale or gift;
(7) the right to rent, that is, the right to temporarily license others to use film works, works created by methods similar to filming, and computer software, except that computer software is not the main object of rent;
(8) The right to exhibit, that is, the right to publicly display the original or duplicate of an artistic work or photographic work;
(nine) the right to perform, that is, the right to publicly perform a work and publicly broadcast the performance of the work in various ways;
(10) the right of projection, that is, the right to publicly copy art, photography, movies and works created by methods similar to filming through projectors, slide projectors and other technical equipment;
(11) Broadcasting right, that is, the right to publicly broadcast or disseminate works by wireless means, broadcast works to the public by wired or rebroadcast means, and broadcast works to the public through loudspeakers or other similar tools for transmitting symbols, sounds and images;
(12) the right of information network communication, that is, the right to provide works to the public by wired or wireless means, so that the public can obtain works at the time and place they choose;
(13) the right to make a film, that is, the right to fix a work on a carrier by making a film or by similar methods;
(14) the right of adaptation, that is, the right to change a work and create a new work with originality;
(15) the right to translation, that is, the right to convert a work from one language into another;
(16) the right of assembly, that is, the right to assemble a work or fragments of a work into a new work through selection or arrangement;
(seventeen) other rights that should be enjoyed by the copyright owner.
Copyright protects the expression of ideas, not the ideas themselves, because while protecting exclusive private property rights such as works' property rights, it also takes into account the accumulation of human civilization and the dissemination of knowledge and information, so algorithms, mathematical methods, technology or machine design are not the objects to be protected by copyright.
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Characteristics of intellectual property rights
(1) Intellectual property is an intangible property.
(2) Intellectual property rights are exclusive.
(3) Intellectual property rights have the characteristics of timeliness.
(4) Intellectual property rights have regional characteristics.
(5) The acquisition of most intellectual property rights requires legal procedures. For example, the acquisition of copyright is automatically generated from the date of completion of the work.
1, exclusivity, that is, exclusivity or monopoly; Without the consent of the creditor or the law, no one except the creditor may enjoy or use this right. This shows that the exclusive right of the obligee is strictly protected from infringement by others. Only through legal procedures such as "compulsory license" and "expropriation" can the exclusive right of the obligee be changed. The object of intellectual property is the intellectual achievement of human beings, which is neither a person nor a personality, nor something tangible or intangible outside, so it can neither belong to personality rights nor property rights. On the other hand, intellectual property is a complete right, but the interests as the content of the right are both economic and non-economic, so it cannot be said that intellectual property is a combination of the two types of rights. For example, copyright is the combination of personal rights (or personality rights or spiritual rights) and property rights, which is wrong. Intellectual property is a kind of right with complex content (multiple functions), economy and non-economy. Therefore, intellectual property rights should be juxtaposed with personality rights and property rights and form a class of their own.
2. Regionality, that is, it is only valid in the confirmed and protected areas; That is to say, unless an international convention or bilateral reciprocal agreement is signed, the rights protected by a country's laws will only take legal effect in that country. Therefore, intellectual property rights are both regional and international under certain conditions.
3, timeliness, that is, only within the prescribed protection period. In other words, the protection of various rights by law has a certain period of validity, and the length of the protection period can be the same or different. Only by participating in international agreements or making international applications can a certain right be uniformly protected.
4. Intellectual property is an absolute right, which is similar to the ownership in real right in some respects, such as the right to directly control things, which can be used, benefited, disposed of and controlled by other kinds (but there is no possession problem); Exclusive; Transferability (including inheritance), etc.
5. Intellectual property rights are restricted by law in several aspects. Although intellectual property is a kind of private right, although the law also recognizes its exclusiveness, but because people's intellectual achievements are highly public, closely related to social culture and industrial development, it is not suitable for anyone to monopolize for a long time, so the law stipulates many restrictions on intellectual property:
First, from the perspective of the occurrence of rights, the law stipulates various positive and negative conditions and publicity methods. For example, the occurrence of patent rights requires application and examination and approval. There are various conditions for the invention, utility model and design to be granted patent rights (Articles 22 and 23 of the Patent Law), but some matters are not granted patent rights (Article 25 of the Patent Law). Although there are no restrictions on the application, examination and registration of copyright, there are also restrictions in Articles 3 and 5 of the Copyright Law.
Second, the law has special provisions on the term of rights. This is a big difference between intellectual property and ownership.
Third, the obligee has a certain obligation to use or implement. The law provides for compulsory license or compulsory license system. For copyright, the law also stipulates a fair use system.
6, the legal characteristics of intellectual property rights. Legally speaking, intellectual property rights have three most obvious legal characteristics:
First, the regionality of intellectual property rights, that is, except for signing international conventions or bilateral and multilateral agreements, the rights obtained according to the laws of a country can only be valid within the territory of that country and protected by the laws of that country;
Second, the monopoly of intellectual property rights, that is, only the obligee can enjoy it, and others may not exercise their rights without the permission of the obligee;
Third, the limitation of intellectual property rights, the laws of various countries have stipulated a certain period of time for intellectual property rights, after which the rights will automatically terminate.
The head of the intellectual property department of Lantai Law Firm, which focuses on the legal protection of intellectual property rights, said, "Intellectual property rights refer to the exclusive rights enjoyed by citizens, legal persons or other organizations on the intellectual achievements completed by creative labor according to law, which are protected by law and shall not be infringed."
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(1) Provide legal protection for the rights and interests of people who have completed intellectual achievements, and mobilize people's enthusiasm and creativity in scientific and technological research and literary and artistic works.
(2) Providing a legal mechanism for the popularization, application and dissemination of intellectual achievements, transforming intellectual achievements into productive forces, and applying them to production and construction, resulting in huge economic and social benefits.
(3) Providing legal norms for international economic, technological, trade, cultural and artistic exchanges, and promoting the progress of human civilization and economic development.
(4) As an important part of modern civil and commercial law, the legal system of intellectual property rights is of great significance to perfecting our legal system and building a country ruled by law.
[Edit this paragraph] History
Once upon a time, especially in civil law countries, intellectual property rights were called intangible property rights and were included in property rights (alongside property rights and creditor's rights). Since the word "intellectual property" became popular all over the world, especially after the establishment of the World Intellectual Property Organization, the word "intangible property" has been completely replaced by "intellectual property". As for the division between intellectual property rights and property rights, it is because intellectual property rights have their own characteristics and are very different from property rights.
Knowing what rights intellectual property rights include, that is, how to classify intellectual property rights, is not only a theoretical issue, but also involves the provisions of existing national laws and international conventions. Article 2 (8) of the Convention for the Establishment of the World Intellectual Property Organization (1967) stipulates that "intellectual property" includes the following related property rights: literary, artistic and scientific works or works; Performances, records, recordings or broadcasts by performing artists; Human inventions in various fields through hard work; Scientific discovery; Industrial product design; Trademarks, service marks, trade names and marks; And all other intellectual activities in the industrial, scientific, literary or artistic fields.
According to this provision, intellectual property rights can be divided into two categories. The first category is to protect people's intellectual creation activities in all aspects of culture and industry, including copyright and invention rights; The second category is the protection of identification marks in industrial activities, including trademark rights and trade name rights. The former category can be divided into copyright that mainly protects and promotes spiritual culture and patent that mainly protects and promotes material culture.
But in fact, before the above convention, the Paris Convention for the Protection of Industrial Property (1883) has stipulated "industrial property rights", saying that the objects of industrial property rights protection include patents, utility models, industrial designs, trademarks, service marks, manufacturers' names, country of origin marks or names and the prevention of unfair competition. So intellectual property rights are generally divided into two categories: copyright and industrial property rights. Under industrial property rights, it is divided into patent right, trademark right and trade name right. This division also makes sense. Industrial property rights involve "industry", but copyright does not.
Nowadays, due to the progress of science and technology, the products of human wisdom should be more and more protected by law, and the scope of intellectual property rights is gradually expanding. For example, the number of protected objects has increased, such as layout design, computer software, proprietary technology, integrated circuits and so on. And it is still increasing. Therefore, intellectual property is now a general term for rights, and it is still expanding.
There are many problems about intellectual property rights that need to be studied.
1893 The International Bureau established under the Paris Convention for the Protection of Industrial Property and the International Bureau established under the Berne Convention for the Protection of Literary and Artistic Works have joined hands to form the International Joint Bureau for the Protection of Intellectual Property. The World Intellectual Property Organization was established in Stockholm on 1967, and 1974 became one of the specialized agencies of the United Nations. Its purpose is to cooperate with other international organizations through international cooperation in order to promote worldwide intellectual property protection and ensure administrative cooperation among intellectual property alliances. China joined the World Intellectual Property Organization on March 3, 1980, and became a full member of the organization on June 3, the same year.
The General Principles of Civil Law of People's Republic of China (PRC) stipulates six types of intellectual property rights, such as copyright, patent right, trademark right, right of discovery, right of invention and other scientific and technological achievements, and stipulates the civil law protection system of intellectual property rights. In the Criminal Law of People's Republic of China (PRC), the related contents of intellectual property crimes are also determined in Section 7, Article 8, thus determining the criminal law protection system of intellectual property rights in China. In addition, People's Republic of China (PRC) Patent Law, Trademark Law, Copyright Law, Invention Award Regulations and other separate laws and administrative regulations also stipulate relevant intellectual property rights.
[Edit this paragraph] The scope is constantly expanding.
Intellectual property is an expanding open system. The development of science and technology and social progress not only enrich the connotation of traditional types of intellectual property rights, but also expand the extension of intellectual property rights. According to the Agreement on Trade-related Intellectual Property Rights, the Convention on the Establishment of the World Intellectual Property Organization and other international conventions, and China's domestic legislation such as the General Principles of the Civil Law and the Anti-Unfair Competition Law, the scope of intellectual property rights mainly includes the following contents:
Copyright and neighboring rights. Copyright, also known as copyright, refers to the personal rights and property rights enjoyed by the authors of literary, artistic and scientific works and their related subjects according to law. Neighboring right is called "copyright-related right" in copyright law.
2. Patent right refers to the exclusive right of natural person, legal person or other organization to exploit inventions, utility models and designs within a certain period of time.
3. Trademark rights, that is, all kinds of rights enjoyed by trademark registrants or heirs of registered trademark rights within the statutory time limit.
4. The right to trade secrets, that is, the exclusive right that the civil subject enjoys according to law for technical information or business information belonging to trade secrets.
5. The right to new plant varieties, that is, the exclusive right to use varieties authorized by units or individuals who have completed breeding according to law.
6. The right of integrated circuit layout design means the exclusive right of integrated circuit layout design enjoyed by natural persons, legal persons or other organizations according to law.
7. Trade name right, that is, the exclusive right to use a trade name legally enjoyed by commercial subjects within a certain geographical scope.
There are great differences in theoretical circles about whether the right to reward scientific and technological achievements, the right to geographical indications, the right to domain names, the right to fight unfair competition, the exclusive right to database and the right to commercialization can become independent intellectual property rights.
[Edit this paragraph] Related knowledge
Headquarters of the United Nations World Intellectual Property Organization in Geneva
1893 The International Bureau established under the Paris Convention for the Protection of Industrial Property and the International Bureau established under the Berne Convention for the Protection of Literary and Artistic Works have joined hands to form the International Joint Bureau for the Protection of Intellectual Property. The World Intellectual Property Organization was established in Stockholm on 1967, and 1974 became one of the specialized agencies of the United Nations. Its purpose is to cooperate with other international organizations through international cooperation in order to promote worldwide intellectual property protection and ensure administrative cooperation among intellectual property alliances. China joined the World Intellectual Property Organization on March 3, 1980, and became a full member of the organization on June 3, the same year.
World Intellectual Property Day 4.26
The origin of World Intellectual Property Day
On the proposal of People's Republic of China (PRC) and Algeria 1999, the World Intellectual Property Organization adopted a resolution at the 35th General Assembly in 2000, and decided to designate April 26th as World Intellectual Property Day from 200 1. April 26th is the day when the Convention on the Establishment of the World Intellectual Property Organization (WIPO Convention) came into effect. The establishment of World Intellectual Property Day aims to establish a worldwide awareness of respecting knowledge, advocating science and protecting intellectual property rights, and to create a legal environment to encourage knowledge innovation and protect intellectual property rights.
Review on the theme of World Intellectual Property Day over the years
200 1: create the future today.
2002: Encourage innovation.
2003: Intellectual property rights are closely related to us.
2004: Encourage innovation.
2005: Thinking, Imagination and Creation
2006: Intellectual Property-Starting from the Concept
2007: Encourage innovation
2008: Respect intellectual property rights and praise innovation.
2009: Culture, Strategy and Development
20 10: innovation-linking the whole world.
From the relationship between innovation and intellectual property, there are three main ways.
First, independent innovation obtains intellectual property rights;
Second, joint innovation (that is, the combination of Industry-University-Research in the technological innovation system) to obtain intellectual property rights;
The third is to directly introduce intellectual property rights.
[Edit this paragraph] Intellectual property protection in China
Memorabilia (1978-2005)
1980 joined the World Intellectual Property Organization on June 3rd, becoming its 90th member.
1982, 1984, 1986, 1990, 1993, China's trademark law, patent law, general principles of civil law, copyright law and anti-unfair competition law were successively promulgated and implemented, and China's legal system for intellectual property protection was gradually established.
1978, 1980, 1985, the Trademark Office, the Patent Office and the Copyright Bureau were established one after another, and China's intellectual property administrative law enforcement system was gradually improved.
1993 and 1994, trademark associations in music copyright society of china and China were established one after another, and the organization of intellectual property trade associations was gradually improved.
65438+June 65438+1June 6, 1994, the State Council Press Office published the white paper "Intellectual Property Protection in China" for the first time, which elaborated China's basic position and attitude on intellectual property protection in detail. On July 5th, the State Council made the Decision on Further Strengthening the Protection of Intellectual Property Rights, and the Eighth Session of the Eighth the National People's Congress Standing Committee (NPCSC) adopted the Decision on Punishing Copyright Infringement Crimes. In September, the Supreme People's Court issued the Notice on Further Strengthening the Judicial Protection of Intellectual Property Rights.
199265438+1October 17 and 65438+1On February 26th, 1995, the Chinese and American governments signed two memorandums of understanding on the protection of intellectual property rights. Since 2003, China and the United States have held an annual round table on intellectual property rights, and reached a broad understanding on intellectual property issues.
1992 the patent agent regulations were promulgated and implemented, and the patent agent qualification examination began in the same year.
On September 16, 2000, the national trademark agent qualification examination was held simultaneously in Beijing, Guangzhou, Chengdu, An, Shen and Hangzhou, which was the first trademark agent qualification examination for the whole society.
1On September 5, 1996, the Standing Committee of the Eighth National People's Congress of Guangdong Province deliberated and passed the Regulations on Patent Protection in Guangdong Province, which became the first local patent protection regulation. Subsequently, Sichuan, Hubei, Shandong, Liaoning, Anhui, Shanxi, Zhejiang, Guangxi, Henan, Fujian, Xiamen and other places successively promulgated and implemented patent protection regulations.
1996 5438+00 in June, the Supreme People's Court established an intellectual property court to hear all kinds of intellectual property cases, and to guide and supervise the national intellectual property trial. Since 198 1, China's courts have continuously expanded the field of intellectual property trials, and successively launched various intellectual property cases such as copyright, trademark, patent, unfair competition, computer software and new varieties of objects.
1On June 3rd, 980, China became a member of the World Intellectual Property Organization. 200165438+February1KLOC-0/China joined the World Trade Organization and began to fulfill its obligations under the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS). This marks two milestones for the level of intellectual property protection in China to be in line with international standards. In addition, over the years, China has successively acceded to many international conventions, treaties, agreements or protocols such as the Paris Treaty for the Protection of Industrial Property, the Patent Cooperation Treaty, the madrid agreement concerning the international registration of marks, the International Convention for the Protection of New Varieties of Plants, the Berne Convention for the Protection of Literary and Artistic Works, and the universal copyright convention.
200 1 July1day, the second revised Patent Law of People's Republic of China (PRC) was implemented.
On May 22, 2003, People's Daily issued a statement: "In order to change the weak awareness of intellectual property protection of domestic enterprises, China National Intellectual Property Administration is actively implementing a project called' Patent Strategy Promotion Project', hoping to attract more and more enterprises to pay attention to intellectual property protection."
In August, 2004, the National Working Group on Intellectual Property Protection, headed by Vice Premier Wu Yi, was established to strengthen the overall coordination of intellectual property protection. After the establishment of the working group, a one-and-a-half-year special activity on intellectual property protection was deployed nationwide, and the annual "Intellectual Property Protection Publicity Week" was held. Establish a regular communication and coordination mechanism with foreign-invested enterprises, and hold a "seminar on intellectual property protection for leading cadres at the provincial and ministerial levels" to comprehensively improve the level of intellectual property protection in China.
Relevant legislation
(1), Patent Law. The Patent Law of China came into effect on April 1985. The patent system established according to law protects the patent right of invention and creation. Inventions include inventions, utility models and designs.
(2) Trademark Law. The Trademark Law of China came into effect on March 1985. On February 22, 1993 was revised, which expanded the scope of trademark protection and added provisions on the registration and management of service trademarks in addition to commodity trademarks. In the formal review, the correction procedure was added, and in the substantive review, the review opinion system was established.
(3) Copyright law. China's copyright law came into effect on June 199 1. 200 1 10 modified.
(4), computer software protection regulations. On June 65438+ 10/day, 2002, the Regulations on the Protection of Computer Software came into effect.
(5) Protection system for new plant varieties. China's Regulations on the Protection of New Plant Varieties came into effect on June 1 997+1October1day.
[Edit this paragraph] China's intellectual property law enforcement map
Courts, procuratorates and public security bureaus
China National Intellectual Property Administration Patent Office
Administration for Industry and Commerce and Trademark Office
Cultural Bureau, Press and Publication Bureau, Copyright Bureau
Ministry of Agriculture and Forestry
customs
Quality Supervision Bureau of Ministry of Information Industry, China Internet Information Center
Protection of intellectual property rights report complaint service center
China Intellectual Property Law Enforcement Map