Because intellectual property rights involve the interests of multiple subjects, such as the interests between the obligee and the public are the most important, the length of protection period will affect the above interests. Another example is the balance of interests between the obligee and the prior user in the patent. In order to protect the prior users who have invented a technology but did not apply for a patent on the filing date, the law gives the prior users the right of first use and can defend the patent right. Of course, there are many examples, such as fair use in copyright law, which also involves public interests. If an individual copies a small number of works for appreciation or research, it does not constitute infringement, and so on. You can find it in the intellectual property law.
First, the meaning of the principle of intellectual property balance
The so-called balance, from the perspective of law and economics, refers to the interactive form in which all parties reach the maximum goal at the same time and tend to exist permanently. In the theory of intellectual property rights, balance involves reaching a balance between the productivity and exclusiveness of information and the closeness of information. Intellectual property can be regarded as some kind of information, and from the perspective of information property, intellectual property can be regarded as some kind of information property and information property. In a certain period, the capacity of information is always limited. In this limited amount of information, proprietary information and public information are interrelated. Too many proprietary ingredients will inevitably cause obstacles to the acquisition of information, thus affecting the public's access to information and the free flow of information, and will eventually hinder the realization of the purpose of intellectual property system; If there are too many public components, it will form a weak protection of intellectual property rights, which may lead to a serious lack of motivation for information production, resulting in the scarcity of information, which is ultimately not conducive to maximizing social utility. In such a simple analysis, we can draw the conclusion that the intellectual property system should achieve an appropriate balance among information production, information exclusivity and information accessibility.
Balance theory, especially the balance theory that emphasizes the balance of interests, is the theoretical basis of intellectual property system.
Second, the content of the principle of balancing intellectual property interests
1, the balance between the creator's incentive to engage in intellectual creation and the incentive to spread intellectual creation.
Through intellectual efforts, human beings have created works, technologies and products, formed intellectual property rights and information resources, and promoted social prosperity and progress by entering the market and being used by the public. The circulation of these intellectual property rights in the market shows its economic value and is called intellectual property rights within the scope of ownership confirmation. From the economic and market point of view, the realization of these intellectual property rights depends on the creation cost of knowledge products, the needs of potential use, the market structure and the legal right to allow their owners to control their use. The latter point is particularly important, which involves not only the realization of the rights of the owners of knowledge products, but also the incentive to the production of knowledge products and the effectiveness of their circulation in the market. In the language of information property rights, it is the effectiveness and degree of information diffusion, that is, the spread of intellectual creation. Therefore, in the sense of complete balance, it is not enough to only encourage information creation and intellectual creation. The dissemination of information is as important as the use of intellectual creation. The design of an intellectual property system can stimulate intellectual creation to the greatest extent, but if there is no corresponding exchange incentive mechanism, the overall social utility of this intellectual property system can hardly be called the best. As a kind of private property rights, the existence of costs and benefits shows that intellectual property rights can be used as an incentive to create things conceptually. But behind this right, there is a need for the diffusion and proximity of knowledge products. When establishing intellectual property rules, society must establish such a balance: the needs of intellectual property owners to control their intellectual products and the needs of users to use them, such as the necessary use of intellectual products by individuals, subsequent inventions and intellectual creation.
In other words, the intellectual property system should establish an appropriate balance between the creation and dissemination of intellectual property rights. At this point, the system provides an important guarantee for stimulating creation and encouraging communication through the following aspects: (1) allowing market-oriented stimulation to promote creation; (2) Minimizing the cost of creative activities; (3) In order to achieve the economic and social goals, the fair use system of inventions and creations should be stipulated in time; (4) through interconnection with other rules or economic systems, such as anti-monopoly policies, trade and policies that affect the value of intellectual property rights, etc.
Although different systems have different economic and social goals in intellectual property rights, they all try to provide sufficient incentives for the development of new technologies, information products and artistic creation, and ensure the effective distribution of knowledge products in the economy to maintain a balance. From the perspective of policy tools and market operation mechanism, intellectual property system is an excellent means to solve the failure of market development and information flow, because the stimulation of intellectual creation is market-centered. In fact, in the contemporary intellectual property system, it not only protects the efforts of authors and inventors, but also spreads information as widely as possible.
2. The balance between the creator's motivation to engage in intellectual creation and the user's demand and use of intellectual creation.
From the perspective of "interests", knowledge creators, other intellectual property owners who have rights to knowledge creation and the public all have legitimate interests in knowledge products. The foundation of the creator's legitimate interests is the fact of his intellectual creation, while the foundation of the public's legitimate interests lies in the sociality and inheritance of intellectual products and the legitimate demand of human development for knowledge. As long as there is a growing public ownership of ideas that can be used by everyone with small restrictions, then everyone has at least as much opportunity to possess ideas as the first person who occupies resources in the wilderness. There is a balance between those ideas that are divorced from public ownership through privatization and those that society mainly depends on. From the perspective of intellectual property as an information and non-competitive commodity, in order to allow maximum access to information, there is an information distribution problem in achieving the best social utility goal of intellectual property law. This also raises the problem of establishing an ideal balance between the creation of incentive information and the approach of information. The essence of this problem is to encourage the balance between the use and demand of intellectual creation by the public.
3. Balance between private interests and public interests in intellectual property rights.
Private interests in intellectual property rights are self-evident. Private interests in intellectual property rights are manifested in that by being given exclusive rights, intellectual property owners can obtain spiritual and economic benefits by monopolizing knowledge creation. The intellectual property laws of modern countries have made comprehensive provisions on the exclusive rights of intellectual property owners as far as possible. The important purpose of the intellectual property system is also to protect the intellectual property rights of intellectual property owners. Moreover, in recent years, this kind of exclusive right has a growing trend. Taking several newly revised special laws on intellectual property rights in China-Patent Law, Copyright Law and Trademark Law as examples, an important feature is to strengthen the protection of rights. This strengthening is conducive to better realizing the private interests of intellectual property owners. However, in the self-interested market, the possible expansion of private interests of intellectual property rights has aroused some scholars' concerns. The interests of intellectual property owners are only one end of the intellectual property balance mechanism-there are also public interests in intellectual property. The excessive expansion of private interests in intellectual property rights may harm public interests and make the public goal of intellectual property rights system impossible to achieve. From the perspective of interest balance theory, the intellectual property system also tries to establish a delicate balance between the incentive function and distribution of intellectual property law, and between public interests and private interests.
Furthermore, although the intellectual property law belongs to the nature of "private law" as a whole, it all has the goal of public interest, but it is different in different intellectual property laws. For example, in the copyright law, it is manifested in promoting knowledge learning, promoting cultural and scientific progress, and facilitating information acquisition and information flow. In patent law, information exchange and access to technology and information ultimately promote scientific and technological progress. Without the protection of public interests, the legislative purpose of intellectual property rights cannot be achieved. Therefore, in intellectual property rights, major public interests should also be encouraged. The protection of creators and communicators based on the protection of public interests will be the main mechanism to realize the balance between private interests and public interests in intellectual property rights.
Third, the function and significance of the principle of balancing the interests of intellectual property rights
Because intellectual property rights are exclusive rights and monopoly rights. The granting of this monopoly right is completely justified in terms of the labor theory of intellectual creation, the personality attribute of intellectual products and the level of motivation. However, the object of intellectual property rights-intellectual products (or intellectual products) has the characteristics of intangibility and inheritance, which makes it also have the attributes of public goods. In other words, the public also has a legitimate demand for it. One of the main goals of intellectual property law is to maximize creative expression. The law seeks an appropriate balance between the creator's right to the fruits of his labor and the future creator's right to express freely, and tries to achieve such a goal. Lack of intellectual property protection will reduce the motivation of creation; However, the excessive protection of creative monopoly will go beyond the original intention of creative expression. In this way, when legislating intellectual property rights, legislators must consider two issues: first, to what extent legislation can stimulate creators and benefit the public; Second, how much harm will be caused to the public by granting monopoly rights. The granting of this monopoly right, under appropriate conditions, gives the public a kind of income, which exceeds the disadvantages brought by temporary monopoly. For example, the copyright law provides two mechanisms through which the rights of copyright owners can be protected without damaging the public's access to information. The first aspect of these designs is that there is a clear difference between copyrighted expressions and thoughts and facts without copyright. On the one hand, the ideas in the works have no copyright, and advocating the protection of ideas will slow down the social utility because it hinders the dissemination of information. On the other hand, the expression of ideas is protected by copyright, and through this protection, copyright law provides basic protection for the rights of authors. The second aspect is the means to ensure a proper balance between the public's need to use information and the author's monopoly on original works.
In the intellectual property system, the monopoly of intellectual property owners on intellectual products and the legitimate demand of the public for intellectual products constitute two contradictory aspects. This contradiction always exists, and the intellectual property system reflects the mutual growth and decline of this contradiction from design (legislation) to implementation. In order to realize the purpose and function of intellectual property system, it is of great significance to establish the principle of balance. Otherwise, either the intellectual property rights are too large, which damages the public's right to access and use knowledge products, thus making the fundamental purpose of the intellectual property system-to stimulate the production of creative knowledge products beneficial to society by providing adequate protection for knowledge products, and at the same time to promote the wide spread of such knowledge products, thus providing legal protection for social civilization and progress-impossible to achieve; Or harm the interests of intellectual property owners, so that the motivation for the production of intellectual products is insufficient and the purpose of intellectual property system cannot be achieved.
Judging from the trajectory of foreign intellectual property legislation for hundreds of years, on the one hand, the rights of intellectual property rights holders are expanding with the development of new technologies, on the other hand, the scope of public information freedom is also expanding gradually. As a fundamental guiding principle behind the design and implementation of legislation, it is actually the principle of balance of interests. Of course, we do not deny that this principle also exists in general law and is even regarded as an important methodology of legal interpretation. However, in the legal system of intellectual property rights, the characteristics of interest balance may be much stronger than other departmental laws. This is mainly due to the following reasons: (1) A right is explicitly granted an exclusive right by law, which is rare in other laws; Moreover, in the intellectual property law, we must solve the scope and boundaries of this exclusive right-legally embodied in the limitation, timeliness and regionality of intellectual property rights, as well as the areas and degrees that the public can obtain freely or limited; (2) The fundamental purpose of intellectual property system determines that its legislative design must focus on the distribution of exclusive rights and the setting of public domain, as well as the reasonable and fair distribution of exclusive rights and public rights; (3) With the development of society, the exclusive right of intellectual property is constantly expanding, and the public's reasonable demand for knowledge products is also expanding. The two are always contradictory and unified, and need to constantly revise the legislation to improve it; (4) In the judicial practice of intellectual property rights, the principle of interest balance is used to guide judicial practice.
The theory of interest balance focuses on the contradiction between the exclusiveness of intellectual property rights and the legitimate demand of society for intellectual products, discusses the legitimacy and rationality of the principle of interest balance in intellectual property system, and tries to put forward a theoretical framework and system of intellectual property system based on the principle of interest balance by analyzing the distribution of various rights and interests involved in intellectual property rights. It should be said that this concept and theoretical construction is worthy of full attention in the theoretical sense of intellectual property law. This paper first expounds the idea of this balance theory from the relationship between information production, control, information freedom and access to information, and then extracts some substantive principles of this idea. We can see that the balance of interests can indeed be used as a methodology to understand the intellectual property system.
Intellectual property system is a typical interest balance mechanism. The construction of interest balance mechanism takes into account the exclusive rights of intellectual property rights holders and the interests of public free access to information, and finally makes the intellectual property system expand the total amount of information by limiting the access to information, which provides a guarantee for greater freedom of information. From the perspective of freedom of rights, in the field of intellectual property rights, the definition and distribution of rights in society can be divided into "exclusive zones" and "free zones". The so-called exclusive area refers to the exclusive area of the creators of knowledge products. In the exclusive area, others generally have to obtain the consent of the obligee and pay him. In other cases (such as legal license and compulsory license), although no license is needed, he has to pay the obligee. The so-called free zone refers to the use of knowledge products without the permission of the right holder and without paying the fee to the right holder. The fair use principle in the copyright system is a typical example in this respect. The establishment of exclusive zones can provide sufficient incentives for intellectual creators to engage in the production of intellectual products, which is beneficial in economics. The establishment of free zone is also conducive to the dissemination and utilization of information, without harming the interests of knowledge creators. This distribution of exclusive areas and free areas actually reflects the balance of interests between intellectual property owners and users of intellectual products.
Four. conclusion
Intellectual property law is an important legal system to stimulate knowledge creation and promote technological, economic and cultural progress. The development of society needs rich and varied knowledge products. Giving the creator of knowledge products exclusive rights to knowledge products is an important legal mechanism to stimulate the production of knowledge products. However, the operation of intellectual property law, a property right system, comes at a price, which shows that the granting of exclusive rights restricts the free flow of knowledge and information. Therefore, it is necessary to balance the interests between the exclusive right to knowledge and the right to enjoy knowledge in order to maximize the overall welfare of society. In hundreds of years of intellectual property legislation design and judicial practice, people have gradually found that the principle of balance of interests plays a substantial role as a fundamental guiding principle. From the perspective of foreign intellectual property legislation and judicial practice, the principle of interest balance in intellectual property law has been developed through judicial practice and has been clearly used to guide judicial practice and legislative revision and improvement. Scholars at home and abroad are increasingly aware of the principle and mechanism of interest balance in intellectual property law. In the whole historical development process of intellectual property law, interest and balance have always been the main theme of the development of intellectual property law. The general trend of intellectual property rights in history is continuous expansion, and behind this expansion is also the interest and balance mechanism at work. In contemporary intellectual property legislation and international conventions on intellectual property, interests and balance are still the focus of intellectual property law. Based on this, we have to admit that the balance of interests is the theoretical basis of intellectual property rights.