First, China had intellectual property thought in ancient times.
British scholar Dr. Needham (J. Needham1900-1995) put forward a question in the first volume of "History of Science and Technology in China" published in 1954: In the fourteen centuries before modern times, China's understanding of natural phenomena and the knowledge and technology used to benefit mankind were far better than those in Europe, but why in modern times? Scholars in science, technology, economy and education at home and abroad have done a lot of research on this issue from various angles. However, there is little research in the legal field. Recently, some scholars began to study this issue from a legal perspective, which is also necessary for the legal history of intellectual property in China.
Professor Zheng is the representative of the view that intellectual property protection did exist in ancient China. In the book On Intellectual Property published in 2003, the author clearly pointed out that there were many forms of intellectual property rights in ancient China, and thought that the state's control of ideas did not necessarily lead to intellectual property protection. In addition, although the commodity economy in ancient China has not been fully developed. However, this does not mean that there is no commodity economy. As long as the commodity economy exists, the objective requirements for intellectual property protection exist objectively. The ruling class itself is not interested in intellectual property protection, but it does not rule out that in some cases, it may be a means to protect intellectual property for other political purposes. Finally, and most importantly, scholars who have conducted in-depth research on China's ancient historical materials have found a lot of intellectual property protection, especially in copyright protection.
The author believes that intellectual property rights did not exist from the beginning. In ancient China, traffic was blocked, information was scarce, and information circulation was extremely poor. There is no need to invent and create objective conditions without protection. Later, with the development of society, inventions were gradually derived. Although the centralized kingship did not recognize the exclusiveness of private creation, in ancient China, everything belonged to the emperor, but it did not mean that the idea or behavior of protecting intellectual property rights did not exist. Perhaps the protection it embodies does not meet the strict definition of intellectual property protection, but it does not mean that they are not intellectual property protection, but this protection is incomplete and one-sided.
Second, the protection of ancient intellectual property rights.
(1) Copyright system
Copyright, also known as copyright, is some special rights that authors have enjoyed for their literary, artistic and scientific works. They may not publish or change it without consent. The original copyright system has lasted for more than 700 years in China. Before the invention of printing, the dissemination of literary, artistic and scientific works mainly depended on manuscripts, and it was rare for manuscripts to be sold as commodities in the market. After the invention of movable type printing, a work can be printed and sold in multiple volumes, and the copy of the book, the carrier of the work, has become a profitable commodity for printers. In order to monopolize the printing and sales of some works, printers send the works to be printed to the government for examination, requesting exclusive operation. In the Southern Song Dynasty, China printed Wang Chong's "A Brief Introduction to the East Capital" from Meizhou, Sichuan, and there was a sentence on the directory page that the boss was not allowed to cover the plate. China protects engraving publishers in the form of ban, and has never established a national copyright protection system in history. It was not until 1903 that the Qing government signed the Sino-US Revised Treaty on Commerce and Navigation with the United States, and the word copyright was used in Chinese. Emperor Guangxu still issued an imperial edict to protect the exclusive right to reprint Jiutong Classification. At the end of the Qing Dynasty, influenced by western culture, the Qing Dynasty imitated the legislative system of European continental law system and compiled new laws. 19 10, the copyright law of the Qing dynasty was the first copyright law in the history of China.
Copyright is a kind of property right. From the historical books or unorthodox historical books, we can see that ancient China literati paid for their works for a long time. Everyone is familiar with the fact that Queen Chen took her daughter to buy blessings. Fortunately, a long door is assigned a thousand dollars, which is called remuneration in modern times. According to relevant historical records, a large number of classical literary works since the Spring and Autumn Period and the Warring States Period have been signed by authors, such as Laozi and Mencius. This shows that ancient scholars have realized the importance of the author's right of signature and other rights, and plagiarism will be strongly condemned by society. It is not difficult to see that the ancient people in China also generally held a respectful attitude towards the intellectual property rights of literati. The reason why copyright exists widely among the people, but it is not stipulated in the law and not included in the institutionalized track, is directly related to the feudal society's ideological tendency of attaching importance to agriculture and restraining commerce, imperial control and disrespect for individuals.
(2) Trademark right system
Trademarks are used by producers and operators of commodities on the commodities they produce, manufacture, process, select or distribute, or by service providers to distinguish the sources of commodities or services, and are special signs used on commodities to distinguish producers and places of origin.
According to epic records, the earliest shop signs in China appeared more than 2,000 years ago. They are flags made of cloth, such as Longmen Escort Agency, which is a shop signboard with the functions of marking and identification. In the Song Dynasty, China had relatively complete trademarks, and well-known trademarks and trade names increased. Some signs are used on the packaging of goods to purposefully let consumers identify the source of goods, not only in words, but also in kind. Producers in tea, silk, clothing, medicine and other industries maintain their trademarks by printing marks on their utensils, publicly declaring that others may not use the relevant marks and registering their marks in guilds and local government offices. The code of dynasties did restrict the use of certain symbols related to the royal family or the official government through a set of carefully formulated laws, such as the five-claw dragon representing the imperial power. It also prohibits imitating the symbols used by Jingdezhen ceramic artists and others who specialize in making utensils for the royal family, and stipulates that it is illegal for some craftsmen to transfer their skills to foreign countries. However, these bans do not mean a more centralized regulatory model.
Of course, owning a trademark does not mean having protection for the trademark. China's ancient social rulers' deep-rooted concept of attaching importance to agriculture and restraining business, the lack of overall private law, and the lack of necessary political support and institutional basis for trademark protection did not produce a complete trademark protection law in ancient China. In ancient China, the main way to adjust civil relations was feudal ethics. One of the cores of feudal ethics is benevolence, righteousness, courtesy, wisdom and faith. Nothing is more useful than determining etiquette with proper morality and behavior. In this way, etiquette promotes social order and restricts individual behavior. Therefore, China ancient society, especially businessmen, attached great importance to the credit in transactions, and the exclusive right to use trademarks was effectively protected by the constraints of ethics.
Although ancient writers or businessmen tried to protect proprietary marks and procedures, it is still very difficult to achieve this goal, not only because of the political system, but also because of traffic congestion and information asymmetry. Therefore, when encountering modern infringement problems, for example, businessmen and producers will directly solve these problems through guilds or organizations. When the organization can't solve it, it will turn to the government for help. This is not to say that it is illegal to sue counterfeiters. In ancient China, there was no clear statutory provision for this kind of infringement, but officials were required to prevent unjust, false and misjudged cases, and used their power to order the infringer to stop copying. In fact, in China's ancient feudal society, the example of intellectual property protection was entirely to consolidate imperial power. These official protection of private creative activities is only an incidental act, or an act dominated by the money or rights of intellectual property owners.
Since the Opium War, the invasion of western powers, the forced opening of the market and the development of national industries, a trademark legal system began to form in modern China. 1902 During the negotiation of the Sino-British treaty on trade and navigation, the British side strongly urged China to enact a trademark protection law. This is the first time that the central government of China has signed the contents of trademark protection, trademark registration and trademark management with foreign countries. From 65438 to 0904, the Qing government promulgated the first trademark law in the history of China-the Trial Trademark Registration Regulations, which provided a relatively complete blueprint for China's trademark legislation. The Trademark Law formulated by Beiyang Government 1923 and its detailed rules for implementation are based on the Articles of Association for the Registration of Pilot Trademarks. In order to implement the Trademark Law, the Trademark Office of the Ministry of Agriculture and Commerce of Beiyang Government, the first central government trademark registration authority in Chinese trademark history, was formally established. In accordance with the Trademark Law, the first product trademark was registered, and the first comprehensive publication in China's trademark history, such as the Trademark Bulletin, was edited and published. The first place in the history of the development of all these Chinese trademarks was in the early days of the establishment of the Nanjing National Government, which was born during the rule of the Beiyang Government in 1923. The Nanjing National Government revised the Trademark Law in 1935 and 1940, which made the constitutive requirements of trademarks, the scope of exclusive rights of trademarks and the protection procedures more suitable for the needs of social and economic development at that time.
(3) Patent system
From 65438 to 0859, Hong Rengan, the leader of the Taiping Heavenly Kingdom, put forward the idea of establishing a patent system in the New Chapter of Shangshu. 188 1 year, Zheng, a bourgeois reformist, wrote to Li Hongzhang, the minister of Beiyang in the Qing Dynasty, requesting to apply for a 10-year patent for the weaving technology of Shanghai woven layout. Subsequently, some new processes and technologies applied for patents, and the number of patents approved was also increasing. Under the impetus of the Reform Movement, Emperor Guangxu promulgated the first patent-related regulation in China's history-the Charter of Awarding Awards for Revitalizing Craft in May 1898. Later, due to the strong opposition of the die-hards, the patents advocated by the reformists have not been put into practice. Therefore, the patent system was not established and developed in China until the late Qing Dynasty. 191212 In February, the then Ministry of Industry and Commerce promulgated the Provisional Regulations on Award Technology. This became the first written law in China, which has some elements of the basic principles of modern patent law.
As far as the invention patents of intellectual property rights are concerned, it is recorded that a noble family in ancient times developed a medicine that turtles could not use. A counselor bought a prescription with a huge sum of money, and later prepared to use it for his own soldiers, defeating a strong enemy, and the counselor also became an official. According to records, people had the consciousness of treating inventions as special property more than two thousand years ago, but at that time, an independent intellectual property system had not been developed. In the absence of standardized and written protection innovation in ancient China, people protected their rights and interests in their own way. Among them, the most widely used is to protect their own economic interests by keeping technical secrets. For example, the famous Tongrentang herbal medicine manufacturer only relies on hiring family members or eunuchs and keeping the secrets of key production procedures from people outside the family to maintain the confidentiality of its production process. For example, the self-reliance Sect, the secret recipe of the family, children are not passed on to women. The ancient government also acquiesced in such protective measures. This has supported the development of folk science and technology that China has been leading the world for thousands of years. Although it is not included in the legal provisions, it cannot be denied that it is indeed effective.
Third, the conclusion
The hotbed of legal construction in ancient China was the supremacy of imperial power in feudal society. This exclusive imperial power and feudal politics can not provide sufficient conditions for the development of intellectual property system. In this harsh environment in ancient times, people can still let intellectual property exist and develop in the cracks. For our modern society, with the acceleration of the national legal system, the intellectual property system should become the focus of construction, development and improvement. In today's complementary Germany and France, we can't just rely on ancient rituals to regulate people's behavior, but should formulate more perfect laws and regulations to raise the protection of intellectual property rights to the level of complete legal norms.