To solve the legal conflicts of interregional intellectual property rights, we should follow the principles followed by general interregional conflicts. Generally speaking, there are (1) principles to promote and safeguard national unity; (2) the principle of "one country, two systems"; (3) the principle of equality and mutual benefit; (4) the principle of promoting and ensuring normal civil and commercial exchanges {3}.
The above are the basic principles guiding the application of interregional intellectual property laws, but based on the particularity of interregional intellectual property rights, generally speaking, when considering the conflict law solution of interregional intellectual property rights conflicts, the author thinks that the following two points should be emphasized:
1. Principle of autonomy of will
In the field of private law, the principle of autonomy of will is a basic principle that is generally followed. Although intellectual property has the characteristics of public rights, it still belongs to private rights in essence and is one of the basic civil rights. Especially on the issue of interregional conflicts of intellectual property rights within a country, we should consciously weaken the public rights characteristics of intellectual property rights and emphasize their private rights.
In the interregional conflict of laws in the field of private law, determining the application of law by the principle of autonomy of will can better realize the wishes of the parties and safeguard their interests. "Especially in the special case of interregional conflict in China, the confrontation between different systems will make all regions think too much about the interests of the government and put personal interests behind them, causing undue damage to personal interests. Incorporating and perfecting the principle of party autonomy can protect the interests of the parties to a certain extent and make the inter-regional personal exchanges develop normally "{4}.
For interregional conflicts of intellectual property laws, especially in the field of intellectual property contracts, such as the transfer of patent rights, the parties should be allowed to choose the applicable law. Regarding the substantive issues of contract disputes, domestic legislation, judicial practice and international legislation all stipulate that the law of party autonomy can be applied-that is, the principle of party autonomy can be adhered to. This principle contains the dual meanings of the parties' right to negotiate the substantive terms of the contract and choose the applicable law. Of course, the application of the applicable law chosen by the parties will encounter some restrictions: first, the law chosen by the parties must be substantive law, not procedural law or conflict law; Second, the parties must choose the applicable law in good faith and legally, and must not violate the mandatory provisions of relevant national laws or mandatory laws.
2. Respect the principle of extraterritoriality
As a sovereign country, interregional legal conflicts within a country should usually respect foreign laws and actively limit the application of local laws. So should the conflict of intellectual property law.
In recent years, there is a view in the field of conflict law in the United States, which emphasizes expanding the application of laws in other jurisdictions under certain conditions and respecting the policies of other jurisdictions. According to this theory, when solving interregional legal conflicts, applying the laws of the conflicting jurisdictions under certain conditions will enable the jurisdictions to take mutually beneficial actions when handling other cases. Therefore, a reasonable solution to the conflict is beneficial to both parties, not necessarily one party will benefit and the other party will suffer {5}. In the application of interregional laws in China, if we can attach importance to the application of laws in other jurisdictions instead of overemphasizing the application of forum law, then the atmosphere of equal choice of internal and external laws will be gradually established in the adjustment of interregional legal conflicts, which is conducive to the good settlement of interregional legal conflicts, and the result will be to maximize the interests of all jurisdictions in the long run.
Second, China interregional intellectual property law application practice
Strictly speaking, the study on the application of interregional intellectual property law in China should involve the practice of other jurisdictions. However, due to the limitation of space, the author only studies Chinese mainland's problems below.
At present, Chinese mainland has not promulgated any legislation specifically regulating foreign-related conflicts of laws, but only some conflict of laws norms scattered in substantive law and procedural law. However, the provisions on adjusting the conflict of laws concerning foreign-related intellectual property rights are even more inadequate. There are only some relevant legal and judicial interpretations. The provisions on the implementation of international copyright treaties issued by the State Council in September 1992 and the notice on further implementation of the Copyright Law of People's Republic of China (PRC) issued by the Supreme People's Court in February 1993 (hereinafter referred to as the "Notice") stipulate the jurisdiction and legal application of foreign-related copyright cases. That is, "China's copyright law and other laws and regulations should be applied to the trial of foreign-related copyright cases, and China's domestic laws and international treaties to which China is a party have different provisions, except those treaties that China has declared reserved; If there are no provisions in domestic laws and international treaties, the trial shall be conducted in accordance with the principle of reciprocity and with reference to international practice. " From the above notice and the provisions of China's Copyright Law, it can be seen that the laws applicable to foreign-related copyrights in Chinese mainland are: international treaties, domestic laws and international practices.