Before the Uruguay Round, intellectual property rights were not involved. Due to the increasingly close ties between economic globalization and international trade, developed countries and China have begun to attach importance to the protection of intellectual property rights.
There are two main reasons why intellectual property protection is still weak.
The first is the domestic aspect. Although the legal system of intellectual property rights has been established for hundreds of years, by the 1980s, there were still some countries with imperfect legal systems of intellectual property rights. Even in countries that have enacted intellectual property laws, there are still many problems. Many countries often set many restrictions on foreigners' access to intellectual property protection in their own countries and require complicated procedures, which makes it difficult for foreigners' intellectual property rights to be protected by law in their own countries. At the same time, the legislation of different countries is quite different, which also hinders the protection of intellectual property rights.
The second is the international aspect. From the conclusion of 1883 Paris Convention to the beginning of Uruguay Round negotiations, a series of international treaties have emerged for more than a century, forming an international protection system for intellectual property rights. As far as this system is concerned, although it has played a great role in the international protection of intellectual property rights, there are still many shortcomings that need to be continuously improved. The main problems are as follows:
(1) The influence scope of multilateral international treaties is too small. Apart from the Paris Convention, the Berne Convention, the universal copyright convention Convention and the Convention on the Establishment of the World Intellectual Property Organization, there are too few parties to many other international treaties. For example, the Trademark Registration Treaty has only a few parties, which makes it difficult to play its role.
(2) Many international treaties have serious defects. As far as the three international conventions that play the most important role in the field of international protection of intellectual property rights-Paris Convention, Berne Convention and universal copyright convention-are concerned, they all have great defects. First of all, these conventions have no strong institutions to ensure their implementation. Although most major conventions are managed by the World Intellectual Property Organization (WIPO), the organization has not established a strong safeguard system to ensure that all conventions can be observed in all contracting States. Second, the Convention does not stipulate the punishment that a State party should give when it violates the Convention, which makes other States parties helpless when one country violates its own obligations and lacks effective retaliation or punishment measures. Third, many conventions allow States parties to make such extensive reservations that their provisions exist in name only. Fourth, the provisions of many conventions are too general, leaving a lot of room for States parties to evade their obligations.
(3) The Convention lacks a mutual coordination mechanism, which makes it impossible to carry out extensive international cooperation in the field of intellectual property protection.
(4) The existing international protection system cannot meet the requirements of the new technological revolution. The existing system mainly protects patents, trademarks, copyrights and their neighboring rights, but some achievements of the new technological revolution, such as life engineering and microelectronics technology, have not been included in this system.
The weak international protection of intellectual property rights has become a serious obstacle to international trade.
First of all, with the continuous development of high technology, the goods in international trade, especially those exported from developed countries to developing countries, are high in technology and often contain many patented technologies; However, the level of intellectual property protection in most developing countries is not very high, and the lack of legal protection for these high-tech products has affected the export of high-tech products to these countries.
Secondly, the share of technology trade and copyright trade in international trade is rising, and the weak protection of intellectual property rights has affected the normal development of technology trade and copyright trade.
Finally, with the development of international service trade, the requirements for trademark, trade name, trade secret and anti-unfair competition protection are getting higher and higher, but there is no unified international standard in these aspects, which constitutes an obstacle to the development of international service trade.
(2) Principles and objectives of intellectual property negotiation
The ministerial declaration on "Trade-related intellectual property rights, including trade in counterfeit goods" pointed out that,
"In order to reduce distortions and obstacles in international trade, take into account the necessity of promoting full and effective protection of intellectual property rights, and ensure that the measures and procedures for implementing intellectual property rights do not pose obstacles to legitimate trade, the negotiations should be aimed at clarifying the provisions of GATT and formulating new rules and disciplines as appropriate.
Negotiations should focus on formulating a multilateral framework of principles, rules and disciplines to deal with international counterfeit trade, taking into account the work already completed by GATT.
These negotiations shall not hinder other complementary actions that the World Intellectual Property Organization and other institutions may take to deal with these issues. "
Regarding the nature of intellectual property rights, the fourth paragraph of the preamble of the agreement gives a clear answer-intellectual property rights are private rights.
Intellectual property rights should be protected by civil law.
At present, the word "private right" is rarely used in various fields of legislation, judicial practice and legal research in China. What is equivalent to "private rights" should be "civil rights". Therefore, intellectual property is generally regarded as a civil right in the field of civil law and intellectual property research in China. The statement about the nature of intellectual property in TRIPS Agreement makes it clear that intellectual property is a civil right. Since it is a civil right, it should be regulated and protected by civil law. This is also in line with China's civil legislation practice.
It should be noted that although intellectual property as a civil right is protected by the general principles of civil law, it does not mean that intellectual property law is also a branch of civil law. At present, many people in academic circles bring intellectual property law into the civil law system, which is correct from the perspective of the nature of rights, but it is debatable from the perspective of legal departments. As for which department the intellectual property law belongs to, we think we should classify the norms of intellectual property law before drawing a conclusion.
The basic norms of intellectual property law, whether copyright law, trademark law or patent law, are nothing more than two categories: norms about the rights enjoyed by obligees and their protection, and norms about the conditions and procedures for obligees to obtain rights.
The norms about the rights enjoyed by obligees and their protection belong to what people usually call "substantive norms". Judging from their departmental classification, since these norms involve the content, exercise and protection of intellectual property rights, which belong to civil rights, they should be the same in nature as the norms on the content, exercise and protection of civil rights in the General Principles of Civil Law. Therefore, as far as these "substantive norms" are concerned, they should belong to a part of civil law.
The conditions and procedural norms for the obligee to obtain rights belong to what people usually call "procedural norms". This part of the specification mainly involves the procedures and steps for the obligee to obtain intellectual property rights and the rights and obligations in the procedures and steps. Because the relevant procedures and formalities required for obtaining intellectual property rights belong to administrative procedures in nature, these norms should be included in the scope of administrative law.
All intellectual property laws are composed of at least these two basic norms. However, by comparing the status of two different norms in intellectual property law, we will find that, besides the copyright law of countries that implement automatic protection system, the dominant norm in intellectual property law is not the substantive norm that stipulates the rights of the obligee and its protection, but the procedural norm about how the obligee obtains the rights.
It can be concluded that it is wrong to classify intellectual property law into civil law in general. In fact, judging from the nature of its main norms, intellectual property law should be incorporated into administrative law. However, as a legal norm, whether intellectual property law should be incorporated into civil law and administrative law or become a separate department does not seem to have much significance in practice. Since intellectual property is a civil right, its protection should be the same as civil rights. As far as intellectual property is concerned, its protection is mainly achieved by stopping the infringement of others. From the content of rights contained in the specific types of intellectual property rights in this book, it can be found that the basic right of intellectual property rights holders is to prohibit or stop others from carrying out related acts without their permission.
. But personally, I think intellectual property law should be incorporated into economic law, but the essential element of intellectual property is that it can reflect the objective market value. That is to say, the so-called intellectual property rights can be measured in specific currencies, otherwise no one will apply for a patent and make a profit. At present, China has made a lot of efforts in intellectual property rights, but the existing problems cannot be ignored. Poor government supervision, lack of strong law enforcement means, and so-called pilot projects in the country have led to a world of difference in intellectual property protection between developed and underdeveloped areas. This is a pity. What's worse, China indulges private enterprises to copy and infringe other countries' intellectual property rights for the simple pursuit of economic effects. Well-known is the cottage Apple mobile phone, 998 yuan. Shanzhai version of Angry Birds theme park; Even the fake city of new york. A cottage atmosphere is rampant. However, China actually agrees with this fake infringement. This is obviously a retrogression, and it is no wonder that the wto or the United States always find fault with our country. If this nation's cognitive mistakes can't be changed, China will never be as good as other countries. After China's entry into the World Trade Organization, China's intellectual property protection faces new opportunities and challenges. When there is an intellectual property dispute between China and other contracting parties, we have the right and obligation to apply the unified dispute settlement mechanism of the WTO. On the one hand, this dispute settlement mechanism helps to reduce or to some extent curb the unscrupulous unilateral retaliation used by a few developed countries in the past, so that when we may have an intellectual property dispute with developed countries, we can resolve the dispute through multilateral negotiations within the framework of the agreement; On the other hand, it also puts forward higher requirements for intellectual property protection in China. If we can't effectively protect the legitimate rights of the intellectual property rights holders, we may be terminated with preferential treatment, until we are retaliated by cross-disciplinary and cross-departmental retaliation. Strengthening the protection of intellectual property rights, especially effectively combating and punishing counterfeiting and piracy, has become an obligation that China must fulfill after its entry into WTO. Intellectual property, as an intangible property right, is the right that intellectual workers enjoy according to law. In today's international economy and trade, the fields involved in intellectual property protection are gradually broadened and the weight is gradually increased. In the future international trade competition, intellectual property rights will be the focus of competition. To sum up, it is reasonable and necessary to establish an effective international protection mechanism for intellectual property rights.
I sacrificed a lot of points, hoping to adopt the answer. )