(1) The object of intellectual property is the intellectual achievement of human beings, and some people call it spiritual (intelligent) output. This kind of output (intellectual achievement) also belongs to an intangible property or intangible property, but it is different from the intangible property that belongs to physical products (such as electricity) and the intangible property that belongs to rights (such as mortgage and trademark rights). It is the direct product of human intellectual activities (brain activities). This intellectual achievement is not only thought, but also the expression of thought. But it is different from the carrier of thought.
(2) The subject of right makes exclusive use of intellectual achievements, which is similar to the ownership in property right, so it was classified as property 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 right of relatives (whose interests are mainly non-economic) and property rights (whose interests are mainly economic).
intellectual property rights include: industrial property rights and copyright (called copyright in China).
■ Industrial property rights composed of invention patents, trademarks and industrial designs. Industrial property rights include patents, trademarks, service marks, names of manufacturers, names of countries of origin, and prevention of unfair competition. The following only points out some main types of industrial property rights:
△ Trademark right refers to the exclusive right granted by the trademark authority to the trademark owner to protect his registered trademark by national laws. A trademark is a commercial symbol used to distinguish goods and services from different sources, which 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 procedures and implement the principle of prior application. Trademark is a kind of 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 lies in promoting industrial development.
△ Patent right and patent protection refers to an invention-creation that, after filing a patent application with the State Patent Office and passing the examination according to law, is granted the exclusive right to the invention-creation within a specified time. After an invention-creation is granted a patent right, the patentee has the exclusive right to the invention-creation. No unit or individual may exploit its patent without the permission of the patentee, that is, it may not manufacture, use, promise to sell, sell or import its 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 a closely related person may bring a suit in a people's court or request the administrative department for patent affairs to handle it. Patent protection adopts the protection mode of "two ways, parallel operation and judicial guarantee" of judicial and administrative law enforcement. Administrative protection in this region takes the form of patrolling law enforcement and joint law enforcement, concentrating on cracking down on group infringement, repeated infringement and other phenomena that seriously disturb the patent legal environment.
△ trade name right. That is, the name right of a manufacturer is a right to use its registered trade name (manufacturer name, enterprise name) without interference from others. The trademark right of an enterprise cannot be equated with the personal name right (a kind of personality right).
In addition, the names of countries of origin, know-how and anti-unfair competition are also stipulated in the Paris Convention, but the names of countries of origin are not intellectual achievements, 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.
■ Works in natural science, social science, literature, music, drama, painting, sculpture, photography and cinematography constitute copyrights. Copyright is the right of a certain unit or individual to print, publish and sell a certain work according to the law. Anyone who wants to copy, translate, adapt or perform needs the permission of the copyright owner, otherwise it is an infringement of 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, scientific and technological works, which is a civil right enjoyed by his works according to law.
△ copyright. In our country, when copyright is used in a broad sense, it includes copyright (in a narrow sense), neighboring rights of works, computer software copyright, etc., which belongs to the scope stipulated by the copyright law. This is the exclusive right of the copyright owner to use the crops (works) exclusively. 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 1 of the Copyright Law). Copyright is divided into personal rights of works and property rights of works. Copyright, patent right and trademark right sometimes overlap, which is a feature of intellectual property rights.
[ Edit this paragraph] Features of intellectual property
Features of intellectual property
(1) Intellectual property is an intangible property.
(2) Intellectual property rights are exclusive.
(3) Intellectual property has the characteristics of timeliness.
(4) Intellectual property has regional characteristics.
(5) The acquisition of intellectual property rights requires legal procedures.
■ exclusivity, that is, exclusivity or monopoly; No one other than the obligee may enjoy or use this right unless the obligee agrees or the law stipulates. This shows that the exclusive rights monopolized or monopolized by the obligee are 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 a tangible or intangible thing 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 intellectual property can not be said to be a combination of the two types of rights. For example, it is wrong to say that copyright is the combination of personal rights (or personality rights or spiritual rights) and property rights of works. Intellectual property is a kind of right with complex content (multiple powers) and economic and non-economic nature. Therefore, intellectual property rights should stand side by side with personality rights and property rights and form a class of their own.
■ regionality, that is, it is only valid within the confirmed and protected areas; That is, unless an international convention or bilateral reciprocal agreement is signed, a right protected by a country's laws only takes legal effect within the country. Therefore, intellectual property rights are both regional and international under certain conditions.
■ timeliness, that is, protection is only within the prescribed time limit. That is to say, the protection of various rights by law has a certain period of validity, and the length of the protection period may be the same or not. Only when participating in international agreements or making international applications can a certain right be protected uniformly.
■ Intellectual property is an absolute right, which is similar to the ownership in real right in some respects, for example, the right to directly control the object, which can be used, benefited, disposed of and dominated by other kinds (but there is no possession problem); Exclusive; Transferability (including inheritance), etc.
■ Intellectual property rights are restricted by law in several aspects. Although intellectual property is a private right, although the law also recognizes its exclusive exclusivity, because people's intellectual achievements are highly public and closely related to the development of social culture and industry, 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 a patent right requires application, examination and approval, and there are various conditions for the invention, utility model and design to be granted with a patent right (Articles 22 and 23 of the Patent Law), but no patent right is granted for some matters (Article 25 of the Patent Law). Although there are no restrictions on 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 duration 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 licensing or compulsory licensing system. For copyright, the law also stipulates a fair use system.
[ Edit this paragraph] Historical development of intellectual property rights
In the past, especially in civil law countries, intellectual property rights were called intangible property rights and included in property rights (alongside property rights and creditor's rights). Since the word "intellectual property" became popular in the world, especially after the establishment of the World Intellectual Property Organization, the word "intangible property right" has been completely replaced by "intellectual property right". As for the division of intellectual property from property rights, it is because intellectual property has its own characteristics, which is very different from property rights.
knowing what rights intellectual property rights include, that is to say, how to classify intellectual property rights is not only a theoretical issue, but also involves the provisions of current national laws and international conventions. Item 8 of Article 2 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 or audio recordings or broadcasts by performing artists; The invention of human beings in various fields through hard work; Scientific discovery; Industrial product design; Trademarks, service marks and trade name and logo; And all other intellectual activities in the fields of industry, science, literature or art.
according to this regulation, 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 to protect the identification marks in industrial activities, including trademark rights and trade name rights. The former category can be divided into copyright which mainly protects and promotes spiritual culture and patent which mainly protects and promotes material culture.
But in fact, before the above convention, the Paris Convention for the Protection of Industrial Property in 1883 had already stipulated "industrial property rights", saying that the objects of industrial property rights protection include patents, utility models, industrial designs, trademarks, service marks, manufacturers' names, marks of origin or names of origin and the prevention of unfair competition. Therefore, intellectual property rights are generally divided into two categories: copyright and industrial property rights. Under industrial property rights, they are divided into patent rights, trademark rights and trade name rights. This division also makes sense. Industrial property rights involve "industry", but copyright does not.
Now, due to the progress of science and technology, the products of human intelligence are increasingly 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, etc., and it is still increasing. Therefore, intellectual property is now a general term for a kind of rights that is still expanding.
there are many problems to be studied about intellectual property rights.
In 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 joined forces to form the Joint Bureau for International Intellectual Property Protection. The World Intellectual Property Organization was established in Stockholm in 1967 and became one of the specialized agencies of the United Nations in 1974. Its purpose is to cooperate with other international organizations through international cooperation, so as to promote the protection of intellectual property rights worldwide and ensure administrative cooperation among intellectual property alliances. China joined the World Intellectual Property Organization on March 3, 198, and became a full member of the organization on June 3 of the same year.
The General Principles of the People's Republic of China and the Civil Law stipulates six types of intellectual property rights, namely copyright, patent right, trademark right, right of discovery, right of invention and other rights of scientific and technological achievements, and stipulates the civil law protection system of intellectual property rights. In the Criminal Law of the People's Republic of China, the relevant contents of intellectual property crimes are also determined in section 7 with eight articles, thus determining the criminal law protection system of intellectual property rights in China. In addition, separate laws and administrative regulations such as the Patent Law of the People's Republic of China, the Trademark Law, the Copyright Law, and the Regulations on Invention Awards also stipulate relevant intellectual property rights.
On June 16th, 1994, the white paper "Intellectual Property Protection in China" was published.
The white paper is divided into three parts: 1. China's basic position and attitude on intellectual property protection; Second, China has a high-level legal system to protect intellectual property rights; Three, China has a complete law enforcement system for the protection of intellectual property rights.
the white paper says that the China government's sincere stance of abiding by international conventions and bilateral agreements on intellectual property protection and its ability to fully undertake international obligations have been widely praised and supported by international public opinion. At the conclusion of the white paper, it points out that there are always some people in the world who turn a blind eye to the development and changes in China, disregard the basic facts and make wild comments on the current situation of intellectual property protection in China. There is no need to argue about this argument, the fact is the best answer!
for your reference.