In daily life, we often hear people say, "I came up with this idea, and I have copyright." Is this idea or idea copyrighted? This question involves: What does the copyright law protect? Is it the content of thought or the expression of thought?
In the field of copyright, copyright law only protects the expression of thoughts and emotions, but not the thoughts and emotions themselves. This is a basic theory generally accepted by all countries. In other words, ideas, procedures, operating methods or mathematical concepts expressed in works are not protected by copyright law.
Ideas or concepts that exist in people's minds cannot be protected by copyright law because they are not expressed in some form; Even if an idea or idea has been expressed in some form, such as words, pictures, etc., it cannot enjoy copyright, because it belongs to the category of ideological content. Of course, if this idea or idea is valuable in industry or commerce, it can be protected by patent law or anti-unfair competition law. For example, the prescription studied by A is very effective for the prevention and treatment of avian influenza, and A can apply for an invention patent. After obtaining the patent, no one else may use the prescription without Party A's consent. If Party A does not apply for a patent, it can also take the prescription as a trade secret and take confidentiality measures to prevent the prescription from leaking.
Creativity is an intangible asset. A good idea may bring great wealth to the obligee. However, there are no special laws and regulations on creative protection in China. So, what methods can protect our creativity?
I. Trademark registration
If the creativity belongs to the trademark design of goods or services, the obligee can protect its creativity by applying for trademark registration. China's Trademark Law stipulates that the right holder has the exclusive right to use a registered trademark for a trademark that has been applied for registration according to law. Without the permission of the trademark registrant, anyone uses the same or similar trademark on the same or similar goods; Or selling goods that infringe the exclusive right to use a registered trademark; Or forging or manufacturing others' registered trademark logos without authorization or selling forged or manufactured registered trademark logos without authorization; Or change its registered trademark without the consent of the trademark registrant, and put the goods with the changed trademark on the market again; All belong to tort. The trademark owner may bring a lawsuit to the people's court in accordance with the Trademark Law, or request the administrative department for industry and commerce to handle it.
Second, the patent application
If an idea is based on a technological invention and conforms to the provisions of China's patent law on patent application, the right holder can obtain protection by applying for a patent. According to the specific content of creativity, you can apply for a patent for invention, utility model or design. An invention refers to a new technical scheme proposed for a product, method or its improvement. Utility model refers to a new technical scheme suitable for practical use for the shape, structure or combination of products. Appearance design refers to a new design with aesthetic feeling and suitable for industrial application based on the shape, pattern or combination of products and the combination of color and shape and pattern.
China's patent law stipulates that after the patent right for invention and utility model is granted, 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 products for production and business purposes, or use its patented methods and use, promise to sell, sell or import products directly obtained according to the patented methods. After the design patent is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, may not manufacture, sell or import its patented products for production and business purposes.
However, it should be noted that once an idea is patented, it is well known to the public, regardless of whether the right holder finally obtains the patent authorization. In addition, patent protection has a certain period, not indefinite protection. The term of the invention patent right is 20 years, and the term of the utility model patent right and the design patent right is 10 years, both counting from the date of application.
Third, copyright protection.
Many ideas often fail to meet the standards of patent application, but if the ideas are original intellectual achievements in the fields of literature, art and science, the right holder can express the ideas in the form of works and seek protection through copyright law. China's copyright law protects a wide range of works, including (1) written works; (2) Oral works; (3) Music, drama, folk art, dance and acrobatic works; (4) Artistic and architectural works; (5) Photographic works; (6) cinematographic works and works created by similar cinematographic methods; (seven) engineering design drawings, product design drawings, maps, schematic diagrams and other graphic works and model works; (8) Computer software; (9) Other works as prescribed by laws and administrative regulations.
Fourth, as a trade secret protection.
If you have an idea, you can neither apply for trademark registration, nor apply for a patent or form a work. Then, if the idea is not known to the public, can bring economic benefits to the obligee, is practical, and has been kept secret by the obligee, then the obligee can protect it as a trade secret. The obligee shall take reasonable confidentiality measures and sign a confidentiality agreement with the unit or individual informed of the idea, requiring them not to disclose or use the business secret without authorization.
Article 10 of China's Anti-Unfair Competition Law stipulates that business operators shall not infringe on business secrets by the following means:
(1) Obtaining the business secrets of the obligee by theft, inducement, coercion or other improper means;
(2) disclosing, using or allowing others to use the business secrets of the obligee obtained by means of the preceding paragraph;
(3) disclosing, using or allowing others to use the business secrets in their possession in violation of the agreement or the requirements of the obligee to keep the business secrets.
If a third party knows or should know the illegal acts listed in the preceding paragraph and obtains, uses or discloses other people's business secrets, it shall be regarded as infringement of business secrets.
Article 43 of the Contract Law stipulates that the business secrets known by the parties in the process of concluding a contract shall not be disclosed or improperly used, regardless of whether the contract is established or not. If the disclosure or improper use of business secrets causes losses to the other party, it shall be liable for damages.
Therefore, when trade secret infringement occurs, the obligee can seek relief according to the corresponding laws.