Intellectual property is an intangible property right directly recognized by law, which has the characteristics of exclusiveness, regionality and timeliness. The contents of intellectual property rights include personal rights and property rights. Intellectual property law is the general name of legal norms regulating social relations in the process of creation, use and transfer of intellectual achievements. Intellectual property protection system has increasingly become a powerful legal measure for countries to protect the rights and interests of intellectual achievements, promote the development of science and technology and social economy, and conduct international competition. Therefore, it is of great significance to enhance the awareness of intellectual property rights and enhance the ability to protect intellectual property rights.
I. Copyright law
(A) the concept of copyright law and the object of protection
Copyright, also known as copyright, is the personal right and property right that the copyright owner enjoys according to law for his literary, artistic, scientific and technological works. Copyright law is the general name of legal norms related to the acquisition, exercise and protection of copyright and related rights and interests. It regulates the personal relationship and property relationship between authors, disseminators of works and the public due to copyright.
The object of protection of copyright law, that is, the object of copyright, is the work. Works refer to the intellectual achievements that reflect people's thoughts and feelings in a certain objective form in the fields of literature, art and science. China's copyright law protects the following forms of works: (1) literary works; (2) Oral works; (3) Music, drama, folk art and dance works; (4) Artistic and photographic works; (5) Movies, television and video works; (six) engineering design and product design drawings and their descriptions; (seven) maps, schematic diagrams and other graphic works; (8) Computer software; (9) Other works as prescribed by laws and administrative regulations. However, works whose publication and dissemination are prohibited according to law are not protected by copyright law.
(2) The subject and content of copyright
Copyright owners stipulated in the Copyright Law include authors, other natural persons, legal persons or other organizations that enjoy copyright according to the Copyright Law. Theoretically, the subject of copyright can be divided into original subject and inheritance subject. Natural person is the most important subject of copyright owner. China citizens, any foreigner whose works were first published in China, or nationals whose countries or countries of habitual residence signed bilateral agreements on intellectual property rights with China or participated in international conventions on intellectual property rights can become the subject of copyright in China. In addition, China's Copyright Law also stipulates the copyright ownership of special works.
The contents of copyright include personal rights and property rights. The personal rights of works mainly include the following four rights: first, the right to publish, that is, the right to decide whether a work is made public; The second is the right of signature, that is, the right to show the identity of the author and sign his name on the work; The third is the right to modify, that is, the right to modify or authorize others to modify the work; The fourth is to protect the integrity of the work, that is, to prohibit others from distorting or tampering with the work against the author's wishes.
The property right of a work refers to the author's right to use or license others to use his work and get paid, which is called the right to use and get paid in China's copyright law. The property right of a work includes the right to use the work by means of reproduction, performance, broadcasting, exhibition, distribution, filming, television, video or adaptation, translation, annotation and editing, and the right to allow others to use the work in the above ways and get remuneration from it.
Second, the patent law
(A) the concept of patent law and the object of protection
The word patent usually has three meanings: one is the abbreviation of patent right; Second, it refers to the protection object of patent law, that is, creation and invention; The third refers to patent documents. Generally speaking, patents and patent rights are common. Patent right refers to the exclusive right granted by the state patent authority to the inventor, designer or their subordinate units to an invention and creation within a certain period of time. Patent law is the general name of legal norms to adjust various social relations arising from the confirmation and use of patent rights.
The object protected by China's patent law is the invention and creation that can be patented according to the patent law. Inventions and creations stipulated in the patent law include inventions, utility models and designs. After these three inventions are patented according to law, they are called invention patents, utility model patents and design patents respectively. Invention refers to a new technical scheme proposed for a product, method or its improvement. Utility model refers to a new practical technical scheme for the shape, structure or combination of products. Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application, which is made on the shape, pattern, color or their combination of products.
(2) The subject and content of the patent right
The subject of patent right refers to the citizens, legal persons and other organizations that enjoy the patent right according to law, including the original obligee and the successor obligee. The subject of patent right specifically includes: (1) inventor or designer; (2) the unit of the inventor or designer; (3) legal assignee; (4) foreigners.
The content of patent right includes the rights and obligations of the patentee. The rights of the patentee include personal rights and property rights. Mainly includes: (1) exclusive enforcement right. Refers to the exclusive right of the patentee to manufacture, use and sell patented inventions and creations according to law; (2) the right of transfer. Refers to the patentee has the right to transfer the ownership of the patent by way of sale or gift; (3) permission. Refers to the patentee has the right to transfer the right to use the patent to others according to the licensing contract, allowing them to exploit the patent; (4) the right to abstain. The patentee has the right to give up his rights in writing before the expiration of the patent right; (5) the right to mark. The patentee has the right to indicate the patent mark and patent number on his patented product or its packaging.
The patentee mainly has the following obligations: (1) Pay the annual patent fee. The annual patent fee is the fee that the patentee pays to the patent office year by year during the patent protection period from the year when the patent right is granted. (2) exercising the patent right according to law. First of all, the patentee should exploit or permit others to exploit his patent. (three) the patent owner shall reward the inventor or designer of the service invention-creation.
(3) Conditions for granting the patent right
The patent law stipulates that inventions and utility models that are granted patent rights should be novel, creative and practical.
1. novelty. It means that before the filing date, no identical invention or utility model was published in domestic and foreign publications, used in China or known to the public in other ways, and no identical invention or utility model was applied by others to the patent administration department in the State Council and recorded in the patent application documents published after the filing date.
2. Creativity. Compared with the prior art before the filing date, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress.
3. practicality. Refers to the invention or utility model can be manufactured or used, and can produce positive effects.
The design to which the patent right is granted shall be different from or similar to the design that has been published in domestic and foreign publications or publicly used in China before the date of application, and shall not conflict with the legal rights previously obtained by others.
The procedures for granting patents include application, examination and approval.
Third, trademark law.
(A) the concept of trademark law and the object of protection
A trademark is a symbol of goods and services, and it is a specific symbol used to distinguish the goods or services produced and sold by oneself from others. Trademark right refers to the exclusive right of the trademark owner to his registered trademark according to law. The acquisition of trademark rights in China adopts the principle of registration. Only a trademark approved and registered by the Trademark Office can enjoy the exclusive right to use a trademark and be protected by law. Unregistered trademarks cannot enjoy the exclusive right to use trademarks. Trademark law is the sum total of legal norms regulating various social relations in the process of trademark registration, use, management and protection.
China's trademark law protects registered trademarks. The so-called registered trademark refers to a trademark approved and registered by the trademark authority according to law. The competent department of trademarks in the State Council is in charge of trademark registration and management throughout the country. Registered trademarks, including commodity trademarks, service trademarks, collective trademarks and certification trademarks, are all protected by the Trademark Law. A registered trademark must meet the following conditions: (1) It must have legal elements, namely words, graphics, etc. Or a combination thereof; (2) It must have distinctive features that are easy to identify; (3) Not to be confused with trademarks registered by others; (4) It shall not be a no-go sign.
(2) The subject and content of the trademark right
Trademark owner is the subject of trademark right, which refers to a natural person, legal person or other organization that applies for trademark registration according to law and enjoys the exclusive right to use a trademark. The rights and obligations of trademark owners are the contents of trademark rights.
The trademark owner's rights include: (1) exclusive rights, that is, the trademark owner has the exclusive right to use the trademark and has the right to prohibit others from using its registered trademark without permission; (2) the right of transfer, that is, the trademark owner has the right to transfer or sell the trademark; (3) the right of inheritance, that is, the trademark of the trademark owner can be inherited by his successor; (4) the right to use the license, that is, the trademark owner can allow the other party to use his trademark under certain conditions through the license contract while retaining the trademark ownership; (5) the right of renewal, that is, if the registered trademark needs to be used continuously after its expiration, the trademark owner may apply for trademark renewal; (6) the right to request protection.
The obligations of the trademark owner mainly include: (1) The trademark owner has the obligation to pay all trademark fees according to law; (2) The trademark owner has the obligation to ensure the quality of the registered trademark goods, and shall not shoddy, shoddy and deceive consumers; (3) The trademark owner shall use the registered trademark according to law, and shall not change the words, figures or combinations of the registered trademark by himself; (4) The name, address or other registered items of the registrant shall not be changed without authorization; (5) A registered trademark may not be transferred by itself; (6) A registered trademark shall not be discontinued for three consecutive years.
(3) the principle of obtaining trademark rights
1. The principle of combining voluntary registration with compulsory registration. Whether the vast majority of products apply for registered trademarks or not, the principle of voluntary registration is decided by the trademark users themselves, and the law does not make mandatory provisions. However, the principle of compulsory registration is adopted for trademarks of medicines and tobacco products for human use. That is, these two types of goods must use registered trademarks, otherwise, their goods may not be sold in the market.
2. The principle of combining prior application with prohibition of malicious cybersquatting. Where two or more applicants apply for registration with the same or similar trademarks on the same commodity or similar commodities, the trademark applied earlier shall be preliminarily examined and announced; Where an application is filed on the same day, the prior trademark shall be preliminarily examined and announced, and the application of others shall be rejected without announcement. However, it is prohibited to maliciously pre-register other people's trademarks and other prior rights, such as design right, copyright, enterprise name, etc.
Four. protect intellectual property rights
Protecting intellectual property rights is a systematic project. China has established a legal protection system for intellectual property rights, and achieved effective protection of intellectual property rights through legislative, judicial and administrative means. In addition, the social protection and self-protection of intellectual property rights in China are also playing an increasingly important role.
Legislative protection
Legislative protection refers to the protection that the state confirms that civil subjects enjoy intellectual property rights through legislation and endows them with legal binding force. Without intellectual property legislation, there would be no legal form of intellectual property. Therefore, the establishment and continuous improvement of intellectual property legislation is the primary task of intellectual property protection. China's national legislation on intellectual property rights mainly includes: the relevant provisions of the Constitution and basic laws; Specialized laws on intellectual property, such as Copyright Law of People's Republic of China (PRC), Patent Law of People's Republic of China (PRC), Trademark Law of People's Republic of China (PRC), etc. ; There are also the People's Republic of China (PRC) Anti-Unfair Competition Law, the People's Republic of China (PRC) Science and Technology Progress Law, and the relevant provisions of the World Intellectual Property Organization Convention, universal copyright convention and other international treaties that China has concluded or joined.
(2) judicial protection
Judicial protection of intellectual property rights refers to the criminal and civil litigation initiated by the obligee who enjoys intellectual property rights or the state procuratorial organ, and the criminal and civil legal responsibilities of the infringer are investigated, and the judicial review of administrative law enforcement is carried out through administrative litigation, so that the legitimate rights and interests of all parties can be effectively protected. After nearly 30 years' efforts, China has initially established a relatively complete judicial protection system for intellectual property rights. People's courts at all levels, while trying intellectual property disputes according to law, severely punish crimes of infringing intellectual property rights according to law and safeguard the legitimate rights and interests of relevant rights holders. At the same time, the intellectual property litigation system has been continuously improved. From June 5438 to February 2004, the relevant judicial interpretations in the Supreme People's Court and the Supreme People's Procuratorate further clarified and appropriately lowered the conviction and sentencing standards of intellectual property crimes, and unified the applicable rules of the technology contract law.
(3) Administrative protection
Administrative protection refers to the administrative punishment imposed by the state administrative organs on intellectual property infringement and other related administrative acts. In 2004, the State Council established the National Intellectual Property Protection Working Group, which is responsible for leading and coordinating the national intellectual property protection work and supervising major cases. Under the unified deployment of the working group, an inter-departmental IPR enforcement cooperation mechanism was established, which strengthened the convergence and coordination of work. The working group also made specific arrangements for the nationwide publicity and training of intellectual property rights, and effectively carried out related work.
(4) Social protection
Social protection refers to the protection of intellectual property rights by social groups and other social forces. Organizations such as intellectual property industry associations can assist the government to carry out intellectual property protection work, handle related affairs on their own, and play a role in serving the society. Media supervision by public opinion also plays a special role in intellectual property protection.
(5) Self-protection
Intellectual property owners have a direct interest in intellectual property protection, and their own intellectual property rights and their legal awareness are of great significance to intellectual property protection. However, the awareness of self-protection of intellectual property rights holders in China is not strong, and their self-protection ability needs to be further improved.