According to Article 2 (8) of the World Intellectual Property Organization Convention, intellectual property rights include the following rights:
1. Rights related to literary, artistic and scientific works, namely copyright or copyright;
2. Rights related to performing activities, recording and broadcasting of performing artists, that is, neighboring rights;
3. Rights related to inventions in all fields of human creative activities, that is, patent rights;
4. Rights related to scientific discovery;
5. Rights related to industrial product design;
6. Rights related to commodity trademarks, service trademarks, trade names and other business marks;
7. Rights related to preventing unfair competition;
8. All other rights arising from intellectual creativity in the fields of industry, science, literature and art. ..
It should be pointed out that article 16 of the convention stipulates that participation in this convention shall not make any reservations to this convention. In other words, to join the Convention, you must agree to and abide by all the provisions of the Convention. At present, more than 160 countries in the world have joined the convention, and China also joined the convention on 1980. Therefore, it can be said that most countries in the world agree with the scope of intellectual property rights defined in the Convention. In sharp contrast, a strange phenomenon is that although most countries in the world agree with the scope of intellectual property rights defined in the above-mentioned conventions, few countries really take the "intellectual property rights" defined by the World Intellectual Property Organization as the scope of intellectual property protection in domestic legislation. A typical example is that the "right of discovery" of the World Intellectual Property Organization belongs to intellectual property, and only China and a few countries recognize it as "intellectual property" through legislation. Looking at the third section of the General Principles of Civil Law, we can see that although the General Principles of Civil Law confirms that the right of discovery belongs to intellectual property, it does not give the discoverer exclusive rights. It can be seen that the right of discovery is very different from intellectual property rights such as patent right, trademark right and copyright. In addition, although most countries in the world have joined the Convention and recognized the scope of intellectual property rights defined by the Convention, scholars in various countries still have great academic disputes about this scope.
The scope of intellectual property rights referred to in the Agreement on Trade-related Aspects of Intellectual Property Rights of the World Trade Organization (WTO) document includes:
1. Copyright and neighboring rights;
2. Trademark right;
3. The right to geographical indications;
4. Industrial product design right;
5. Patent right;
6. Layout design of integrated circuits;
7. Exclusive right of undisclosed information.
Compared with the scope of intellectual property defined by the World Intellectual Property Organization (WIPO), on the one hand, there is no scientific discovery right in the scope of intellectual property defined by the TRIPS Agreement. This is mainly because this kind of intellectual property has nothing to do with trade. On the other hand, the right of layout design of integrated circuits has been increased to meet the needs of international trade, especially to meet the actual needs of some economic powers to protect their own interests in foreign trade. On the other hand, it emphasizes "the exclusive right of undisclosed information". This kind of information mainly refers to "trade secrets", especially proprietary technology. Most countries protect trade secrets by bringing them into the track of anti-unfair competition law, and so does China. At this point, the TRIPS Agreement is consistent with the Convention of the World Intellectual Property Organization. However, whether trade secrets belong to intellectual property rights has been controversial before, and the TRIPS agreement gives a positive answer. China joined the World Trade Organization on 200 1, so China recognizes the definition of the scope of intellectual property rights by this international organization. In practice, what really plays a decisive role in intellectual property protection is the level of legislation and law enforcement in various countries. At present, the recognized scope of intellectual property rights in China is patent right, trademark right, copyright and prohibition of unfair competition. After China's entry into WTO, more and more scholars advocate that "undisclosed information" stipulated in TRIPS should also be included in the adjustment scope of intellectual property rights, but this view has not yet reached a consensus, but this trend will become more and more obvious.
The scope of intellectual property rights defined by the above two international conventions is the common practice of intellectual property legal system in the world today. "Up to now, most countries' legal monographs, laws and even international treaties have defined the concept of intellectual property rights or defined intellectual property rights from the perspective of defining the scope" [1] In addition to some international organizations and international treaties, some works have also listed the scope of intellectual property rights. For example, the intellectual property textbook compiled by Professor W.R.Cornish of Cambridge University in the United Kingdom refers to "protecting the patent right of technical inventions and designs", "protecting the copyright of literary and artistic creation" and "protecting the trademark right of commercial marks" as intellectual property rights [2].
Broad definition of intellectual property rights
At present, there is no complete agreement on the definition of "generalization" of intellectual property rights. Among them, the representative views are:
The first is to define "intellectual property" as "intellectual property refers to the rights that people can enjoy according to law for their intellectual achievements." [3] Here, the object of Intellectual Property is defined as "intellectual achievement" in a more general way, which is closest to the original meaning of the English word intellectual property. Similarly, intellectual property "refers to the rights that intellectual workers and owners of intellectual achievements enjoy according to law in intellectual creation activities." [4]
The second is that "intellectual property is a general term for rights based on creative intellectual achievements and industrial and commercial marks." [5] This definition concretizes the object of intellectual property into two categories: creative intellectual achievements and industrial and commercial marks; It is believed that all rights in the name of intellectual property rights are not all based on intellectual creation. 1992 international agreement for the protection of industrial property rights (AIPPI) Tokyo conference divided intellectual property rights into "the right of creative achievements" and "the right of identification and marking", which shows that intellectual property rights are not all the rights enjoyed by "intellectual achievements". Professor Wu further interprets the definition of intellectual property as "intellectual property is people's right to mark and reputation in their own intellectual activities." It is believed that intellectual property rights are intangible property rights arising from the spiritual field, that is, rights based on intellectual achievements, business marks or knowledge information; Intellectual property is not equal to the right to intellectual and creative achievements. Not all rights in the name of intellectual property rights come from the field of knowledge, nor are they all based on intellectual achievements. From the source of rights, it mainly occurs in intellectual creation activities and industrial and commercial activities. From the object of rights, they are composed of creative achievements, business marks, reputation and other knowledge information. Intellectual property is a legal right, and its emergence is generally recognized by law. [6]
The third is that "intellectual property rights are the rights of civil subjects to control their information related to intellectual activities, enjoy benefits and exclude interference from others in accordance with the provisions of the law". [7] This definition emphasizes that intellectual property is the attribute of "dominant position" of law, and defines the object of intellectual property as "information related to intellectual activities".
The above three broad definitions of intellectual property have their own characteristics, and the core difference lies in the difference in understanding the object or scope of intellectual property. The first definition defines the object of intellectual property as "intellectual achievements", which is consistent with the original intention of intellectual property; All kinds of protection objects of intellectual property rights are unified into the category of intellectual achievements, which avoids the possibility of loopholes in enumeration and expression. The second definition clearly lists the object of intellectual property as "creative intellectual achievements and industrial and commercial marks" or "achievements created by intellectual activities and marks and reputations in business management activities", so that people can have a clear understanding of the scope of intellectual property protection through this definition. The third definition calls all the objects of intellectual property protection "information related to intellectual activities", which is similar to the first definition, except that intellectual property rights protect "information" related to intellectual activities, not intellectual achievements.
We believe that no matter how the definition of intellectual property is expressed, at least the following meanings should be made clear: First, it should be made clear whether the subject of intellectual property is a civil subject or a private subject. The Agreement on Trade-Related Aspects of Intellectual Property Rights of the World Trade Organization defines intellectual property rights as "private rights", and the subject of intellectual property rights should also be expressed as civil subject or private subject. The third definition above emphasizes that intellectual property rights are the rights enjoyed by the "civil subject" to the object according to the law, which is more appropriate than other statements. Secondly, from the perspective of clear concept, the object scope of intellectual property rights should be defined and distinguished in the definition of intellectual property rights. Simply describing the object of intellectual property as "intellectual achievements" or "information related to intellectual activities" is a bit general. 1992 international agreement for the protection of industrial property rights (AIPPI) Tokyo conference divided intellectual property rights into "the right of creative achievements" and "the right of identification and marking", which indicated that intellectual property rights mainly came from knowledge creation activities and industrial and commercial activities, and the object of intellectual property rights became * * * knowledge in the international scope. Therefore, it is more appropriate for Professor Wu to describe the object of intellectual property as "the mark and reputation of people in their own intellectual activities and management activities". Third, intellectual property is a legal right and a kind of domination. Emphasizing that intellectual property is a legal right, on the one hand, it is clear that the types of intellectual property are legal, on the other hand, it aims to highlight that trademark rights and patent rights in intellectual property must be applied for examination and approval according to law, which is often unique to intellectual property and different from other civil rights. Emphasizing that intellectual property is a dominant position is intended to clarify the consistency between intellectual property and property rights such as property rights and personal rights, as well as the difference between intellectual property and creditor's rights. In a word, intellectual property rights are the rights of civil subjects to control the achievements created by their intellectual activities and the marks and reputations in their management activities according to law.