Civil Code's Guidance and Support to Intellectual Property Law
Among the special provisions on intellectual property rights in the Civil Code, the general provisions on intellectual property rights in Article 123 are aimed at "individual laws guiding intellectual property rights", while the punitive damages in Article 1 185 are an attitude to strengthen intellectual property protection. As far as these provisions are concerned, their guiding role is limited, and more is the declaration significance of confirming the civil subject status of intellectual property rights. As far as the operational significance of special terms is concerned, there is no need to exaggerate its value. For example, although trade secrets are clearly defined as civil rights, they have not changed themselves, and have not led to a qualitative change in trade secrets and their protection systems. Even if China legislates on the protection of trade secrets in the future, it is not because the civil code stipulates trade secrets as rights, but depends on the importance of special legislation. The European Union and the United States have never recognized trade secrets as rights, nor have they been prevented from enacting special trade secret protection laws. Moreover, under the background that the widespread adoption of punitive damages has become an established decision of intellectual property protection in China, even if the civil code does not make general provisions on punitive damages, it will not affect the provisions of the separate law on intellectual property rights, and the civil code only has a reinforcing role. Even so, the system of civil code can still provide basic institutional support for intellectual property protection, that is, the basic relationship between the two is still reflected in the support of the basic system.
First of all, the civil code can provide theoretical background and institutional basis for intellectual property law. The civil application of intellectual property law is based on civil law. Although intellectual property has its own unique concept and system, and it is highly self-consistent in legal adjustment and specific application, it cannot be completely self-sufficient and should still be guided by the basic spirit and principles of civil law. In particular, "basic principles are the basic principles that civil subjects should follow in civil activities and judicial organs should follow in civil judicial activities", and the basic principles of civil law are applicable to intellectual property law.
Secondly, civil law has supplementary application value. Civil law can be invoked to supplement the application of intellectual property law without violating the legislative policy of intellectual property. For example, the provisions of the civil law can be applied to the way of civil liability that is not stipulated in the intellectual property law. If the abuse of intellectual property rights constitutes infringement, it is usually no longer an infringement of intellectual property rights, and the general provisions on tort liability can be applied.
(2) The applicable boundary between civil code and intellectual property law.
Intellectual property law usually consists of civil norms and administrative norms, but intellectual property is a private right, intellectual property law is mainly a special civil law, and civil law is still the basic law. Intellectual property law has the priority of special law, but deep concepts and theories such as right protection and infringement judgment are still rooted in civil law. Intellectual property rights are not only intangible, time-limited and regional, but also have distinct public policies. In order to maintain a specific public policy, there is a necessary and important "firewall" in the application relationship between the Civil Code and the intellectual property law, so as to prevent the arbitrary application of the Civil Code from destroying the balance of the intellectual property system.
Civil rights, such as personal rights, real rights and creditor's rights, usually have clear rights boundaries and have a strong right-based color, that is, except for exceptions and special rights restrictions, civil rights are based on rights and rights protection, and the legal balance is obviously tilted towards rights. For example, real right is an exclusive right of domination, and the restriction on real right is only an exception stipulated by law. Different from the legal purity of other civil rights, intellectual property is not so pure in the right attribute, and it has the distinct intellectual property attribute of public policy. In particular, intellectual property rights are used as policy tools to achieve utilitarian goals such as encouraging innovation. Of course, there are many concrete manifestations and ways to realize the public policy of intellectual property rights.
First of all, intellectual property is the product of the balance between rights and public domain. The other side of intellectual property rights is public domain, public space or public interest (collectively referred to as public domain in this article). Intellectual property is the product and result of the demarcation between rights and public domain, and in the relationship between intellectual property and public domain, intellectual property is the exception and public domain is the principle. Granting intellectual property rights under certain conditions or within a certain period of time is to achieve policy objectives such as encouraging innovation. In general, the type of right is legal, and the type of infringement tends to be legal. The purpose is to demarcate the boundary between intellectual property rights and the public domain and leave enough space for the freedom of innovation and competition. Therefore, the creation of intellectual property rights fully embodies public policy. For example, one of the drafting guidelines of Interpretation on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes (II) (hereinafter referred to as Judicial Interpretation on Patents II) is to "adhere to the principle of balance of interests", that is, "clarify the legal boundary between patent rights and other civil rights, which not only protects the legitimate rights and interests of the obligee, encourages invention and creation, but also avoids the improper expansion of patent rights and prevents the space for innovation from being compressed and harming the interests of the public and others.
Secondly, the specific definition of various intellectual property rights usually has corresponding flexible space. Trademark approximation, product approximation, equivalent infringement, substantive approximation of works and other infringement judgment standards have corresponding flexible space in specific definition or interpretation, and also have strong policy choices and discretion. In the specific application, it is also necessary to follow the policy objectives of encouraging innovation.
For example, although Article 64 of the Patent Law stipulates the scope of the patent right, such as "the scope of protection of the patent right for invention or utility model is subject to the content of the claim, and the content of the claim can be illustrated by the description and drawings", the patent right is presented in the form of a patent document after all, and there are inevitably limitations in literal expression in specific patents. The specific situation of each patent varies widely, so it is necessary to make policy considerations in actual protection. For example, when determining the rules of Judicial Interpretation of Patents II, the following factors were considered: "The written expression itself has certain limitations, and it is difficult to comprehensively and accurately summarize the patent technical scheme in the patent claim. Moreover, the improvement of patent literature writing level needs a process, which cannot be achieved overnight. Therefore, while emphasizing the basic orientation of the disclosure of claims, the interpretation of claims needs to maintain a certain degree of flexibility and avoid' literal theory', so as to protect patents that have truly made technical contributions through comparison with GAI. " In practice, the corresponding judicial policies are summarized.
It is precisely because of the policy objectives that the provisions of intellectual property law are usually self-sufficient and self-consistent, and in principle there is no need to expand or restrict them through the civil code. In other words, unless there is an extremely special demand, the intellectual property law itself should be enough to solve the boundary problem of intellectual property rights, and there is no need to invoke the basic civil law for supplementary adjustment. Even if it needs to be supplemented by invoking the Basic Law of the Civil Law, it is limited to not destroying the policy balance between intellectual property rights and the public domain.
(C) the spillover value of the principles of civil law
The basic principles of civil law are universal in the field of civil law, which can not only strengthen or adjust the application of civil law rules (such as the explanatory function of principles to rules and the function of filling loopholes, etc.). ), and there is spillover effect. For example, administrative cases such as trademarks can invoke civil law principles such as good faith. Of course, this is closely related to the administrative procedures related to the authorization and confirmation of intellectual property rights directly stipulated in the Intellectual Property Law.