Take "things" as that object category
Materialized property structure The system of property and real right in Roman law is a materialized property structure. It goes without saying that a physical thing exists objectively; Even if there is no physical object, there is a strong "similarity." Intangibles are people's subjective fictions, but in the materialized real right system of Roman law, this abstract entity also adopts the explanation and explanation of real entities: First, intangible objects are real rights with real objects as their objects. Such as superficies. Intangibles such as usufructuary rights are all property rights with land, houses, livestock and even slaves as objects. According to records, the first intangible thing in Roman law is "praedialservitudes", that is, an easement of land, including the right of way, the right of animal husbandry and the right of water intake, which is directly related to the tangible thing of land. Second, immaterial objects are abstract objects closely related to material objects. In the history of Roman law, the concept of "res" began with the abstraction of tangible things, and the term "resincorporales" was also based on the classification with tangible things. Justinian put forward a powerful suggestion, that is, there is a "counterpart" of tangible objects. Another connection is that intangible things, like tangible things, can be evaluated by money, that is, both are property interests.
Materialized attribute structure
In Roman law, the object of property right is mainly embodied in material wealth. Material form is the only form of tangible things, so tangible is tangible. During the Roman law period, "the Romans didn't know such things as gas and electricity, at least they didn't know that they could be used as economic things, so they could become the objects of rights." Understanding tangible things as the objective reality of entities is obviously the limitation of productivity and human cognitive ability in ancient Rome. In addition, intangible things, as "intangible wealth", are only property rights in the final analysis. As an institutional product of social tools to allocate resources, intangible things are obviously different from knowledge products created by intellectual labor in modern society. From the perspective of social wealth, the value of institutional products is the distribution of wealth, while the value of knowledge directly constitutes wealth. Therefore, Roman law only constructs a material property right system. Although ancient Rome did not have a property right system to protect spiritual products, the principles and rules of private law it left behind provided important ideological materials for us to interpret the legalization of intellectual property rights.
Property right in Roman law
The theory of dematerialization and the property of intellectual property "Roman law obviously rooted its property law in the field of metaphysics" provide some key conceptual tools for the dematerialization of property. Intangible property or intangible property theory expands the vast space of property form for later generations, that is, it extends the scope of property to the field of knowledge other than tangible property. Of course, owning land and factories means owning wealth, and mastering knowledge and technology also means owning wealth, and these two kinds of wealth are closely related. According to Australian scholar PeterDrahos, invisibility is the way to gain control over tangible objects. A patent (intangible) can be associated with countless patented products (tangible). The law recognizes the intangibility of patents and provides an effective way for the obligee to control many tangible patented products. In this way, the inventor's intangible assets can be transformed into tangible assets. It should be noted that the division of property into tangible (body) and intangible (body) is not the difference in the nature of various property rights, but the difference in the nature of objects pointed by some property rights. In short, the ownership of the house itself is not tangible, but the problem is that the house is tangible. As copyright, it does not cause tangible and intangible problems. The key is that the work is an intelligent product and intangible. It is in this sense that we say that intellectual property rights are intangible rights and intangible property rights, which are different from tangible property ownership.
Invisibility Theory and Intellectual Property Attribute
The preemption theory and the emergence of intellectual property rights "preemption" in Roman law refers to the act of taking possession of ownerless things that can be used as property with all its meanings, so as to obtain the ownership of the things. Preemption is a way to obtain ownership in civil law, which belongs to the category of original acquisition of ownership. RussVersteeg, an American scholar, believes that obtaining the ownership of ownerless things through possession is similar to obtaining the property rights of creation through possession. The preemption theory has its merits: first of all, the ownership obtained by preemption means that the owner of the ownerless thing is the first occupant of the thing. In intellectual property rights, the creator is the possessor and first controller of his intellectual achievements, so he should be the owner of intellectual achievements, that is, the owner of intellectual property rights; Second, preemption is not based on the intention of preemption, but because the law gives the preemption fact the effect of obtaining ownership. Therefore, preemption is not a legal act, but a factual act. As the origin of intellectual property rights, creative behavior and preemption have something in common, and they are all factual behaviors that do not take the expression of will as an element. Of course, this analysis is also flawed. The problem is that ownerless property, as the preemptive right, is actually something that exists in nature; The creation of intellectual property through "preemption" is the spiritual product of intellectual workers, not the real ownerless thing.
Preemption theory and the emergence of intellectual property rights
The theory of public property and the public domain of intellectual property rights clearly define several types of property for public use. All public property is intangible, which means that it cannot be the object of personal property ownership. Specifically, there are the following three categories: first, there are * * * things (rescommunes), that is, things for human beings to enjoy together, such as air, sunshine, ocean, etc.; Second, public property (iespublicae), that is, things shared by all citizens of Rome, such as rivers, roads, pastures, etc. The third is public property, that is, the property of municipal institutions, such as theaters and Colosseum. Gai Youshi believes that the above-mentioned things cannot be regarded as anyone's property, but they are shared by all members of a certain society. The theory of public property in Roman law is considered as the ideological basis for the establishment of "public domain" of intellectual property. 1709, the British "Anna Act" established "thepublicdomainforliterature and Art" for the first time. The Constitution of the United States 1787 puts forward the "3p" principles of intellectual property rights, namely "promoting learning knowledge", "maintaining public order" and "protecting authors". Due to the appearance of public domain, knowledge, technology and information are divided into two parts: proprietary knowledge products and public knowledge products. The latter includes intellectual products that are not protected by intellectual property rights and are available to the public for free, as well as intellectual products that enter the public domain because of the expiration of intellectual property rights protection.
Public property theory and the public sphere of intellectual property rights
There are many ways of ownership transfer in Roman law, such as ownership transfer in civil law, compulsory sale, abandonment of litigation, etc. The transfer of ownership in civil law is mainly delivery. Delivery is the most common way of buying and selling private property, but it is limited to tangible things. Whether it is the simple delivery of movable property, or the simple delivery of real estate, long-term delivery, in-hand delivery and translocation delivery, it is the delivery of tangible things. The sale of intangible goods can't be delivered by the subject matter, so the Romans created "cessioinjure", that is, obtaining ownership by confirming ownership through simulated litigation, also known as "court assignment", which is mainly applicable to the transfer of intangible goods (such as inheritance rights and easements). As a way to obtain ownership, the remarkable feature of "quasi-litigation waiver" lies in its openness and procedure, that is, the transfer of ownership is confirmed through simulated litigation, so that the transfer of intangible objects can obtain a formal public procedure, and the openness of this procedure makes the transfer of property more effective. American scholars believe that this concept is the same as the principle of intellectual property transfer in modern law, that is, the transfer of intellectual property must be carried out in written form and other legal forms, and should be registered or audited by the competent authorities. It can be said that Roman law regards openness and proceduralization as special provisions of intangible property transfer, which has reference significance for intellectual property trade in later generations.
Trading theory and intellectual property transfer
The theory of intangible infringement and the protection of intellectual property rights Roman law stipulates that the four forms of private crime, namely theft, robbery, damage and insult, are all violations of property and personal injury. Among them, the infringement of property initially only refers to the infringement of tangible property, that is, tangible things. With the development of Roman law, the rule of infringing tangible property is gradually applied to intangible damage. According to the research of American scholars, the Roman jurist Thomas explained the theft of "Fult Wengler" in this way: "Theft is a fraudulent sexual assault on things, including the things themselves or their right to use or ownership". During the Roman period, the concept of "stealing" was extended to "all acts aimed at depriving others of their property". Invisible infringement is not characterized by illegal possession of the subject matter, but by illegal "right possession" When the obligee suffers intangible infringement, in addition to requesting the remedy of writ of possession (mainly injunction), he can also file a fine lawsuit, a damage lawsuit and a mixed lawsuit. The characteristics description and relief measures of this intangible infringement undoubtedly provide a useful theoretical basis for the establishment of intellectual property protection system.
Invisible Infringement Theory and Intellectual Property Protection
The greatest wealth left by ancient Roman law to future generations is the Roman ideas and principles of private law. Its materialized property structure lacks the right form and institutional space containing intangible wealth, which has inevitable historical limitations. However, the "intangible property" created by the Romans and its related theories provided key conceptual tools and ideological materials for the modern revolution of intangible property and made necessary theoretical preparations.