1, application of fault liability principle. As a new special civil right, intellectual property is open and easy to copy, which determines that it is difficult for the infringed to cite the evidence of the infringer's infringement to determine whether the infringer should be condemned subjectively. It is difficult to identify the infringement of intellectual property rights in judicial practice.
2, the application of the principle of presumption of fault. Simply applying the principle of fault liability will affect the efficiency and level of intellectual property protection. Therefore, in many intellectual property cases, fault presumption of liability can be adopted.
Second, the constitutive elements of intellectual property infringement
1, damaging the facts. Damage fact refers to the actual damage consequences, including property loss or mental pain. In this regard, China's intellectual property law has the following provisions:
(1) Article 47 of the Copyright Law stipulates that copying and compiling without the permission of the copyright owner, and Article 46 stipulates that recording without the permission of the performer is an infringement. If the infringer only copies, assembles and records, and neither uses it, nor sells it or gives it away, of course, it will not cause any damage. According to the compensatory characteristics of civil legal relationship safeguard measures, it should not bear the liability for civil damages. However, it is obvious that these acts are tort in nature.
(2) Article 1 1 of the Patent Law stipulates that the patentee has the right to manufacture and promise to sell. If the infringer only manufactures or promises to sell the patented product, and neither uses it, nor sells it or gives it away, similarly, he shall not be liable for civil damages. However, Article 57 of the Patent Law clearly defines it as an act of patent infringement.
(3) Article 49 of the Copyright Law, Article 6 1 of the Patent Law and Article 57 of the Trademark Law make it clear that immediate infringement is an infringement and should bear civil liability. We know that the essence of immediate infringement is an act that is likely to cause harm, but it does not cause harmful consequences, but it still constitutes intellectual property infringement.
As can be seen from the above, from the perspective of China's intellectual property legislation, the composition of intellectual property infringement is not based on damage facts.
2. Subjective fault.
Some scholars believe that the infringement of intellectual property rights belongs to general infringement and advocate the application of the principle of fault liability; Some scholars believe that this kind of tort has many attributes, including general tort, infringement, obstruction, embezzlement and other acts, and advocate that the principle of fault liability and the principle of no-fault liability should be applied respectively according to the different nature of the act; Some scholars advocate introducing the principle of no-fault liability.
In my opinion, compared with tort in tort law, intellectual property infringement does have many attributes, including both general fault infringement and so-called no-fault infringement. For example, according to the second paragraph of Article 63 of the Patent Law and the third paragraph of Article 56 of the Trademark Law, acts of using and selling in good faith still constitute infringement. If it can be proved that it has a legal source, it can be exempted from liability for compensation (only from liability for compensation), and at the same time, it is stipulated that "it should bear the legal responsibility to stop the infringement".
Obviously, the tort mentioned here not only does not need to take the fault of the actor as the constitutive element, but also does not need to take the fault of the actor as the constitutive element to bear the legal responsibility of stopping the tort. Therefore, to sum up all the constitutive elements of intellectual property infringement, subjective fault should not be included, otherwise the extension of intellectual property infringement will be inappropriately narrowed, such as excluding no-fault infringement from intellectual property infringement.
Third, compensation for intellectual property infringement.
1, stop the infringement.
As long as it constitutes infringement of intellectual property rights, it also constitutes civil liability to stop the infringement. Here, the elements of tort and tort liability are the same. In addition, China's Trademark Law, Copyright Law and Patent Law all make similar provisions on the upcoming infringement: when the obligee or interested party has evidence to prove that others are about to commit the infringement of their intellectual property rights, if they do not stop it in time, their legitimate rights and interests will be irretrievably damaged, and they can apply to the people's court for measures to order them to stop the relevant acts and preserve their property before prosecution.
For the obligee, this is similar to the right of nuisance prevention in the claim of real right. For the obligor, as long as his behavior is illegal, it constitutes infringement, that is, he should bear civil liability for stopping the infringement.
2. Eliminate the influence and apologize.
In the current legislation, only the copyright law stipulates these two forms of liability, but there is no clear stipulation on their constituent elements. It seems that as long as it constitutes copyright infringement, it should bear the civil liability of eliminating the influence and apologizing. In my opinion, the current legislation has at least the following omissions:
First, about eliminating the impact. In fact, not only in the field of copyright law, but also in the field of trademark law and patent law, there are also problems that have adverse effects on obligees due to infringement, such as the destruction of goodwill and misleading consumers. Article 59 of China's Patent Law stipulates: "In addition to bearing civil liability according to law, the patent administration department shall order it to make corrections and make an announcement." I understand that the "announcement" stipulated here is of course a measure of administrative punishment, but its purpose is to eliminate the influence, which is undoubtedly the civil liability that the infringer should bear. With regard to the elements of eliminating the influence, the author thinks that besides the illegality of the act, it should also include the adverse effects caused objectively, and there is a causal relationship between the infringement and the adverse effects.
Second, about apologizing. There is no doubt that this form of responsibility is based on the need to protect individual rights and interests. As we know, in intellectual property rights, besides trademark rights, copyright and patent rights all include personal rights.