Only from the point of view that intellectual property rights are as exclusive or monopolistic as other absolute rights (such as property rights), it is not wrong that intellectual property rights are monopoly rights, although this monopoly is not the characteristic of intellectual property rights. However, what role and significance does this monopoly have in law? It is nothing more than the tautology of "right to the world" and "absolute right", and it doesn't explain anything else at all.
In the civil codes of modern countries, I am afraid that the civil right of "monopoly right" cannot be found. Monopoly power is essentially a legal privilege. If the law gives a civil subject a "monopoly right", it essentially violates the principle of equality in modern civil law. Therefore, monopoly rights do not have the nature of civil rights (private rights), but may have the characteristics of public rights, such as tobacco monopoly rights, railway franchise rights and telecom franchise rights. Of course, such privileges will only become less and less under the conditions of modern market economy. Intellectual property is obviously different from the above-mentioned "monopoly right" [1], which condenses the labor created by inventors, authors and other intellectual achievements, and is undoubtedly a civil right.
In this case, if someone still insists that intellectual property is a monopoly right, it must have another purpose: intentionally or unintentionally equating intellectual property with monopoly, which makes intellectual property more or less the original sin of monopoly and privilege. From the historical point of view that intellectual property rights were born out of feudal monopoly privileges, this view is somewhat understandable. However, if we persist in the historical precipitation, we can't see the development track of things clearly and can't understand the evolution of intellectual property from monopoly right (privilege) to property right (private right), which is obviously pedantic and chaotic, and its conclusion is unreliable.
1623 promulgated the British monopoly law, which really regarded the patent right as a monopoly right and reserved it as an exception to abolish monopoly privileges. However, through the appearance of history, we can see that in the process of western society's transition to capitalist system, individual rights have been gradually valued and protected. In fact, the monopoly law abolished a large number of monopoly privileges and made the patent right evolve into private property right. "It stipulated the subject and object of invention patent right, the subject of invention who can obtain patent, the conditions for obtaining patent, the validity period of patent, etc., and drew a basic scope for the patent legislation of later countries, and many of its principles and definitions are still in use today" [2]. This is the first step in the transition of intellectual property from monopoly right to property right. And "in the new people's law compiled after the French bourgeois revolution, intellectual property rights have been determined in a new position, because human intellectual activities have created ideological products, and like other labor products, they can also obtain corresponding property rights" [3], and the civil law principle of "inviolability of private property" in the period of free capitalism also applies to intellectual property rights. Article 1 of the US Constitution clearly stipulates: "Congress has the right to promote the development of science and practical art by ensuring that authors and inventors have exclusive rights to their corresponding works and inventions for a limited time." [4] It is worth pointing out that the American Constitution of 1787 refers to intellectual property rights such as patent rights instead of monopoly, which means that people begin to realize that patent rights are different from monopoly or monopoly rights in the economic field [5] and "exclusive rights".
Some foreign scholars believe that there is a tense opposition between granting patent monopoly rights to reward those who have mastered skills beneficial to society and acknowledging the inherent adverse effects of the granted monopoly rights on free competition. This problem existed in medieval Europe more than 400 years ago [6]. In other words, the opposition between intellectual property rights and antitrust has never stopped. I don't think so. The early patent monopoly in Europe was mainly related to commercial trade and had little to do with technological progress. It is indeed a monopoly privilege, which is different from modern intellectual property rights. If the opposition between patent monopoly right and anti-monopoly right does exist at this time, then this opposition is completely a struggle against feudal monopoly privilege. Its purpose and result is not to deny and give up the patent right, but to make efforts and contributions to the establishment of an equal property right (private right). Its crystallization is the birth of the patent law with modern significance. If we confuse the patent monopoly right of that year with the later intellectual property rights, and regard the struggle between the patent monopoly right and the anti-monopoly privilege of that year and the relationship between intellectual property rights and anti-monopoly later as a problem of the same nature, it is equivalent to "Guan Gong hitting Qin Qiong".
Although intellectual property rights such as patent rights and trademark rights are granted by the state, this does not affect their becoming civil rights and being regulated by private law. Moreover, some intellectual property rights can be produced without the authorization of the state. The characteristic of modern private law is that all people have completely equal legal status, protecting personal freedom and property has become the primary goal of law, and "sacred ownership" has become the basic principle of private law. Private property is the embodiment of freedom, and safeguarding property rights is the primary goal of society. Property right has not only become the cornerstone of modern constitutional democracy, but also the premise and guarantee of social justice. Of course, when history entered the end of 19 and the beginning of the 20th century, the economic crisis caused by monopoly in the western economic field made the state intervention policy replace laissez-faire. State intervention first led to a large number of social legislation, including anti-monopoly law (Sherman Law 1890), and the tentacles of state power extended to every corner of social economy. Correspondingly, the contemporary western civil legislation shows the trend of public law of private law, the three principles of modern civil law have been revised, and the principle of "sacred ownership" has been impacted in the contemporary era. Kyrk, a German scholar, developed the jurisprudence of "prohibition of abuse of rights" and embodied it in legislation. Item 3 of Article 19 19 of Weimar Constitution of Germany stipulates: "Ownership has obligations, and its exercise should be beneficial to social welfare." However, neither the emergence of social legislation nor the trend of making private law public does not mean the loss of individual freedom and rights. Between social welfare and individual rights, there is no question of which is better or worse. There is no need to choose a standard between them. The key is to achieve a balance between private interests and public interests. Property law as a private law (including intellectual property law) and anti-monopoly law as a public law are not fundamentally opposed in value orientation. The former does not forget social interests when emphasizing individual rights, while the latter should not harm individual interests while paying attention to social welfare. Therefore, even if there is a conflict between intellectual property law and anti-monopoly law, its nature is completely different from the struggle against patent monopoly privilege in those years, and at most it is only the difference in legislative purpose and value orientation between them, but it does not lead to contradiction or opposition between them.
However, according to the viewpoint that intellectual property is a monopoly right, some scholars believe that "intellectual property itself, as a legal monopoly right, … generally exists as an exception to the application of anti-monopoly law." [8] This conclusion may not be a problem if it is put under the background of 1623 monopoly law, but it is difficult to agree with it if it is put under the background of modern intellectual property system and modern anti-monopoly law. Because the premise of this conclusion is that "intellectual property as a private right conflicts with the anti-monopoly law aimed at protecting social welfare", "although intellectual property itself is a legal monopoly right, it limits competition to some extent." [9]
Let's not discuss whether intellectual property itself restricts competition. According to the above point of view, the intellectual property system seems to be the result of the "gift" of the anti-monopoly law. However, as long as we carefully look for the logic of history, we will find that although the production of intellectual property rights such as patent rights lags far behind other property rights, at least western countries have established intellectual property protection systems at the end of 18 and the beginning of 2009 after the completion of the bourgeois revolution. From 1623, when Britain promulgated the Monopoly Ordinance, 1709, the world's first copyright law 1804 The Napoleonic Code promulgated by France affirmed for the first time that trademark rights should be protected like other property rights. [10] As the originator of modern anti-monopoly law, the Sherman Act of the United States came into being at the end of 19 century. If intellectual property exists as an exception to the application of anti-monopoly law, in what form did the intellectual property system exist in the 17, 18 and 19 centuries when anti-monopoly law did not exist? Obviously this view is hard to justify.
Furthermore, under the background of the transformation of western legal system from "personal standard" to "social standard", modern anti-monopoly law came into being, and at the same time, the principle of "ownership first" confirmed by modern civil law (property law) was also impacted and restricted. Nevertheless, the property law of continental law system and common law system have not been abandoned, and the intellectual property systems of various countries are constantly developing and improving, except that "intellectual property is the application of anti-monopoly law". But this view is obviously unacceptable. Of course, ownership cannot be the object of antitrust, nor can intellectual property be the object of antitrust. The so-called "exception" argument regards what should be an inevitable and universal situation as an accidental and special event, as if the anti-monopoly law has become a universally applicable law, while the intellectual property law and even all property laws have become exceptions.
Moreover, judging from the history of legal protection of private property in China, in the early days of reform and opening up, in order to introduce technology and promote scientific and technological progress, "as the beginning of trying to define and protect private property, we chose the most difficult thing to start with-abstracting the patent assets of new knowledge" and "1980 1 deciding to protect the invention patent" [1655]. The anti-monopoly law has not yet been promulgated. How can intellectual property rights become the "application exception" of the law that does not yet exist?
In fact, the property law (including intellectual property law) that protects individual rights and the anti-monopoly law that aims at safeguarding social welfare are two parallel legal departments, which are not in conflict and contradiction, nor are they "exceptions" or "exceptions". Although the anti-monopoly law is called "the Magna Carta of free enterprise", it cannot deny and replace the effectiveness and function of the property law. Although personal property rights are bound to be restricted by social interests, social interests ultimately exist in personal life. Without the protection of private property, it is impossible to realize social interests.
In fact, the contemporary "property law is still a stubborn liberal barrier, resisting the impact of social and legal thoughts, forcing it to camp at the city gate." [12] For a country like China, where private rights have not been paid attention to and protected, it is especially worth cultivating and caring for all kinds of "private rights" including intellectual property rights under the background of developing market economy, instead of labeling them as "monopoly" easily and making them bear a heavy "cross".