What is the concept of intellectual property?

1. Intellectual property, also known as "the ownership of knowledge", refers to "the property rights enjoyed by the obligee on the fruits created by his intellectual labor", which is generally valid only for a limited time. All kinds of intellectual creations, such as inventions, designs, literary and artistic works, as well as signs, names and images used in business, can be regarded as intellectual property rights owned by a certain person or organization. According to Professor Mark Lemley of Stanford University Law School, the word "intellectual property" was widely used after the establishment of 1967 World Intellectual Property Organization.

Intellectual property is the exclusive right of intellectual labor achievements created by human beings in social practice. With the development of science and technology, in order to better protect the interests of property owners, the intellectual property system came into being and was constantly improved. Nowadays, there are more and more violations of intellectual property rights such as patents, copyrights and trademarks. The modern patent system came into being in the first half of17th century. A hundred years later, the "patent specification" system came into being; More than a hundred years later, the system of "patent claim" came into being for the need of the court to deal with infringement disputes. 2 1 century, intellectual property rights are closely related to human life and are everywhere. We can see its important role in business competition.

Invention patents, trademarks and industrial designs constitute industrial property rights. Industrial property rights include patents, trademarks, service marks, manufacturer's name and country of origin, as well as the right to new plant varieties and the exclusive right to layout design of integrated circuits. On April 24th, 20 17, the Supreme Law issued the Outline of Judicial Protection of Intellectual Property Rights in China for the first time. [ 1]?

Second, the type

I. Copyright and industrial property rights

Intellectual property is the ownership of the results produced by intellectual labor, and it is an exclusive right granted to qualified authors, inventors or owners of results in a certain period of time according to the laws of various countries.

It has two types: one is copyright (also known as copyright and literary property rights) and the other is industrial property rights (also known as industrial property rights).

(1) Copyright

Copyright, also known as copyright, refers to the property rights and spiritual rights that natural persons, legal persons or other organizations enjoy in accordance with the law for literary, artistic and scientific works. Mainly including copyright and neighboring rights related to copyright; Usually, what we call intellectual property mainly refers to the copyright of computer software and the registration of works.

(2) Industrial property rights

Industrial property right refers to an intangible property right with practical economic significance in industries such as industry, commerce, agriculture and forestry, so the name "industrial property right" is more appropriate. It mainly includes patent right and trademark right.

Three. Intellectual property rights and interests

Personal rights and property rights

(1) individual rights

From the content point of view, intellectual property rights are composed of personal rights and property rights, also known as spiritual rights and economic rights.

The so-called personal right means that the right is inseparable from the person who has made intellectual achievements, and it is a legal reflection of personal relationship. For example, the author's right to sign a work, or the right to publish or modify a work, is a spiritual right.

(2) Property rights

The so-called property right refers to the right that the obligee can use these intellectual achievements to get remuneration or rewards after they are recognized by law. This right is also called economic right. It refers to the results of intellectual creative labor and the rights that intellectual workers enjoy according to law.

Intellectual property investment

According to Article 27 of the Company Law of People's Republic of China (PRC), shareholders can make capital contributions in cash, or in kind, intellectual property rights, land use rights and other non-monetary properties that can be valued in money and transferred according to law. However, except for the property that cannot be used as capital contribution as stipulated by laws and administrative regulations.

Non-monetary property as capital contribution shall be evaluated and verified, and its value shall not be overestimated or underestimated. Where there are provisions in laws and administrative regulations on evaluation and pricing, those provisions shall prevail.

Where intellectual property investment needs to be evaluated, the following materials shall be provided during the evaluation:

1. Provide patent certificate, patent register, trademark registration certificate, transfer contract related to intangible assets investment, handover certificate, etc.

2. Fill in the intangible assets investment verification list. Required name, effective status, pricing, etc. Conform to the contract, agreement and articles of association, and be signed or accepted by the enterprise, recognized by all investors and signed on the list.

3. Intangible assets should be transferred (intellectual property rights should be registered for property rights transfer; Signing technology transfer contracts for non-patented technologies; If the land use right has gone through the land change registration formalities), but it has not been completed at the time of capital verification, fill in the Transfer Form of Capital Contribution Property, which will be signed by the enterprise to be established and its investors, and promise to complete the relevant property right transfer formalities within the prescribed time limit; Where the contract, agreement and articles of association stipulate the delivery method and place, it shall be consistent with the contract, agreement and articles of association: the column of "signature of the recipient" shall be signed and sealed by all shareholders.

4. The appraisal report issued by the asset appraisal institution that the appraisal purpose, appraisal scope and object, appraisal benchmark date, appraisal assumptions and other relevant limited conditions meet the capital verification requirements, and the confirmation documents of investors on the asset value appraisal.

5. Article 27 of the new Company Law has deleted the requirement of the old paragraph about the proportion of intellectual property investment, that is, enterprises can contribute 100% of intellectual property investment.

6. Where the investment is made by a patent right, and the patentee is a unit owned by the whole people, the approval of the superior competent department shall be provided; Where the investment is made with trademark rights, the approval of the competent department of trademarks shall be provided; With high-tech achievements, provide documents for examination and confirmation by the national or provincial science and technology management department.

industrial property right

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trademark right

Refers to the exclusive right granted by the trademark authority to the trademark owner to apply for trademark protection as stipulated by national laws. Trademark is a commercial symbol used to distinguish goods and services from different sources, which is composed of words, graphics, letters, numbers, three-dimensional symbols, color combinations and sounds, and the combination of the above elements. The acquisition of trademark rights in China must go through trademark registration procedures and implement the principle of first application. Trademark is a kind of identification mark in industrial activities, so the function of trademark right mainly lies in maintaining order in industrial activities, and the difference from patent right mainly lies in promoting industrial development.

patent protection

Refers to the invention-creation that has filed a patent application with the State Patent Office and passed the examination according to law, and granted the patent applicant the exclusive right to invention-creation within a specified time. According to China's patent law, there are three kinds of inventions, namely, inventions, utility models and designs. After a patent for invention and utility model is granted, the patentee enjoys exclusive rights to his invention and creation. No unit or individual may exploit the patent without the permission of the patentee, that is, it may not manufacture, use, promise to sell, sell or import the patented product for production and business purposes. After the design patent is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, may not manufacture, sell or import the patented product for production and business purposes. Without the permission of the patentee, the implementation of his patent will infringe his patent right and cause disputes, which shall be settled by the parties through consultation; Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. Of course, there are exceptions to non-infringement, such as prior right to use and use for scientific research purposes. Patent protection adopts the protection mode of "two-way parallel and judicial guarantee" between judicial and administrative law enforcement. The administrative protection in this area takes the form of patrol law enforcement and joint law enforcement, focusing on cracking down on group infringement, repeated infringement and other phenomena that seriously disturb the patent legal environment. [2]?

Trade name right

In other words, the manufacturer's name right is the right to use its registered trademark name (manufacturer's name, enterprise name) without interference from others. The business name right of an enterprise cannot be equated with the personal name right (a kind of personality right).

In addition, such as the name of origin, know-how and anti-unfair competition are also stipulated in the Paris Convention, but the name of origin is not an intellectual achievement, and know-how and unfair competition can only be protected by the anti-unfair competition law, generally not included in the scope of intellectual property rights.

Copyright introduction

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Natural science, social science, literature, music, drama, painting, sculpture, photography and film works constitute copyright. Copyright refers to the right of a unit or individual to print, publish and sell a work according to law. Anyone who wants to copy, translate, adapt or perform needs permission from the copyright owner, otherwise it will infringe on the rights of others. The essence of intellectual property rights is to treat human intellectual achievements as property. Copyright is the original author of literary, artistic and scientific works, and it is a civil right enjoyed by his works according to law.

In China, copyright in a broad sense includes (in a narrow sense) copyright, neighboring rights of works, computer software copyright and so on. , which belongs to the scope stipulated by the copyright law. This is the exclusive right of the copyright owner to use the crop (work). In a narrow sense, copyright is divided into the right of publication, the right of signature, the right of modification, the right to protect the integrity of a work, the right to use it and the right to receive remuneration (article 10 of the Copyright Law). Copyright is divided into personal rights and property rights of works. Copyright, patent right and trademark right sometimes overlap, which is a feature of intellectual property rights.

main content

1. Copyright comes into being from the date of creation.

2. Also called copyright. Divided into personality right and property right of works. Among them, the connotation of the personality right of a work includes the right of public publication, the right of name and the right to prohibit others from using the work to damage the author's reputation by distorting or tampering.

3. Have the following rights

(a) the right to publish, that is, the right to decide whether the work is open.

(2) The right of authorship refers to the right to identify the author and sign his name on the work.

(3) the right to modify, that is, the right to modify or authorize others to modify a work.

(four) the right to protect the integrity of the work, that is, the right to protect the work from distortion and tampering.

(5) The right of reproduction refers to the right to make one or more copies of a work by means of printing, photocopying, rubbing, recording, video recording, copying or remaking.

(6) the right of distribution, that is, the right to provide the original or duplicate of a work to the public by way of sale or gift.

(7) The right to rent, that is, the right to temporarily license others to use film works, works created by methods similar to filming, and computer software, except that computer software is not the main object of rent.

(8) The right of exhibition means the right to publicly display the originals or duplicates of artistic works and photographic works.

(nine) the right to perform, that is, the right to publicly perform a work and publicly broadcast the performance of the work in various ways.

(10) The right to show, that is, the right to publicly copy the art, photography, movies and works created in a way similar to filming through projectors, slide projectors and other technical equipment.

(11) Broadcasting right, that is, the right to broadcast or disseminate works in public by wireless means, to disseminate broadcasting works to the public by wired transmission or rebroadcasting, and to disseminate broadcasting works to the public through loudspeakers or other similar tools for transmitting symbols, sounds and images.

(12) The right of information network communication refers to the right to provide works to the public by wired or wireless means, so that the public can obtain the works at the time and place they choose.

(13) the right to make a film, that is, the right to fix a work on a carrier by making a film or by similar means.

(14) the right of adaptation, that is, the right to change a work and create a new work with originality.

(15) the right to translation, that is, the right to convert a work from one language to another.

(16) The right of assembly refers to the right to assemble a work or a piece of work into a new work through selection or arrangement.

(seventeen) other rights that should be enjoyed by the copyright owner.

Copyright protects the expression of ideas, not the ideas themselves, because while protecting exclusive private property rights such as works' property rights, it also takes into account the accumulation of human civilization and the dissemination of knowledge and information, so algorithms, mathematical methods, technology or machine design are not the objects to be protected by copyright. [3]?

Fourth, characteristics

main feature

(1) Intellectual property is an intangible property.

(2) Intellectual property rights are exclusive.

⑶ Intellectual property rights have the characteristics of timeliness.

(4) Intellectual property rights are regional.

The acquisition of most intellectual property rights requires legal procedures. For example, the acquisition of trademark rights requires registration.

monopolize

That is, exclusiveness or monopoly; Without the consent of the creditor or the law, no one except the creditor may enjoy or use this right. This shows that the exclusive right of the obligee is strictly protected from infringement by others. Only through legal procedures such as "compulsory license" and "expropriation" can the exclusive right of the obligee be changed. The object of intellectual property is the intellectual achievement of human beings, which is neither a person nor a personality, nor something tangible or intangible outside, so it can neither belong to personality rights nor property rights. On the other hand, intellectual property is a complete right, but the interests as the content of the right are both economic and non-economic, so it cannot be said that intellectual property is a combination of the two types of rights. For example, copyright is the combination of personal rights (or personality rights or spiritual rights) and property rights, which is wrong. Intellectual property is a kind of right with complex content (multiple functions), economy and non-economy. Therefore, intellectual property rights should be juxtaposed with personality rights and property rights and form a class of their own.

sovereign right over territory

That is, it is only valid in the confirmation and protection zone; That is to say, unless an international convention or bilateral reciprocal agreement is signed, the rights protected by a country's laws will only take legal effect in that country. Therefore, intellectual property rights are both regional and international under certain conditions.

in time

In other words, it is only protected for a specified period of time. In other words, the protection of various rights by law has a certain period of validity, and the length of the protection period can be the same or different. Only by participating in international agreements or making international applications can a certain right be uniformly protected.

Belong to absolute rights

In some respects, it is similar to the ownership in real right, such as the right to directly control things, which can be used, benefited, disposed of and controlled by other kinds (but there is no possession problem); Exclusive; Transferability (including inheritance), etc.

legal binding

Although intellectual property is a private right, although the law also recognizes its exclusiveness, but because people's intellectual achievements are highly public, closely related to social culture and industrial development, it is not suitable for anyone to monopolize for a long time, so the law stipulates many restrictions on intellectual property:

First, from the perspective of the occurrence of rights, the law stipulates various positive and negative conditions and publicity methods. For example, the occurrence of patent rights requires application and examination and approval. There are various conditions for the invention, utility model and design to be granted patent rights (Articles 22 and 23 of the Patent Law), but some matters are not granted patent rights (Article 25 of the Patent Law). Although there are no restrictions on the application, examination and registration of copyright, there are also restrictions in Articles 3 and 5 of the Copyright Law.

Second, the law has special provisions on the term of rights. This is a big difference between intellectual property and ownership.

Third, the obligee has a certain obligation to use or implement. The law provides for compulsory license or compulsory license system. For copyright, the law also stipulates a fair use system.

Legal characteristics

Legally speaking, intellectual property rights have three most obvious legal characteristics:

One is the regionality of intellectual property rights, that is, except for signing international conventions or bilateral and multilateral agreements, the rights obtained according to the laws of a country can only be valid within the territory of that country and protected by the laws of that country.

Second, the exclusiveness of intellectual property rights, that is, only the obligee can enjoy it, and no one else can exercise their rights without the permission of the obligee.

Third, the limitation of intellectual property rights, the laws of various countries have stipulated a certain period of time for intellectual property rights, after which the rights will automatically terminate.

"Intellectual property rights refer to the exclusive rights enjoyed by citizens, legal persons or other organizations on the intellectual achievements of creative labor, which are protected by law and inviolable." [4]?

Verb (abbreviation for verb) function

(1) Provide legal protection for the rights and interests of people who have completed intellectual achievements, and mobilize people's enthusiasm and creativity in scientific and technological research and literary and artistic works.

⑵ It provides a legal mechanism for the popularization, application and dissemination of intellectual achievements, transforms intellectual achievements into productive forces and applies them to production and construction, resulting in huge economic and social benefits.

(3) Providing legal norms for international economic, technological, trade, cultural and artistic exchanges, and promoting the progress of human civilization and economic development.

⑷ As an important part of modern civil and commercial law, the legal system of intellectual property rights is of great significance to perfecting our legal system and building a country ruled by law.

reference data

1.？ The Supreme Law first issued the outline of judicial protection of intellectual property rights in China? . Yang guang. Com[ reference date 20 17-04-24]

2.？ Research on the Mechanism of Patent Acquisition, Patent Protection, Patent Commercialization and Technological Innovation Performance? China hownet [reference date 20 17-08-04]

3.？ Research on copyright right system-theoretical discussion based on original interests? China hownet [reference date 20 17-08-04]

4.？ A new theory on the characteristics of intellectual property rights? China hownet [reference date 20 17-08-04]

5.？ Brief Analysis of Intellectual Property Network Infringement? China hownet [reference date 20 17-08-04]

6.？ Too harsh | The article tells you why you should protect intellectual property rights! ? Quick method [reference date 2017-08-11]

7.？ Evolution and evaluation of intellectual property strategy of Chinese and foreign enterprises? China hownet [reference date 20 17-08-04]

8.？ The State Council released the main points of this year's work to crack down on intellectual property infringement and the manufacture and sale of fake and shoddy goods? China Economic Net.2016-05-04 [reference date 20 16-05-04]

9.？ The number of intellectual property rights in China has increased rapidly, ranking first in the world for four consecutive years? China Economic Net [reference date 20 15-04- 16]