The concept of intellectual property what

Intellectual property, also known as "intellectual property rights", refers to "the property rights of the owner of the fruits of his intellectual labor", which are generally valid only for a limited period of time. Intellectual creations such as inventions, designs, literary and artistic works, as well as logos, names, and images used in commerce, can be considered intellectual property owned by an individual or organization. According to Professor Mark Lemley of Stanford Law School, the widespread use of the term "intellectual property" is one that emerged after the creation of the World Intellectual Property Organization in 1967.

Intellectual property is the exclusive right to the fruits of intellectual labor 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 rights system came into being and constantly improved. Nowadays, the infringement of patent, copyright, trademark and other violations of intellectual property rights are more and more. 17th century, the first half of the modern patent system; one hundred years later, the "patent specification" system; and after more than a hundred years, from the court in dealing with infringement disputes, the need to start, only to produce a The "Claims" system came into being more than a hundred years later, starting with the need for courts to deal with infringement disputes. In the twenty-first century, intellectual property is closely related to human life, full of intellectual property rights, and we can see its important role in business competition.

Patents for inventions, trademarks, and industrial designs comprise industrial property. Industrial property rights include patents, trademarks, service marks, trade names, appellations of origin, as well as exclusive rights to new plant varieties and layout designs of integrated circuits, etc. On April 24, 2017, the Supreme Court released for the first time the "Outline of Judicial Protection of Intellectual Property Rights in China. [1]?

Types

I. Copyright and Industrial Property Rights

Intellectual property is the ownership of the fruits produced by intellectual labor, and it is the exclusive right granted to eligible authors and inventors or owners of fruits for a certain period of time in accordance with the laws of each country.

There are two types of intellectual property: one is copyright (also known as copyright, literary property) and the other is industrial property (also known as industrial property).

(I) Copyright

Copyright, also known as copyright, is a general term for the property rights and moral rights enjoyed by natural persons, legal persons or other organizations in accordance with law in respect of literary, artistic and scientific works. It mainly includes copyright and neighboring rights related to copyright; usually we say intellectual property mainly refers to computer software copyright and work registration.

(B) industrial property rights

Industrial property rights refers to industrial, commercial, agricultural, forestry and other industries with practical economic significance of an intangible property rights, it seems that "industrial property rights" is a more appropriate name. Mainly includes patent and trademark rights.

Three, intellectual property rights and interests

Personal rights and property rights

(a) personal rights

In accordance with the content of the composition of intellectual property rights by the rights of the person and the right to property rights of the two parts of the composition, also known as the spiritual rights and economic rights.

The so-called personal rights means that the rights are inseparable from the person who obtains the intellectual achievements, which is the legal reflection of the personal relationship. For example, the right of an author to put his name on his work, or the right to publish or modify his work is a moral right.

(2) Property Rights

The so-called property rights refer to the rights of the right holders to obtain remuneration or rewards for the use of intellectual achievements after they have been recognized by law, which is also called economic rights. It refers to the fruits of intellectual creative labor and is a right enjoyed by the intellectual workers for their fruits in accordance with the law.

Intellectual Property Rights

According to Article 27 of the Company Law of the People's Republic of China, shareholders may make contributions in money, or in kind, intellectual property rights, land use rights and other non-monetary property that can be valued in money and can be transferred in accordance with the law; however, except for the property that may not be capitalized as capitalized as stipulated by the laws and administrative regulations.

The contribution of non-monetary property should be assessed as a capital contribution, verification of property, shall not be overestimated or underestimated for the price. Where the laws and administrative regulations provide for the evaluation of value, they shall apply.

Intellectual property rights need to be assessed, the assessment needs to provide the following materials:

1, to provide patent certificates, patent registry, trademark registration certificate, and intangible assets related to the capital transfer contract, handover certificate.

2, fill in the intangible asset contribution verification list. Requirements to fill in the name, validity of the status of the contents of the price in line with the contract, agreement, constitution, signed by the enterprise or acceptance of the seal, to obtain the recognition of the investors, and signed the list.

3, intangible assets should be handled for the transfer of formalities (intellectual property rights for the transfer of property rights registration procedures; non-patented technology to sign a technology transfer contract; land use rights for the change of land registration procedures) but in the capital verification has not yet been done, fill in the capital contribution to the property transfer form to be set up by the enterprise and its contributors to sign, and commitment to the specified period of time to do the relevant procedures for the transfer of property rights; the delivery mode, delivery Location of the contract, agreement, articles of association with the provisions of the contract, agreement, articles of association should be consistent: "receiving party signature" column, signed and sealed by all shareholders.

4. The appraisal report issued by the asset appraisal institution on the purpose of the appraisal, the scope and object of the appraisal, the appraisal reference date, the appraisal assumptions and other relevant qualifications to meet the requirements of the capital verification, and the confirmation of the value of the appraised assets by the parties to the capital contribution.

5, the new company law, article 27 deleted the old paragraph on the proportion of intellectual property capital requirements, means that enterprises can be 100% with intellectual property capital.

6, with patent rights, such as the patent owner for the national ownership units, to provide the approval of the higher authorities; with trademark rights, to provide the approval of the competent trademark department; with high-tech achievements, to provide the national or provincial scientific and technological management department to review and identify the documents.

Industrial property rights

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Trademark rights

Trademark right

Trademark right refers to the trademark competent authority in accordance with the law to grant the trademark owner of its application for trademarks subject to the protection of the state law. Trademark is a commercial sign used to distinguish different sources of goods and services, and consists of words, graphics, letters, numerals, three-dimensional signs, color combinations and sounds, as well as combinations of the above elements. The acquisition of trademark rights in China is subject to trademark registration procedures and the principle of first-to-file. Trademark is a kind of identification mark in industrial activities, so the role of trademark right mainly lies in maintaining the order in industrial activities, which is different from the different role of patent right mainly lies in promoting the development of industry.

Patent protection

The patent protection refers to an invention and creation to the State Patent Office to file a patent application, after the examination and approval in accordance with the law, to the patent applicant to grant the patent applicant in the specified period of time to the invention and creation to enjoy the exclusive right. According to the Chinese Patent Law, there are three types of inventions, inventions, utility models and designs. After a patent for an invention or utility model is granted, the patentee has the exclusive right to the invention, and no unit or individual may implement the patent, i.e., may not manufacture, use, license, sell or import the patented product for the purpose of production and business, without the permission of the patentee. Design patent is granted, any unit and individual without the patentee's permission, are not allowed to implement its patent, that is, not for the purpose of production and management of manufacturing, sales and import of its patented products. Without the permission of the patentee, the implementation of its patent infringement of its patent rights, disputes arising from the parties to the negotiation to resolve; unwilling to negotiate or consultation fails, the patentee or interested parties can be sued to the people's court, you can also request the management of the patent work of the department to deal with. Of course, there are exceptions to non-infringement, such as the right of first use and use for scientific research purposes. Patent protection adopts the protection model of "two channels, parallel operation and judicial guarantee" for judicial and administrative enforcement. The administrative protection in the region adopts the patent enforcement in the form of roving enforcement and joint enforcement, and concentrates its efforts, focusing on group infringement, repeated infringement and other phenomena that seriously disrupt the environment of the rule of law in patents to intensify the crackdown. [2]?

Trade name right

The right to trade name, is the right to use one's registered trade name (trade name, enterprise name) from other people's nuisance. A company's right to a trade name cannot be equated with a person's right to a name (a type of personality right).

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

Introduction of Copyright

Editorial

Works in the natural and social sciences, as well as in literature, music, theater, painting, sculpture, photography, and cinematography comprise copyright. Copyright is a legal provision of a unit or individual on a work of authorship to enjoy the right to print and publish and sell, anyone who wants to copy, translate, adapt or perform, etc. need to get the permission of the copyright holder, otherwise it is an infringement of the rights of others. The essence of intellectual property is to treat human intellectual achievements as property. Copyright is a civil right enjoyed by the original creators of literary, artistic, scientific and technological works in accordance with the law.

In China, copyright, when used in a broad sense, includes (in the narrow sense) copyright, copyright neighboring rights, computer software copyright, etc., which belongs to the scope of the copyright law. This is the exclusive right of the copyright holder to make exclusive use of the copyrighted material (work). Copyright in the narrow sense is further divided into the right of publication, the right of attribution, the right of modification, the right to protect the integrity of the work, the right of use, and the right to receive remuneration (Article 10 of the Copyright Law). Copyright is divided into the personal right of authorship and the property right of authorship. It is a characteristic of intellectual property rights that copyright sometimes intersects with patent and trademark rights.

Main contents

1. Copyright arises from the date of completion of the creation of the work.

2. It is also called copyright. Divided into copyright personality rights and copyright property rights. Among them, the connotation of the right to copyright personality includes the right to publicize, the right to name and the right to prohibit others from using the work in a distorted or altered manner to damage the reputation of the author.

3. There are the following rights

(1) the right of publication, i.e., the right to decide whether or not to publicize the work.

(ii) The right of attribution, i.e. the right to indicate authorship and to put one's name on the work.

(3) The right of modification, that is, the right to modify or authorize others to modify the work.

(d) The right to protect the integrity of the work, i.e., the right to protect the work from distortion or alteration.

(v) The right of reproduction, i.e., the right to make one or more copies of the work by printing, copying, topography, sound recording, video recording, ripping and remaking.

(vi) Distribution right, i.e. the right to make available to the public the original or a copy of the work by sale or gift.

(vii) Rental right, i.e., the right to license for a fee the temporary use of a cinematographic work, a work created by a method similar to that of cinematography, or computer software, unless the computer software is not the main subject matter of the rental.

(viii) the right of exhibition, i.e., the right to publicly display the original or copy of a work of art or a photographic work.

(ix) Performance right, i.e., the right to perform the work in public, as well as the right to broadcast the performance of the work in public by various means.

(j) The right of projection, i.e., the right to publicly reproduce, by means of technical equipment such as projectors, slide projectors, etc., works of art, photographs, films, and works created by methods similar to those used in the making of films, etc.

(xi) Broadcasting right, namely, the right to publicly broadcast or disseminate a work by wireless means, to disseminate a broadcast work to the public by wire transmission or retransmission, and to disseminate a broadcast work to the public by means of a loudspeaker or other similar means of transmitting symbols, sounds or images.

(xii) The right of dissemination through information networks, i.e. the right to make a work available to the public by wired or wireless means, so that the public may have access to the work at a time and place of their personal choice.

(xiii) Cinematographic right, i.e. the right to fix the work on a carrier by means of cinematography or a method similar to cinematography.

(xiv) The right of adaptation, i.e., the right to change the work to create a new work of original creation.

(xv) The right of translation, i.e., the right to convert a work from one language and script to another.

(xvi) The right of compilation, i.e., the right to bring together a work or a fragment of a work by selecting or arranging it into a new work.

(xvii) Other rights that should be enjoyed by the copyright owner.

Copyright protects the form of expression of ideas, not the ideas themselves, because while copyright protects the interests of such exclusive private property rights, it must also take into account the accumulation of human civilization and the dissemination of knowledge and information, and thus algorithms, mathematical methods, technologies or machine designs are not the subject of copyright protection. [3]?

IV. Characteristics

Main features

(1) Intellectual property is an intangible property.

(2) Intellectual property is characterized by exclusivity.

(3) Intellectual property is characterized by temporality.

(4) Intellectual property is characterized by territoriality.

(5) The acquisition of most intellectual property rights requires statutory procedures, for example, the acquisition of trademark rights requires registration.

Exclusivity

That is, exclusivity or monopoly; no one other than the right holder may enjoy or use the right except with the consent of the right holder or as provided by law. This indicates that the exclusive right of the right holder to exclusive or monopoly is strictly protected from infringement by others. Only through "compulsory license", "expropriation" and other legal procedures can change the exclusive rights of the right holder. The object of intellectual property rights is the intellectual achievements of human beings, which is neither a person nor a personality, nor a tangible or intangible object in the outside world, so it can neither be a personality right nor a property right. On the other hand, intellectual property is a complete right, only as the content of the rights of the interests of both economic and non-economic, so intellectual property rights can not be said to be a combination of the two types of rights. For example, it is not correct to say that copyright is a combination of personal rights (or personal rights in copyright, or moral rights) and property rights in copyright. Intellectual property is a more complex right (multiple rights) with both economic and non-economic aspects. Thus, intellectual property rights should be a category of their own alongside personality rights and property rights.

Territoriality

That is to say, it is valid only in the territory where it is recognized and protected; that is to say, unless there is an international convention or a bilateral reciprocal agreement, a right protected by the law of a country is legally effective only within the scope of that country. So intellectual property rights are both territorial and, under certain conditions, international.

Temporal

That is, only in the specified period of protection. That is, the law on the protection of rights, are stipulated in a certain period of validity, the law of the protection of the duration of the period of time may be the same, may not be exactly the same, only to participate in the international agreement or international application, only to a certain right to have a unified period of time for the protection of the rights.

The right is absolute

In some aspects, it is similar to the right of ownership, for example, it is the right of direct dominion over the object, which can be used, gained, disposed of, and dominated by others (but without possession); it is exclusive; and it has the property of transference (including inheritance), and so on.

Legal restrictions

Although intellectual property rights are private rights, although the law also recognizes that it has an exclusive monopoly, but because of the intellectual achievements of people with a high degree of public ****, and the development of social and cultural and industrial development has a close relationship with the law is not suitable for anyone to long-term monopoly, so the law of intellectual property rights provides for a lot of limitations:

Firstly, from the occurrence of the right to say that the law for the Firstly, the law provides various positive and negative conditions and methods of publicity for the occurrence of rights. For example, patent rights are subject to application, examination and approval, and various conditions are stipulated for the granting of patents for inventions, utility models and designs (Articles 22 and 23 of the Patent Law), and patents are not granted for certain matters (Article 25 of the Patent Law). Although copyright does not have these restrictions on application, examination and registration, it also has restrictions under Articles 3 and 5 of the Copyright Law.

Secondly, the laws have special provisions on the duration of rights. This is the intellectual property rights are very different from ownership rights.

Third, the right holder has certain obligations to use or implement. The law provides for a compulsory license or compulsory implementation of the licensing system. For copyright, the law also provides for fair use.

Legal Characteristics

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

One is the territoriality of intellectual property rights, that is, in addition to signing an international convention or a bilateral or multilateral agreement, according to the law of a country to obtain the rights can only be valid in the territory of the country, by the law of the country to be protected

Secondly, the exclusive use of intellectual property rights, that is, only the right to enjoy, others do not have to go through the licensee, and the licensee is not the right to enjoy the rights.

The third is the timing of intellectual property rights, the laws of various countries on intellectual property rights were stipulated for a certain period of time, after the expiration of the right to automatically terminate.

"Intellectual property rights refers to the citizens, legal persons or other organizations in the creative labor accomplished intellectual achievements in accordance with the exclusive rights enjoyed by the law, protected by law, inviolable." [4]?

V. Role

(1) for the rights and interests of the completion of intellectual achievements provides legal protection, mobilized people engaged in scientific and technological research and literary and artistic works of creativity and enthusiasm.

(2) for the promotion of intellectual achievements and dissemination of the application of the legal mechanism for intellectual achievements into productive forces, applied to the production and construction, resulting in huge economic and social benefits.

(3) It provides legal guidelines for international economic and technical trade and cultural and artistic exchanges, and promotes the progress of human civilization and economic development.

(4) As an important part of modern civil and commercial law, the legal system of intellectual property is of great significance to the improvement of China's legal system and the construction of a rule of law country.

References

1.? The Supreme Court released the "Outline of Judicial Protection of Intellectual Property Rights in China" for the first time? CCTV [cited 2017-04-24]

2.? Research on the Role Mechanism of Patent Acquisition, Patent Protection, Patent Commercialization and Technological Innovation Performance?． China Knowledge [cited 2017-08-04]

3.? Research on the Rights System of Copyright--Theoretical Discussion on the Main Line of the Person of Original Sexual Interest?． China Knowledge Network [cited 2017-08-04]

4.? New Theory on the Characteristics of Intellectual Property Rights? China Knowledge Network [cited 2017-08-04]

5.? Analysis of intellectual property rights network infringement?． China Knowledge Network [cited 2017-08-04]

6.? Too grim |An article to tell you why intellectual property protection!!!?． Fast Legal [cited 2017-08-11]

7.? Evolution and Evaluation of Intellectual Property Strategies of Chinese and Foreign Enterprises?． China Knowledge [cited 2017-08-04]

8.? State Office Issues Key Points for This Year's Efforts to Combat Intellectual Property Rights Infringement and the Manufacture and Sale of Counterfeit and Shoddy Goods?． China Economic Net. 2016-05-04[cited 2016-05-04]

9.? China's rapid growth in the number of intellectual property rights Applications for 4 consecutive years the world's first???. China Economic Net [cited 2015-04-16]