Incorporeal Property Protection Regime Change And The Theory Of Evolution

Nowadays, intangible property is a kind of extremely important form of fortune, which imposes substantial influence to peoples'life and work. Accordingly, the protection of intangible property becomes an unavoidable issue of the property law theories. This paper makes a primary research on this field.The value of intangible property is gradually recognized by people with the development of the society and economy. Therefore, the mechanism of intangible property protection by law has experienced a course of starting from scratch to well established in the property system. To observe from the angle of property law, the establishment of the intangible property protection mechanism is a process which intangible property system develops out of the hegemony of the tangible property system. It is a result of the renovation of the property system through meeting the demand of protection of the new form of property of the society. As the intangible property mechanism arises and develops, the theories on property right, as the abstract of the intangible property system, undertakes changes in nature. The purpose of this paper is to analyze and summarize the development of the intangible property protection mechanism and the subsequent changes in corresponding theories, then find out some legal measures to overcome the difficulties in protecting the intangible property, and finally have a renewed understanding on the property and property right after the intangible property came into being. In the research, this paper sets the Intellectual property as a study focus. Because the Intellectual products, as the subject of the Intellectual property right, is a kind of typical intangible property, and the Intellectual property system has developed for several hundred years and becoming relatively mature, it has accumulated rich experiences in intangible property protection. By researching on the Intellectual property, we can find out the legal methods to protect the intangible property and some common principles of intangible property rights. Apart from the introduction and the conclusion, this paper includes 5 chapters.Chapter 1"Circumtances of the intangible property protection in traditional property law system", from the angle of comparative law, this chapter reviews the attitude of traditional property right system to the intangible property both from civil law system and common law system. By reviewing this, this chapter concludes that the intangible property protection and property law system are not commensal. Due to social and historical reasons, the traditional property law system laid little emphasize on the intangible property protection.Chapter 2"The primary legal research and obstacles in further study of the intellectual product protection", this chapter illustrates that as the market economy and capitalism developed, the economic value of intangible products, especially the value of the intellectual product are gradually recognized by people, which gave birth to the demand of protecting the intellectual product. In the face of this demand, the initial methods provided by law was monopoly and franchise as well as other ways from public law, however, this kind of protection has obvious disadvantages. Through the guide of the theory of property-labor and a analysis of the economic attribute of the intellectual product, we find that only by way of property right can intellectual product be better protected. However, the intangibility and share nature of the intellectual product as well as issues on monopoly in the protection become handicaps in transforming the Intellectual products into intellectual property.Chapter 3"The overcome of the protection obstacles by the intellectual property", this chapter researches the measures that law responds to the intangibility and share nature as well as the monopoly, expounds the improvement of the legal conception and legal technology in the course which intellectual property system overcomes the obstacles of transforming the intellectual product into intellectual property. First, the idealistic possession enables the controllability of the intellectual product, the materialize of the carrier, the cognizance to the infringement of right in the remedies and the system of announcement play an important role in determining the boundaries of the intellectual property right, all of these is helpful in overcoming the intangible obstacles; second, by distinguishing the private interest and public interest as well as the confinement of the right period, intellectual property right solves the conflict that the nature of share and the nature of proprietary exit in a single property; finally, by confining the intellectual property right using some mechanisms such as compulsory license, fair use and exhaustion of rights etc, the law relieves some issues concerning monopoly in the intellectual property protection.Chapter 4"The realization by law in protecting the intangible property right", By reference to the protection of intellectual product, this chapter illustrates in what ways the law protects the intangible property. First, the development of the recognition standard of the possession controllability makes the control of intangible objects possible; second, the development of special way of confirming rights of intangible objects and reference to the evaluation methods of the intangible assets in accounting make the boundaries of intangible rights and protection scope clear; finally, the utilitarian-oriented development of the property right demonstrates the justifiability that the intangible property should be protected by property law. It is the advantages in the technical and theoretical aspects that make the intangible property protection by law come true.Chapter 5"The development on the property right system and theories under the influence of intangible property protection", this chapter points out that under the influence of the intangible property right, the property right system lays more emphasize on its openness, enables it compassing more form of property. The legislation and theories of many countries has made experiment on this issue, and the property right system developed accordingly. As the property right develops and extends, the property gradually sticks to the positivism and the principle of statutory property right, stresses the effect of the nation, and keeps the interest in a balance state. In the theory, under the influence of the intangible property protection, the understanding of property has undergone a transformation from material to right, and this kind of transformation is a phenomenon happens in civil law system as well as in common law system.