The Foundation Of Intellectual Property Rights System

The intellectual property law is a science with poor systematization, but as a regime of regulating related legal relations of intellectual property rights, establishment of such right system shall become the starting point to spur on the change of other factors of legal relationship. So many jurists are making efforts to establish the systematical theory of intellectual property, including many basic theories. Since intellectual property law has statutory feature, in the eyes of legal norm, it means how to structure a scientific intellectual property right system. It is not perfect to define the object of right according to the extent of creativity and the variety of character, and the traditional standard can not definite intellectual property rights exactly and protect them well. Because of the development of modern society has broken through traditional intellectual property concept, eventually there is also a trend of basic theory research on intellectual property all over the world. Analysis, abstraction and summarization of intellectual property right and its system at the basic level shall produce great realistic significance to the theory and legislation of intellectual property law. Also this paper is based on this to discuss the regime of intellectual property.At present, the research of intellectual property theory in our country have been paid great attention to details of intellectual property rights. But detailing research without support by basic theory shall violate the research rule in social science field. So the theory of intellectual property should be developed with the process of systematizing. The core of intellectual property law is rights. So the prerequisite for systematization of intellectual property law is that we should define the unique or distinctive character of intellectual property rights in the simplest words, which shall provide a clear standard to distinct intellectual property right from other rights. Otherwise, it is hard to have a correct understanding of intellectual property and further research on it. There are some"failures"in the basis which current intellectual property right is based on, and there is some unreasonableness in intrinsic value and system arrangement of intellectual property law, which show the necessities of correction. The system of intellectual property rights need new and more solid foundation to support. The new foundation of intellectual property right is not to provide a standard answer, but to avoid narrowness and one-sidedness, adapt itself to the expanding intellectual property and make efforts to balance the interests between them. Modern intellectual property right system should be established on the conception basis of substitute knowledge products and value basis of interest distribution, which together have formed the foundation of intellectual property right system and provide theoretical basis for legislation. The above-mentioned basis shall be utilized as the earlier probe in the research of the systematization of intellectual property law.The author plans to research intellectual property rights by way of analyzing the limitations on originally systematical basis under the background of theory and society, try to discover why the basis of intellectual property rights are so weak, in the end the author put forward his own opinion. Such research does not need basic theory of civil law and intellectual property law, but also need deep understanding of some basic theoretical category of jurisprudence, legal history, legal economics and modern social background. Therefore, the writer has not only read many western philosophical or social masterworks to study the nature of intellectual property by the way of historical analysis and functional analysis approach, which helps the author to ponder the nature and justification of intellectual property. On the other hand, the author also investigated the influence of new science and technology and mastered some representative social dynamics to comprehend the value and the function of intellectual property rights. As a result, the writer has been fully prepared to complete this article.There are six chapters in this article. The brief contents of every chapter are as follows."Introduction"presented the main contents of this article including its methodology, research consideration and significance on the basis of literature survey. The writer first pointed out the significance of this subject by way of studying the current research in intellectual property circles, discussed some controversies about the concept of intellectual property rights at home and abroad, put forward that correct understanding of the connotative meaning of the intellectual property concept should be based upon the research intellectual property rights themselves. Chapter 1,"the Essence and Justification of intellectual property rights"first discusses the justification of property right. The writer paid special attention to"fruits of labor"theory of Rock's nature law and Hegel's property right freedom and inquired into the applicability and limitation of above theories and deeply thought the rationalization and justification of the regime of intellectual property, which provide theoretical premise for this article. How to unite the endless debate on the systematization of intellectual property? The key is to find out the logic point of contact between them.Chapter 2,"Traditional basis of intellectual property right system"introduced the traditional logical structure of intellectual property rights, and indicated that the systematical basis of rights should include concept basis and value basis. The writer revealed that the concept basis (namely intellectual property) and the value basis (namely the principle of"encouraging creation") could not cover all objects of intellectual property rights in the modern society. So the current foundation of intellectual property right system is fairly weak. With the development and utilization of various new technologies, the calm structure of intellectual property has been shattered in industrial economic times, which also presented new demands in the content of intellectual property rights. This trend further weakened frail traditional intellectual property system. In the end, this chapter pointed out that to respond the economical, ethical and institutional influence of new technological revolution, it is important to reinforce the applicability and contain-ability of intellectual property regime through institutional innovation.Chapter 3,"Why is the foundation of intellectual property right system weak?"was about three major factors leading to the weak systematic basis. The first factor is that the regime of intellectual property appeared in Britain in the 17~18th century industrial revolution, but now the regime cannot pace with the development of human society, which need more integrated foundation to strengthen the regime. The second factor was the influence of new science and technology. The objects are of intellectual property rights are increasing more but also deviate from the traditional meaning in its scope and character and shattered the intrinsic principles and ideology. The development of science and technology caused the foundation of intellectual property rights unstable. The third factor was from the academic circles. The separate research between intellectual property law and civil law caused the study of this legal field to fail to form a complete and coordinate system. On the other hand, most of jurists were devoted to some specific technological field or comparative study of certain realm, which had violated the development rule of social science and resulted in little attention to the fundamental problems of intellectual property rights.Chapter 4,"Factors determining the foundation of intellectual property rights system"firstly compared with the design concept, nature and character, and contents of rights between intellectual property rights and rights of things, then discussed the subject factors and object factors that determine the foundation of intellectual property rights. The author revealed that the regime of intellectual property reflected the understanding of selfishness and rationality of human beings and human beings'rationality should be prerequisite of legislation. This chapter further pointed out that the regime of intellectual property, as a formal institutional arrangement, shall be established in consideration of its function—the functional demand of social system to design and abstract the foundation of intellectual property rights.Chapter 5,"Rebuilding up the foundation of intellectual property rights system", firstly the possibility of rebuilding up of the foundation of intellectual property rights system, and pointed out that there is one distinctive common in objects of intellectual property, that is, value does not lie in its physical attributes but in description of its sources. Therefore, intellectual property rights have"categorized"characteristics, which make it possible to unify the object of intellectual property. Then, the author explained that the new foundation of intellectual property rights are also divided into concept foundation and value foundation, the former refers to the knowledge products with market demand and substitutability under the market economic and under the protection of intellectual property law; the latter means that intellectual property should be conducted mainly on the basis of interest distribution. Both foundations together form the basis of intellectual property right system and provided the legislative basis for intellectual property law.