On The Protection Of Works Of The Right Of Commercialization Of Intellectual Property Rights

Merchandizing right is a new concept of law, and domestic and international research on this issue is inconclusive. Through the research and analysis of judicial practice's experience at home and abroad, we could see that merchandizing right includes tow kinds of rights-- merchandizing right of natural and merchandizing right of works.Merchandizing right of works is belonging to merchandising right. It means that the copyright owners are entitled to do commercial use of their works exclusively. The definition and nature on merchandizing right of works have not yet formed a unified understanding in our scholars, and there are no relevant legislation requirements either. The judicial practice usually uses the relevant content of existing intellectual property laws to solve the disputes arising from commercial use. As the current law does not work on the merchandizing right of works, the use of existing law to resolve works'disputes arising from commercial use is hard to convince.This article is divided into four parts to analyze the issues about the merchandizing right of works.The first part attempt to clarify the relationship between the merchandizing right and the merchandizing right of woks through defining the definition and nature of the merchandizing right and the merchandizing right of works. That is the merchandizing right of works is a type of merchandizing right. There are some similarities between the merchandizing right of works and the other type of merchandizing right, but there is a clear difference on concept and nature between them. On the basis of clarifying the relationship between the merchandizing right and the merchandizing right of works, the second part tend to analyze the nature of the merchandizing right of works, which could account for that the merchandizing right of works is a new type of property of copyright as resulting from social and economic development. Then the paper will analyze the conditions of the object of merchandizing right of works to define the scope of merchandizing right of works'object. It will include the analysis of the conditions which the parts of the works should meet to. Because we realize that the eligible parts of the works should be the object of merchandizing right of works. The main parts of the works means: fictional characters, fictional place names and titles of works. Thinking and discussion of whether the parts of the works could be the object of the merchandizing right of works are not only the need of establishing the right system, but also helping to improve the object type scope of copyright, which could lead to a more comprehensive protection of the interests of the copyright owner.After the definition of the merchandizing right of works, the third part will interpret the current legislation of the merchandizing right of works in China. First of all, our country does not establish a clear legal system of the merchandizing right of works. And then illustrate the shortcomings of the legal system blank by analyzing the abuse of using current laws to regulate the problem in judicial practice. Finally, the forth part put forward a preliminary proposal to set up the system of the merchandizing right of works in our legal system.The merchandizing right of works is the outcome of development, so to make the law adapt to social changes is our original intention and purpose to study the problem.