Logic Of Intellectual Property Rights Theory Of The Structure Of The Rule Of Law

As an important modern legal institution, intellectual property only has a history of several hundred years from the first act on. But from a perspective of traditional legal theory, there are no such controversial legal institutions as intellectual property. Why has intellectual property been regarded as "food for the rich countries and poison for poor countries"? The dissertation attempts to review the main jurisprudence of intellectual property in chronological order. In late medieval west Europe, intellectual property with modern content emerged following the rapid development of product economy. In the meantime, there are three kinds of intellectual property theories during the Classic period: Locke's labor-based property theory, Rousseau's social contract-based property theory which were established on the concept of 'natural right', and Hegel's personality-based property theory, a different approach, which was established on the concept of 'free will'. In modern time, the dominant theory of intellectual property was economic incentive theory established on a utilitarian philosophy. The incentive theory founded on the free capitalist industrial economy has influenced strongly and widely on the intellectual property institutions of main western countries, and even on their contemporary institutions. In contemporary time, with the transformation of theories of economics, intellectual property institution is gradually regarded as a pure tool and thus an industrial policy to promote economic growth and improve national competition power designed by a nation. In the following chapter, the dissertation explores three pair of analysis tools: national law vs. international law, individuals vs. society, and economic and technological powers vs. weak nations. By analyses, the root of legitimacy crisis of intellectual property appears and the structure of intellectual property is examined. The dissertation holds that we should seriously consider the characteristic of public goods on knowledge under the background of globalization of knowledge-based economy and harmonization of law. The purpose of establishing the rule of law of intellectual property over knowledge mainly focuses on social and public interests by securing individual interests, not the opposite logic. Restructuring the rule of law of intellectual property theory needs a spiritual shift from individual orientation to social orientation and a value shift from incentive to innovation to interest distribution. The dissertation proposes that intellectual property is an important public policy which is orientated by social and public interests and related to distribute and adjust the interests arisen from intellectual property. The characteristic of public good on knowledge and the structure of intellectual property contribute to an attitude of distributive justice, not justice in holdings on intellectual property.