On Intellectual Property And Free Trade

This paper, the intellectual property rights and free trade as an entry point, combined with a balance of interests and the anti-trust law and other principles of free trade around the intellectual property rights and the unity of opposites relations, attempts to solve the practical problems in theory, legislation and law enforcement, so that the intellectual property rights and free trade can continue to co-exist in each other, mutual promotion and coordinated development. Full-text consists of seven parts, in addition to the foreword, the other six parts are as follows:relations between intellectual property and free trade; overcoming non-institutional structure barriers of intellectual property; judicial system of intellectual property; abuse of intellectual property rights in trade; legal regulation of intellectual property abuses; improving the relevant legal system.The first chapter is about the relations between intellectual property and free trade, including three sections:free trade; intellectual property rights and free trade were born in the market; goal synergy of intellectual property rights and free trade. In the evolution of free trade, there were the "Theory of absolute advantage", "Theory of comparative advantage", "Theory of elementary resources" and the "New trade theory" and so on. Intellectual property system and free trade are intended to form a rational trade order to achieve market interests; for the operating mechanisms, intellectual property rights are for specific performance of the system of social structures, while free trade is a matter of principle and abstract concept. Intellectual property rights are enjoyed by the civil subject. They are above all private property rights, but also with human attributes.With the legitimacy of intellectual property protection, their protection can not go beyond certain limits, should strive to balance the complex interests. It can be said, to a certain extent, free trade dominated the direction and future of intellectual property development. Intellectual property is a means to achieve free trade, for free trade with the order of value.IP has a history of the development trajectory, with the maturity of the domestic market, resulting from, and later accompanied by the opening up of international markets, the expansion of free trade and the intellectual property itself and a new increment. Of intellectual property rights and free trade objectives of synergies mainly for the expansion and internationalization of intellectual property rights and free trade expansion. In the 20th century, the last quarter of a century, the intellectual property protection is in the scope of rights and the emergence of an object though not uniform, but is quite large-scale expansion. The expansion of free trade, intellectual property for the structure itself provides the basis for the economic system, when this expansion to achieve cross-stage, free trade resulted in the internationalization of intellectual property legislation and integration requirements.ChapterⅡdiscusses the intellectual property barriers to free trade and how to overcome the non-institutional structure. Intellectual property rights and free trade are with the goal of interoperability. But the synergies between them do not mean that in the specific process of social change they are not discord, and even may sometimes appear on the surface of privatization and economic efficiency generation technology the illusion of paradox:the new intellectual achievements of the privatization process is conducive to inefficient allocation of resources to solve the market problems, but the privatization of the control mechanism to activate the capital market has also produced all the disadvantages of monopoly market power. Can this contradiction be resolved? In certain exceptional circumstances, the market allocation of resources may fail, which is manifested in the field of intellectual property right, a non-system structural obstacles to free trade.Non-institutional structural barrier is not necessarily the logical structure of the system, it can be overcome. Whether the expansion of intellectual property rights, or patents focus on the trend of standardization, its free trade over the potential difficulties and threats, so if the form of the problem, then, can be summed up as "how to configure the interest." And physical objects of benefits arising from different rules regulating intellectual property must be used to configure a certain extent, stressed the public interest. The expansion of rights and the principle of public interest, the concentration of the field of application are based on intellectual property rights of non-voluntary licensing system forms presented. The specific terms of the existing system, that is, the fair use of copyright law, the statutory license and compulsory licensing and the compulsory licensing system of patent law, work well. But this does not mean that copyright, patent licensing policy intervention is to hinder free trade; on the contrary, such a policy intervention goal is clear in order to form a broader free trade.In addition, the promotion of cultural form-democracy and the "world" thinking to complement, but also to overcome the non-structural barriers to free trade, is an important idea. At the international level the coordination of intellectual property rights and free trade promotion, in addition to the concept of psycho-social and institutional reconstruction, one should introduce "political dialogue" concrete measures. The interests involved in intellectual property issues, the global system formation and balance of interests in reality, though remote, may be also urgently needed in today’s world. To overcome this problem with a paradox, it can be resolved on the idea of "dialogue", in particular Habermas imagined long-term rational dialogue with the ideal conditions.Chapter III discusses the judicial system of intellectual property rights to free trade. Legal recognition of intellectual property, is the starting point of market competition and trade in the system; giving exclusive rights to intellectual property, inspired the innovation enthusiasm of creators, but also become major market incentives and competing interests involved in the system protection. In this sense, Posner said that "the market and property rights go hand in hand; property for private economic activity provides the basic incentives, but also the starting point of transaction, while the resources are transferred to the transaction with their most valuable uses."In fact, from a trade point of view, this argument seems to permit rights as a starting point in trade of intellectual property. In general, the freedom of contract often expected to achieve maximum benefit; but in some exceptional circumstances, freedom of contract may be subject to consideration of other factors. Intellectual property proceedings are significantly different from the trading behavior of market players, it did not belong to the economics of traditional subjects; however, if the economists can study the market’s basic analysis tools to transform and take advantage of, according to Posner’s understanding, broader use of economics will be possible. Because economists have an assumption as a basic tool, "that people are self-satisfaction of rational maximizers."People in the trade activities are in a rational condition for the dominant practice of the acts of freedom; Similarly, in the event of non-normal trading circumstances, market players may still be under the guidance of reason to seek the relief system, and efforts to obtain a state of normal trade can expect as much interest. This chapter explores China’s current judicial, administrative, public policy and other aspects of the market analysis of the effects of free trade, intellectual property protection in China, seeks to outline the context of the information property system and the interaction between market transactions and future vision.Chapter IV carried out in-depth analysis of intellectual property abuses in trade. Of intellectual property abuse is an abuse of civil rights, refers to the right person in the exercise of intellectual property rights beyond the scope permitted by law or the proper limits, improper expansion of the scope of monopoly power, or by virtue of the legal monopoly of the right to further pursue the illegal advantage of monopoly or competitive position, resulting in the misuse of the rights, damage to others or social public interests of the situation. This chapter analyzes the respective field of intellectual property acts of abuse of market dominant position, intellectual property licensing restrictions on competitive behavior in the joint enterprise with the intellectual property control behavior, abuse of intellectual property right of appeal, etc., as well as the causes of intellectual property abuse.UK Intellectual Property Committee in its 2002 Report on Intellectual Property Rights, said that intellectual property seems to have degenerated into the developed countries in the global expansion of its business model and the fight for economic hegemony of the able "accomplice." Some multinationals intensified, taking advantage of such means to change the law to further expand the scope of protection and to improve the level of protection. They are completely "alienation" of the system, and now the fundamental purpose of intellectual property protection is no longer to encourage innovation, but mainly to protect these giants of the business model. This has greatly hindered the dissemination of knowledge, affected the proliferation of new technologies and constrained innovation.To prevent the abuse of rights, we must uphold the principle of balance of interests. Adhere to the principle of balance of interests, the interests of the right holder and the public are given full consideration and attention.Chapter V regulated intellectual property rights from the abuse. Regulation of the theoretical basis for the abuse of intellectual property rights is also divided into three parts, namely, self-regulatory system of intellectual property rights, the basic principles of civil law regulation and competition law regulation. The internal constraints that limit the rights contained in itself, which means the right to itself contains obligations, rights, for social purposes should be exercised; outer limit of the means to recognize and guarantee the inviolability of rights under the premise of the exercise of freedom to appropriate restrictions on public law measures.On the abuse of intellectual property rights in terms of internal regulation, respectively, from the patent law, copyright law and trademark law perspectives, discusses how to conduct the abuse of intellectual property regulation. Because a large number of intellectual property right abuses constitute a restriction of competition, so by the competition law essentially limits the conduct of competitive abuse of intellectual property regulation is absolutely necessary.Chapter VI from the " Changes and developments of intellectual property law ", " A number of ideas to improve the anti-monopoly legislation in the field of intellectual property in China " and "Perfect the regulation for abuse of right to appeal in intellectual property system", put forward a perfect 3-related legal system idea. On December 27,2008, the Eleventh Meeting of the Sixth NPC Standing Committee, the fourth plenary vote for the "National People’s Congress Decision on the Amendments to Patent Act of People’s Republic of China ". So far, China successfully completed the third revision of the patent law to make it more perfect. One of the main tasks of this amendment is to strengthen patent protection, safeguarding the public interest, a reasonable balance between the public and the interests of the patentee to prevent patent abuse, such as improving the provisions relating to compulsory licensing, an increase in the pharmaceutical or medical exceptions (Bolar Exceptions), etc.National People’s Congress Standing Committee on August 30,2007 formally adopted the highly anticipated "Anti-monopoly Act of the People’s Republic of China," the law put in force on August 1,2008. Be described as "Decade of grinding sword", anti-monopoly legislation is important, but the establishment of anti-monopoly agencies to ensure the effective implementation of the law enforcement system is more important. Law does not enforce its own, and anti-trust laws can not by itself create a just and free market environment, but must be by means of independent, efficient and authoritative anti-monopoly law enforcement agencies.