A Study Of Legal Mechanism Of Governmental Regulation Of Intellectual Property Rights

We have entered the era of knowledge economy that the innovation of the intellectual property is the pillar. From a global perspective, intellectual property has become the first resource of economy. Knowledge economy for China is both a good luck and a challenge. The conflicts between population and natural resources with Chinese characteristics determine that the future development of China needs to take the intellectual property innovation road. Only in this way, can we achieve the material and cultural sustainable production. Only in this way, can we expand and enhance the international competition ability of the market main body and the nation.Since the reform and opening up, especially since joining the World Trade Organization, China is closely following the world trend in the innovation, protection and management of the intellectual property and has made remarkable achievements. But there is a long way to go compared with the requirements of the change in mode of development and intellectual property development level of developed countries. How is the intellectual property to adapt to the requirements of scientific development and to narrow the gap with developed countries, and how is it to develop in the standard and is normative in development, is the important topic the legal theory is facing.It is clearly stipulated in the TRIPS that the intellectual property is private. In this regard, WTO members and scholars in different states and regions have almost the same opinion. When the intellectual property is defined as a private right, it can be protected by law, and may be used improperly. The later aspect may be the first reason of government’s intervention. The second motivation of government’s intervention is that the intellectual property is not only a private property right but also a powerful tool for national competition from the overall development perspective. So the government is liable for the development of intellectual property according to the moral and legal obligations. The government’s interventions above are the modern economic functions of state. The government’s intervention to the intellectual property right is a gradual historical evolution process and this process is likely to evolve with the development of knowledge economy and changes of intellectual property right. This process is both a process of economic development and a legal process; is both an authorized intervention process and a limited intervention process.The purpose is to keep the balance of the interests between the IPR’s owner and the public on the basis of fully protecting the IPR owner’s interests when utilizing the government intervention theory and IPR policy theory to analyzing the government’s intervention to IPR. The principle of balanced development is the fundamental rule of the state intervention. The principle can not only clarify the boundary between the state intervention and the IPR owner’s right exercise, and can become the basic legal rule of the state intervention acts. A jurisprudential study of state intervention in intellectual property is focused on solving the following problems:(1) to define reasonably the nature and to understand accurately the legal meaning of the state intervention;(2) to make a comparative analysis of the several research paradigms, and to establish a new theory fulcrum;(3) to construct a model of state intervention acts according to the neo-public service theory.The basic research ideas is from an analysis of rationality of intervention to principle of intervention, then to acts of intervention, and at last to organizational system of intervention. The thesis consists of seven parts. In the first chapter the concept of intellectual property right and state intervention is defined. The history of state intervention in the intellectual property is briefly reviewed. It is appointed out that the nature of privacy of intellectual property is the logical starting point of state intervention. In the second chapter theory of balanced developing is taken as the core ideas of the thesis. It is a unity of instrumental rationality and value rationality including the balance of interests between the private and the public, governmental power and personal right, ownership and permission, national and international. In the third, fourth, fifth chapters, the legal model of the state intervention is constructed on the basis of Chinese situations such as commercial competition and industrial needs. Foreign experiences of state intervention are learned from and international standards are adopted. In general negative and active interventions are involved in. In the fourth chapter, the direct limitation to the IPR is set according to the balance of private and public interests. In the fifth chapter antimonopoly power is set to restore the market order because of the misuse of the IPR. In the sixth chapter, active interventions mainly of fiscal policy, financial policy and other public policy are set to stimulate innovation. In the last chapter the interventional system is set to make the intervention into reality.