Study On The System Of Compulsory Licensing Of Intellectual Property

For one thing, in order to protect the interests of the intellectual property owner, the Intellectual Property Law grants a license of the exclusive right to the owner of the intellectual property; for another, it limits the intellectual property owner’s exercise of the exclusive right, so as to ensure that the public’s demand for intellectual products can be satisfied and to realize the goal of fairness of the Intellectual Property Law. The compulsory licensing system of intellectual property is one of the important restrictive systems of intellectual property. It grants the intellectual property authority the right to directly give the applicants access to intellectual products based on legal conditions and procedures, without the permission of the intellectual property owner. However, the one who has obtained the right to use compulsory license must pay the intellectual property owner. While maintaining the owner’s right to be paid, the system of compulsory licensing guarantees the users’ need for the quantity and mode of using the intellectual products. Its essence lies in balancing two aspects:protecting the private right-intellectual property and maintaining the public’s right to approach the knowledge and information on the basis of intellectual property. This enables the Intellectual Property Law not only to fully ensure the private right of the intellectual property owner, but also give consideration to the public interest, thus promoting the economic and cultural progress of the whole society.By means of jurisprudence probe, legislative investigation and comparative analysis of the compulsory licensing system, the present paper intends to thoroughly and systematically carry out a study on the theoretical basis, causes of issuing the compulsory license, restrictions on compulsory licensing, and procedures of issuing the compulsory license concerning the system of compulsory licensing of intellectual property. At the same time, reflections are made in terms of the compulsory licensing system in China’s current laws, and effective approaches are sought for its improvementThe Introduction part presents the purpose and significance of this topic, research scope, current situations of the research home and abroad, as well as methodology and innovations of the paper.Chapter One A basic theoretical analysis of the compulsory licensing system of intellectual property. It is compulsory to assess the legitimacy of a legal system once it is established. This chapter probes the theoretical basis of the compulsory licensing system of intellectual property from several aspects like jurisprudence, economics of law and theories on protection of human rights, etc.From the perspective of legal analysis, the paper begins with the analysis of the right attribute of intellectual property, and points out that intellectual property is a kind of private right with a distinct attribute of public interest. Then it discusses the relationship between the compulsory licensing system of intellectual property and principles of prohibiting abuse of rights, with the former as the specific system while the latter as guidelines. Principles of prohibiting abuse of rights require that people cannot overstep the legal scope or proper limit when exercising their rights, while the compulsory licensing refers to the consequence when the owner of intellectual property illegally exercises his or her rights by exceeding the limit. Finally, by analyzing the mechanism of balance of interests, it investigates the system rationality and value structure of the compulsory licensing system of intellectual property. A further analysis of the implementation model of balance of interests is conducted.Regarding economics of law, the paper initially analyzes the distinctive characteristics of intellectual products in economics, and then probes the arrangement of property type of intellectual products. It points out that the publicly-owned type is not the ideal one of intellectual products. Only by giving protection as well as restrictions to the private right of intellectual products, can it both encourage the production of intellectual products, and promote the spread and use of knowledge. Next, an analysis of economic rationality of compulsory licensing system is conducted. It argues that the compulsory licensing system cannot only promote the spread and use of knowledge, and reduces transaction costs, but also provide enough incentive for knowledge innovation, thus it is economically legitimate.In terms of theories on human rights, an analysis of human rights attributes of intellectual property is done, taking two aspects regarding human rights of intellectual property into consideration. The first one is that the intellectual property owner enjoys the exclusive right; the second is that others have the right to use the intellectual products. In recent years, such public health crisis has been frequently occurring as AIDS, SARS, bird flu etc., thus causing much debate about which one is more important:the right of life and health or the intellectual property. Based on the disputes, this paper regards the conflict between intellectual property and health right as the cut-in point to study the conflict between intellectual property and human rights. Through the discussion of their conflicts and coordination, the legitimacy of compulsory licensing system of intellectual property is justified.Chapter Two Causes of issuing the compulsory license. This chapter thoroughly investigates six major causes of compulsory licensing. They are addressed as follows:no or no complete implementation, occurrence of emergency in the country, non-commercial public use, demand for correcting anti-competitive behavior, dependency between two patents and need for public interest. It analyzes the reasons of the relevant causes, the law of development and the future trend of development, In addition, by means of comparative analysis of TRIPs agreements and different regulations that state the causes of issuing the compulsory license from different countries, this chapter selects several cases of compulsory licensing in developed and developing countries and analyzes specific applications of causes of compulsory licensing in different countries.Chapter Three Restrictions on compulsory licensing of intellectual property. The compulsory licensing system of intellectual property is a double-edged sword. On the one hand, it protects public interest; on the other hand, it does harm to the intellectual property owner’s interests. It is an important issue to construct the compulsory licensing system of intellectual property with regards how to maintain the balance between the need of public interest and protection of the owner’s interests with the avoidance of overcorrection. This chapter discusses the restrictions on compulsory licensing of intellectual property from three perspectives:scope restrictions and efficacy restrictions on issuing compulsory license, and payment of compulsory licensing costs. The first one is scope restrictions. In order to avoid abuse of compulsory licensing system, the international conventions and laws from different countries have imposed strict restrictions on the objects and contents of the compulsorily licensed intellectual property rights. The second one is the efficacy restrictions. The right to use compulsory licensing is confined as non-exclusive and non-transferable. Additionally, the products produced by compulsory licensing should mainly supply the domestic market. The third one is payment of compulsory licensing costs. At the mean time of depriving the intellectual property owner of his or her licensing rights, the compulsory licensing system maintains his or her right to get paid. Therefore, the one who has got the implementation right of compulsory licensing must pay the costs of compulsory license. This chapter is an in-depth research concerning such issues as how to determine the standard of compulsory licensing costs, factors involved in determining the costs and the calculating methods of costs.Chapter Four The procedures for issuance of compulsory licensing. A sound law, if implemented in a dogmatic and dictatorial procedure, can never receive favorable effects, while an imperfect law carried out in a sound procedure will have less harmful effects than it should have had. Therefore, the importance of procedures shall never be neglected. Taking compulsory licensing of patent as the main research subject, this chapter, by means of comparative analysis, makes a thorough research on the application, examination and decision making of compulsory licensing of intellectual property and on every step concerning the examination and decision making of terminating a compulsory licensing request.Chapter Five Thoughts on improving China’s compulsory licensing system of intellectual property. Based on comparative analysis and current situations, this chapter proposes some suggestions on establishing or improving relevant compulsory licensing systems. As far as patent compulsory licensing is concerned, this chapter, in view of the current situation that our country has already had a relatively complete patent compulsory licensing system but no concrete practice, analyzes its reasons, points out the existing defects and makes suggestions on improvement. With regard to the compulsory licensing of copyright, the necessity and feasibility of establishing compulsory licensing system which is now missing are demonstrated, and constructive suggestions are given. With reference to compulsory licensing of other intellectual property, emphasis is attached to the practical construction of compulsory licensing system of technical secret right, and advice is made on improving our current compulsory licensing of interchange layout design right and new plant species right. Furthermore, this chapter makes a tentative study on the possibility of establishing a unified compulsory licensing system of intellectual property and the possibility of implementing compulsory licensing in judicial proceedings.Conclusion This part mainly focuses on summarizing the conception, structure and the viewpoints.