Study On The Overlapping Protection Of Intellectual Property Subject Matter

At present,with the continuous advancement of technology and change of business models,many new types of cases have emerged in judicial practice,posing serious challenges to the existing IPR legal system.In particular,in some cases,the same knowledge product meets the constitutive elements of two or more Intellectual Property subject matter and thus can obtain more than one kind of Intellectual Property protection.This phenomenon has created some problems in judicial practice and caused discussions and debates in academic circles.With the advent of the era of artificial intelligence,the expanding trend of the scope of Intellectual Property subject matter will not change,and this phenomenon will certainly become more frequent.The existing IPR legal system has not yet made a global consideration of this phenomenon and its problems,and the lack of rules has led to the destruction of judicial stability and institutional functions.In this regard,it is necessary to analyze and discuss this phenomenon,the problems that arise from it,and the measures to deal with it.In addition to the introduction and conclusion,the main part of this paper contains four chapters,which comprehensively analyze the current situation,problems,rationality and negative effects of overlapping protection of Intellectual Property subject matter,and discuss the paths,principles and specific rules to curb the negative effects of this phenomenon.Chapter 1,“The Current Situation and Problems of Overlapping protection of Intellectual Property Subject Matter”.This chapter discusses the concept,types,causes and problems of overlapping protection of Intellectual Property subject matter.In this paper,the phenomenon is called "overlapping protection of Intellectual Property subject matter",which is defined as the phenomenon that the same intellectual product constitutes different subject matter and is protected by two or more kinds of Intellectual Property rights,and can be divided into simultaneous and sequential protection of Intellectual Property rights.In terms of types,according to the laws of China,the same knowledge product may constitute a design and a work,a design and a trademark,a work and a trademark,a design,a work and a trademark,a trade secret and a work,a new plant variety and an invention,and an integrated circuit layout design and an invention.As far as China's judicial practice is concerned,the actual occurrence of cases mainly focuses on overlapping protection of designs,works and trademarks,dual protection of works and trademarks and dual protection of trade secrets and works,while other types include dual protection of works and inventions,dual protection of new varieties of plants and inventions and dual protection of integrated circuit layout designs and inventions,but these have not yet produced too much legal impact.Whether overlapping protection of Intellectual Property subject matter is reasonable or not is a matter of disagreement in judicial circles at home and abroad,as well as a debate in academic circles.Based on the need to maintain judicial stability of Intellectual Property rights and to respond to the debate in academic circles,the reasonableness of overlapping protection of Intellectual Property subject matter must be argued.Chapter 2,“The Reasonableness of Overlapping protection of Intellectual Property Subject Matter”.This chapter examines the rational basis of overlapping protection of IP subject matter at both the theoretical and practical levels.On the theoretical level,the overlapping protection of Intellectual Property subject matter is consistent with various doctrines of justification,including labor doctrine,natural rights doctrine,incentive doctrine and distributive justice doctrine,specifically,the overlapping protection is highly consistent with incentive doctrine,and basically consistent with labor doctrine,natural rights doctrine and distributive justice doctrine.At the level of international law,overlapping protection of Intellectual Property subject matter is explicitly or implicitly permitted by various international conventions.In addition to expressly permitting dual protection of works and designs for works of art,other types of overlapping protection are basically implied in various conventions.In the level of extraterritorial law,for works and designs double protection,the EU Design Directive clearly provides that product design can be protected by copyright,the degree of protection,conditions and the level of originality required by the member states to determine.The U.S.Copyright Act provides design protection for utility items under the category of works such as paintings,graphics or sculptures.For dual design and trademark protection,product designs that meet the requirements of distinctiveness and non-functionality may be protected as trademarks under the EU Trademark Directive and the U.S.Lanham Act.For dual protection of works and trademarks,the EU Trademark Directive does not exclude trademarks from protection as works,and the Information Society Copyright Directive allows for overlapping protection of works and other subject matter,theoretically text,graphics,paintings,photographs,audiovisuals,three-dimensional art,music,etc.may be subject to overlapping protection.Many of the types of works protected by the U.S.Copyright Act are capable of constituting elements of what constitutes a trademark under the Lanham Act,and Chapter 13 of the Act explicitly allows for overlapping protection under trademark law,unfair competition law,and copyright law.For overlapping protection of trade secrets and other subject matter,according to the definition of trade secrets in Europe and the United States,it seems that all Intellectual Property subject matter can constitute trade secrets,and it is common in practice to have successive double protection.Chapter 3,“Curbing the Negative Effects of Overlapping protection of Intellectual Property Subject Matter”.This chapter summarizes the negative effects of overlapping protection of Intellectual Property subject matter,analyzes its root causes,and discusses the paths and applicable principles for curbing the negative effects.There is a limit to the reasonableness of overlapping protection of Intellectual Property subject matter,and overlapping protection must be a kind of moderate protection,beyond which two negative effects of institutional conflict and excessive protection will arise.The system conflict is reflected in that the inconsistency of rights attribution rules leads to the conflict of rights between different rights holders;when the rights holders are the same,they can use different rights to circumvent the rules of rights limitation and exception,use different rights to circumvent the rules of rights exhaustion,and use different rights as the basis for claiming rights.Overprotection is reflected in the fact that the same object achieves extension in the scope and duration of rights protection,which undermines the incentive function of various types of Intellectual Property systems and causes limitation to the public domain.The root causes of overlapping protection are,on the one hand,the different purposes of the creation of various IP laws and the lack of integration of overlapping protection in the legislative,judicial and enforcement activities,and,on the other hand,the instrumentalist orientation and ontological orientation of the IP system,which have exacerbated the negative effects of overlapping protection with the strengthening of international integration of the system.In terms of legal nature,overlapping protection belongs to the competing bodies of legal norms,and it is necessary to judge whether it constitutes a competition of exclusion,overlapping or choosing one according to the specific situation.From the perspective of classification,patent rights,design rights and copyright rights are legal creation-type Intellectual Property rights established to make up for the lack of market incentives,while trademark rights and trade secret rights are market complementary Intellectual Property rights established to restore the original commercial reputation and secret management order of the market,and there is a bias of justice and order value between the two.Each type of IPR should have a reasonable complementary relationship with each other,play the role of incentive and management in their respective fields,and avoid excessive incentives and institutional conflicts.The path to curb the negative effects of overlapping protection lies in the use of middle-level operational legal principles,such as the public domain principle,the principle of proportionality,the principle of efficiency and the principle of dignity,to maintain reasonable complementary relationships among various types of Intellectual Property rights.Chapter 4,“Refining the Rules for Overlapping protection of Intellectual Property Subject Matter”.This chapter discusses the improvement of the specific rules of overlapping protection.It is necessary to consider the commonality and specificity of the types of overlapping protection of various IP subject matter,and to formulate special rules and final rules to apply different competing rules.For the dual protection of designs and works,on the one hand,it is necessary to establish and clarify the concept of “useful article” and improve the rule of “separability”,so that the artistic characteristics of utility articles must be conceptually separated from their practical aspects.On the other hand,there is a need to clarify the rules for judging originality and to avoid giving copyright protection to designs with a low degree of originality.For dual protection of design and trademark,product design constituting a threedimensional trademark must satisfy both distinctiveness and non-functionality to avoid creating obstacles to market competition.For the dual protection of work and trademark,when protecting simultaneously,it is necessary to clarify the trademarkability and workability of the title,slogan,sound and other contents of the work,and strictly examine the originality and distinctiveness,and those that meet the requirements can obtain dual protection;when protecting successively,it is necessary to clarify the trademarkability of the work after the expiration of the term,and for the work that is not recognized by the relevant market,it can be protected as a trademark after the expiration of the protection term,and for the work that is widely recognized by the market For works widely recognized by the market,the possibility of obtaining wellknown trademark protection is high,and in principle,it should be prohibited or restricted as trademark protection.The protection of trade secrets and other subject matter is reasonable,and the protection at the same time is not reasonable,and the protection of trade secrets and works and inventions should be avoided.As far as China's Intellectual Property system is concerned,in terms of legislation,it is necessary to coordinate the rules of attribution of rights in various sectoral laws,and on the basis of maintaining the relevant provisions of the Copyright Law,to amend some rules of the Patent Law,so as to give the right holder more options on the attribution of rights;for the dual protection of designs and works,special rules for the protection of practical art works should be established under art works,and the introduction of the concept of“useful article” and “separability” should be introduced.On the judicial side,the rules of limitations and exceptions of various sectoral laws should be reasonably interpreted to facilitate the parties' defense against overlapping protection;the rules of exhaustion of copyright and trademark rights should be clarified,and in principle,international exhaustion should be applied to both works and trademarks to better match the national strategy of building regional economic and trade integration and to promote the free flow of regional commodities,but at the same time,certain restrictions should be attached to protect the legitimate rights of right holders.The review of the basis of the parties' right to claim should be strengthened to maintain the order of protection of various sectoral laws and to avoid the institutional design of specific sectoral laws being hollowed out.In terms of enforcement,the rules for the establishment of IPR enforcement agencies and the rules for enforcement operations should be improved,and the training of professional law enforcement personnel should be strengthened.The conclusion section summarizes the main ideas of the whole paper.It is argued that the phenomenon of overlapping protection of Intellectual Property subject matter will have a greater impact on legislation and judicial practice in the future,and we must be prepared to be able to resist it in the long run.Under the framework of the entire Intellectual Property system,we should improve the rules on the issue of overlapping protection in the legislative,judicial and enforcement aspects,maintain the order of protection in various sectoral laws,and clarify the boundaries of protection for various types of Intellectual Property subject matter,so that the unique value of each type of subject matter can be better realized.By curbing the two types of negative effects,namely institutional conflicts and excessive protection,a more efficient Intellectual Property system can be constructed,providing a better foundation for the rule of law of Intellectual Property for the healthy social and economic development of China.