A Study On Conflicts Of Intellectual Property Rights

With the rapid legal development in china, the discussion of conflicts of intellectual property rights is becoming more and more active in both academic and practitioners' circle. Starting from the concept of conflicts of IPR, the author suggests a different view on the limit of the right and features of its subject-matter. In the authors opinion, the conflicting rights should include the substantial legal right and formal legal right and the right should also broaden its scope to the legitimate benefit. There are intersections and overlaps in the subject-matter of rights. The so-called "subject-matter identity" is essentially the "carrier identity". The author concludes the definition of conflicts of IPR and exposes its essence and features which are different from other right conflicts in the field of law. Since the conflicting phenomenon has different manifestation, the author makes five classifications and illustrates their significance on the base of "right" and "conflict". As to the cause of the conflict, the author proveals its inevitability from the confliction of benefit, the mutuality of right and the limitation of legislation. Then the author discusses conflicts of IPR result from the speciality of IPR, legislation, the administrative enforcing of law, the negative effect of citizen's right and law idea, the new technology revolution and economic development. How to coordinate and avoid conflicts of rights is largely dependent on according to what principles to direct the legislation, administration and judiciary, which are three sectors linked together. The author illustrates thoroughly the benefit balance principle, the benefit measuring principle, protecting the earlier right comparatively principle and the present situation of conflicting and applying these principles, the existing problems, other countries experience and related advice. Finally the author combs the regulation of rights conflicts in Chinese present legislation, analysed its advantage and disadvantage and some suggestions of revision.