Research On The Public Domain In Intellectual Property Law

Till now, there are no system researches on the "public domain" in intellectual property law, although this word could ever seen every where, such as in the international treaties, legislations, theories, and prejudications. Thus, this paper will do further researches on the public domain category in the basis theory of intellectual property law, from the way of normative jurisprudence, positive jurisprudence and comparative jurisprudence. This paper defines the public domain as "the common property owned by different public on the basis of different facts", that in nature is the common property .Further, According to the demand of the development of the intellectual property law and the public domain 's balance nature , the author try to characterized the "public "as all the people in the world , the people whose nation is in the same international treaty ,countries , special tribe, folk, community and family and so on .From this basis ,the author out that we could no longer thought that the public domain "is owned by all the people and could not be protect by intellectual property law ".Based on the analysis mentioned above, this paper made the further study on the logic basis, attributes, modalities and the relationship between the private domain of the public domain, the author draw the conclusion that the we should treat it as the basic category in the intellectual property law. It makes great contribution on the construction of the intellectual property system .However, nowadays the public domain encroach significantly, thus deduces the intellectual property loosing it's basis for the balance between the oblige and the public. And this demands us using the public domain to resume the balance of the intellectual property. Finally, this paper gives the suggestions on how to use the public domain theory to construct the Chinese national intellectual property strategy.