The Essence And Intrinsic Conflict Of Intellectual Property System

Along with the development of science and technology, human society is entering a new era of knowledge economy. Intellectual property system has come into the people's daily life more and more deeply. Although it promotes technological development and increases social well-being, the system has also brought many problems. The extent of protection of intellectual property law has attracted widespread attention. The study of the rationality of the system has been aroused. This article analyzes current theories concerning intelligent property system rationality through CoralQQ case. Trying to find out the constraints of these theories and post the essence and intrinsic conflict of intellectual property system and then, make my analysis. This article is concretely divided into three parts.The first part mainly introduced the current theories of intelligent property and its limitations. The current theories of intelligent property include labor-based theory, personality-based theory and economic incentive theory established on a utilitarian philosophy. According to labor-based theory, the creators of the intellectual work pay an a great deal of mental labor. As a result, these creator's labors morally ought to acquire repay. The way of repay is to give them monopoly right which comes from their intellectual work. According to personality-based theory, the personality is justified because of it is an ego expression. Intellectual work is the creation of brain. The thought which load in the intellectual work is the reflection of its creator. So it ought to be given intelligent property. According to economic incentive theory established on a utilitarian philosophy, the given of intelligent property brings a huge encouragement to the creators. It makes them like to throw themselves into the creation of intelligent property and do their best to create more intellectual work for the society. In this way, public can make good use of these intelligent property and promote maximize of social total welfare. Then the whole society will achieve the prosperity and progress. So intelligent property is rational. These three current theories of intelligent property provided important theories to prop up for the system.They give us the excuse of the accusation and the verdict in CoralQQ case. However, a further analysis can show us that there are still many limitations in these theories. We may get a contrary conclusion if we analyze this case and even the whole intelligent property system thoroughly by these theories. The second part continue the discuss put forward by the first part and carry on a theories discussion and analysis. The article analyzes the common essence of these three current theories of intelligent property. From the exterior of intelligent property system, we can find that they all belong to the extension of property theory. Property theory provides convenience to the establishment of intelligent property and make intelligent property system quickly build up. It also makes intelligent property continuously extend and become a certain privilege as monopoly. Meanwhile, the theory of intelligent property also does its special contribution for the development of the property theory. From the inner of intelligent property system, we can discover that each of them has the value orientation of individualism. Then this article inquiry into the object of intelligent property named intellectual work. The production, dissemination and consumption of intellectual work differ from a traditional visible product and have the attribute of quasi-public good. The manufacturer of the intellectual work is generally according to the current knowledge. The produce of a new intellectual work production always absorbed the result of others. It is usually difficult to clearly separate from the current intellectual work. The replication cost of the intellectual work is usually near zero. So the intellectual work has diffusibility. On the consumption, the intellectual work is commonly nonexclusive and nonrival. It can be provided for infinite majority to control and uses in the meantime. Generally speaking, people could not exclude others acquiring the knowledge which was created by themselves. They won't lose the quantity of their knowledge because of imparting them to others. The study of current theories and the attribute of the intellectual work tell us the intrinsic conflict of intellectual property system and provides a groundwork to understanding the rationality of intellectual property system.The third part relies on the conclusion of the second part. The article considers we should understand the rationality of intellectual property system as the right ordained by law. It means the category, right, the factor of acquiring the right and protection term of right etc. of intelligent property must be ordained by statute law. In addition to the special authorization by the legislator, any organization can not establish intelligent property illegally. The legal doctrine of intelligent property is decided by the quasi-public good attribute of intellectual work. See from the production of intellectual work, its characteristic request to harmonize the relationship of freedom and right among different creator. This harmony must be ordained by statute law. Because of the nonexclusive and nonrival of intellectual work, we need the statute law to ordain a series of standards and process to ascertain the subject of the right. We also need to ascertain the boundary and the extension of the intellectual property by means of ordain the right of the creator of intellectual work. The legal doctrine of intelligent property should take the social masses' interests as a basic. This is also decided by the quasi-public good attribute of intellectual work that intelligent property protects. However, because of the legislation oriented by individualism, this system always tend to protect the right of the creator and the investor and ignore the accumulate of the public field and the public interest. So we should re-consider the theories of justice and make a value choice of public policy profoundly. On the justice of the economic system, there are mainly two different doctrines. The one is Nozick's justice in holdings and the other is Rowls'distributive justice. One main characteristic of current theories of intelligent property is that they are the practice of private right-based principle which comes from English-American Legal System. It is based on the justice in holdings. This makes the expanding of intellectual property system and the ignorer of the public responsibility which the nation should participate in. In this instance, Rowls'distributive justice is far more compatible to achieve the balance of the private interest and the public interest.In conclusion, this article analyzes current theories concerning intelligent property system rationality through CoralQQ case and find out their limitation. The article sums up these current theories are the extend of the property theory. They all have the value orientation of individualism. The article also analyzes the quasi-public good attribute of intellectual work. From intrinsic conflict of intellectual property system shown by the two factors, the article considers that we should understand the rationality of intellectual property system as the right ordained by law. Intellectual property system ought to be based on public interest and apply an attitude of distributive justice.