The Legal Protection Of Idea Surrounds The Interest Balance Of Intellectual Property

In general, Ad,Clothing Design,Architecture,Art,Handicrafts,Industrial Design,Music,Performing Art,Publishing,Software,TV and Broadcasting belong to the creative industries. The features of these industries are based on the creative knowledge activities of the link of value. Creativeness itself (such as the Ad scheme,the business scheme,the gist of a story plot in a play)is much more valuable than the expression of a creating process(such as the concrete pictures of clothing design,the Ad design,the literal work of a play, etc). The production of good creativeness can directly decide the existence and development of an enterprise.However, the traditional law of copyrights protects the achievement in intellectual activities by the binary principle of thoughts and expression. If the intellectual activities belong to the expressive category, they can be protected by the law of copyrights. If they belong to the creative category, things are opposite. Besides this, the protection of creativeness by other laws nowadays is also not enough. The lack of legislation results in a common practice of"clone"of the creative ideas of TV shows, advertisement and other aspects in our country. It influents the passion of creators seriously and interferes with the normal competition order of the market. From the angle of balance in benefit, this thesis discusses the ways of protection by law for creativeness in both theories and practice.At first, this article starts with the concept, features and the existing form of creativeness. It analyses the relationship among the creativeness, ideas, contents and expression, and the distinction among the creativeness, works, patent, trademark and business secrets.Secondly, this article proceeds from clearing the interests relationship produced around the protection of creativeness. From the points of jurisprudence and nomology, it demonstrates the legitimation that the benefit of creativity is protected. The author uses the balance principle of intellectual property rights to explore the innovative mechanisms for the protection of a balanced benefit.Thirdly, with the judicial prejudication of the United States, it discusses the methods of property rights and non-property rights to the protection of creativeness, including express contract, implied contract, quasi-contract, competition law and the protection methods of property rights. It also does a comparative analysis of these methods using the benefit balance principle of intellectual property. And it gets a conclusion that the property rights protection of creativeness, especially the protection mode of special rights is the best approach to the legal protection of creativity.Finally, on the basis of the related cases that creativeness can be protected by the ways of property rights in the jurisprudence of the United States and refers to the exsiting law of the copyrights and the relevant provisions of other intellectual property law, this thesis conducts a preliminary design of the rights of creativeness by both the rights granted and the rights to restrict from the perspective of the balance of interests.