| How to protect rights and how to limit them are the everlasting topics of law. For one of natural characters of right is to expand unlimitedly, and the interest existing of others and public are the limitations of absolute rights. So setting up institutions for right borders as well as expanding protection is also one of tasks of law. The old limit system of intellectual property rights have safeguarded the balance between benefits of right holder and public by right ranges,right time limitations, legitimately using, legally licensing, mandatory licensing and so on. The new economic has been influencing and challenging the limitations of IPR. In the circumstance of strengthening protection, the IPR tends to enlarge and come into a tool of the developed states. The unbalance led the right limitations to uselessness in practice even going to pieces. On the experiences of foreign legislatures, the thesis analyses the necessity, feasibility, lack of our limitations of IPR. Especially, the author puts forward three relative suggestions to our law circumstance: the inner perfection of the intellectual property law, the outer perfection by the anti-monopoly law to the abuse of intellectual property right and the use of IP tactics to limit rights extension. The perfection aims at legally exercising rights, effectively restraining the abuse of intellectual property right and better preserving the benefits for public and state. The theme comes from one article of my teacher, which sets its foothold on comparison among different law departments, focuses on questions of cross-law departments. The thesis thinks over once again the advantages and disadvantages about expanding IPR in the new economic environment and expresses its anxiety on the prospect of developing countries' knowledge and technical industries. The thesis is made up of three parts, its investigative thread in detail as follows: The first part defines discusses the influences and challenges to the IPR's limitations from the new economic. To begin with, it argues the notion and characteristics of the new economic; In addition, it emphasizes the influences and challenges, which result from the new economic. By analyzing the changes of IPR's notion, nature, attributes, functions and anti-limitations, it draws a conclusion on perfecting the rules of IPR's limitations. Finally, it presents two decisive factors to limit effects: the level of technology and different position between the developed states and the developing states. The second part discusses active rules and practices of IPR's limitations. Firstly, it systematically presents juristic foundations and characters of the IPR' s limitations, in order to explain their necessity; Secondly, it assorts the IPR's limitations according to economic running, introducing per-limit's root; Thirdly, it illustrates our actual rules and prescribes their shortcomings .This part bases up discussion on perfecting limitations in new economic era. The third part prescribes how to perfect our rules, which is the emphasis of the whole thesis. Insisting on interest calculate and balance, the author boldly tries to rebuild IPR's limitations system from three aspects: Firstly, we should take actively part in and try to lead the international protection, make use of legitimately using, legally licensing, forcibly licensing; Secondly, we should establish anti-monopoly law as soon as possible, in order to regulate right implement and limit the abuse of IPR; Finally, it analyzes how to use IPR tactics to cope with the trend to strengthening protection for our benefits. Conclusion: Strengthening or lessening rights lies in a procedure of dynamic equation. The limitations of IPR should be mended, restituted and innovated, along with technical advance and market perfection. |
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