On The Doctrine Of Liability Fixation Of Intellectual Property Infringement

With the globalization of knowledge economy,cases of IPR are increasing rapidly.To deal with the cases of intellectual property rights,the most important task is to identify the criterion of liability,which leads to aggressive disputes both in theoretical circles and in judicial practice.In my opinion,the primary reason for those disputes is that scholars have different understanding in some basic concepts that relate to infringement of intellectual property rights.Taking methods of theoretical analysis and legal comparison,this dissertation analyzes the application of criterion of fault liability and criterion of no-fault liability,inspects the related legislations of TRIPS,Roman Law systems and Anglo-American Law systems,and draws a conclusion that we should insist on criterion of fault liability while dealing with cases of IPR infringement.This dissertation consists of five chapters:ChapterⅠ:Simply describe controversy concerned with the criterion of liability in IPR.Through a case in judicial practice show the defects of applying criterion of no-fault liability.Furthermore,point out misunderstanding of theories exists in persons who insist on criterion of no-fault liability.ChapterⅡ:Firstly,analysis the concept of tort and infringement by comparing legislation in Common Law and Roman Law,and suggest we adopt the definition of infringement in IPR.That is to say,confirming infringement in IPR has no relation with fault and damages;secondly,analysis the criterion of liability,then point out criterion of liability is only applied to damages;finally,by comparing claims against property rights and claims against IPR,and analyzing the possibility and necessity of establishing claims against IPR,this article advises we should admit claims against IPR.ChapterⅢ:Separately inspects the TRIPS and the related legislations of Roman Law systems of continental Europe & Anglo-American Law systems. Then,draw a conclusion that the legislation of intellectual property rights in TRIPS,Roman Law system & Anglo-American Law system has adopted the criterion of fault liability to the tortious liability.Scholars who insist on criterion of no-fault liability have confused recovery of unjust profits and claims against damages.ChapterⅣ:Introduce and analysis several kinds of criterion of liability in IPR.Then,on the one hand,explain why we shouldn't adopt the criterion of no-fault liability by further;on the other hand,describe the definition of fault and how to distinguish fault,so as to take legal analysis.ChapterⅤ:Analyze the criterion of liability of IPR in Chinese legislation, including the《Patent law》,the《Copyright Law》and the《Trademark law》. Then,put forward the legislative proposals as following:the first is establishing the legislative system of claims against IPR;the second is perfecting the legislative system of civil liability;the third is Proposals for perfecting the《Patent law》and the《Copyright Law》.