Study On The Law Application Of Intellectual Property Rights’ Ontology Relationship

In the traditional view of private international law, the regional character whichdetermines the intellectual property rights are only effective in one country’s area, sothat the fields of intellectual property rights can not have conflict of laws like otherfields of civil rights. But I thinks, the intellectual property rights and related laws canalso have extra-territorial effect. They can’t have conflict of law just because peoplestick to the strict regional restriction. As the intellectual property trade betweennations is getting more and more frequently and the international cooperation is beingstrengthen, many countries abandon the exclusive jurisdiction of intellectual propertyrights gradually, which weaken the strict regional restriction and make countries beginto give more attention to law application of foreign-related intellectual property rights.Therefore, how to develop appropriate conflict rules is so important, which meanssolving the law application of intellectual property rights effectively has realisticmeanings. As the ontology relationship of intellectual property rights is just onecountry’s internal legal relationship, which is more special than the contractrelationship and tort relationship, so this paper will mainly discuss the law applicationof ontology relationship. It puts forward some suggestions for perfecting the conflictrules of ontology relationship in combination with theoretical analysis and currentlegislative regulations of China. The full text is divided into four parts:Part I is mainly an overview of conflict of law of intellectual property rights’ontology relationship. First, it defines the connotation of the intellectual propertyrights’ ontology relationship. Then, this part analyses the reansons that blockintellectual property rights from having conflict of law. The main reason why fields ofintellectual property rights can not have conflict of law is countries would not like toadmit the extra-territorial effect of them. However, the regional character is not theunique character of intellectual property rights, because all the rights have regionalrestriction in common. Regulations about the established conditions of intellectualproperty rights in each country which are not the same is the primary reason. But withthe regional character getting weaker and weaker, they have gained someextra-territorial effect, which brings conflict of law to them.Part II focus on the solutions of conflict of law, which include direct and indirect adjusting method. In this part, the author proposes the “hidden” conflict rulesinnovatively. Because in the uniform substantive conventions of intellectual propertyrights, there are also some conflict rules about the law application, which are notspecific applicable rules but related applicable legal principles that extended from theconventions above. As these conflict rules are not inclued in provisions of conflict oflaws, so it is more appropriate to calle them the “hidden”conflict rules than“dominant” conflict norms. The author quotes a large amount of foreign scholars’views and courts’ case-law to analyse the law application of intellectual propertyrights, and thinks the Article14and Article5.2of the Berne Convention do putforward the applicable law, which all point to the “lex protectionis”.Part III is the most important part of this paper, that is the law application of theintellectual property rights’ ontology relationship. First, it discusses the effect ofexclusive character on the law application. When they are as the general civil rights,the “lex loci actus” shall be applied; when they are as the proprietary rights, the “lexprotectionis” shall be applied. Then, it defines the connotation of ontologyrelationship of intellectual property rights. Although intellectual property rights areintangible property rights, the general property’s applicable laws can not apply to theontology relationship. Therefore, the author puts forward the applicable rules toontology relationship by “segmentation theory” method, which means apply differentconflict rules to different aspects of ontology relationship. At the same time, there aremany types of intellectual property rights, so it also should make “division” in the lawapplication.The final part is mainly some thoughts of perfecting the applicable rules ofontology relationship of intellectual property rights of China. First, it enumeratesrelated legislative regulations in the “Civil Code(Draft)” and the latest “the Law ofThe People’s Republic of China on the Law Applicable to Foreign-related CivilRelations”(hereafter“Law on the Application of Laws”) and analyses their advantagesand disadvantages. Then, in view of the insufficiency of the above legislativeregulations, the author puts forward suggestions for improvement in combination withthe theoretical analysis and China’s actual situation, expecting China’s applicablerules about intellectual property rights’ ontology relationship to be more and morecomprehensive and complete.