The Commercialization Of The Personality Right

In civil code compiling boom, many scholars advocated as the personality right of special legislation, set up perfect unity of personality right law, based on China’s current does not enter into a relevant laws and regulations for personality right system specification, lead to this section discusses legal issues. Among them, the commercialization of personality right problem increasingly highlighted with the market economy development, the author was based on the status quo hope systematically expounded on the problem, the problem of some traditional theories of personality right is difficult to explain. The text is divided into three parts:The first part for the formation of personality right commercialization and analysis. First of all, from the United States and Germany about the legislative model of commercialization of personality right, personality right theory are applicable in the United States and Germany unified theory of personality right. Property interest in the United States is the right of privacy from the right of privacy, rise to form the public power, with the spirit of the privacy protection of personality interests, open personality of protection the right of property interest, complementary pattern, two rights adjustment of commercialization of personality right. Germany is advocated the personality right is divided into two parts, one part to protect the interests of the spirit, the other part to protect the interests of the property, together they constitute a personality right. The second is the right nature of commercialization of personality right and theoretical basis for analysis. About the nature of right of commercialization of personality right, the mainstream view is property rights, new type of personality right, intellectual property and commercial personality right, the author said more agree with is a new type of personality right. Commercialization of personality right has many attributes of property rights, and intellectual property issues, but its essence remains is personality right, is just a specific personality right derived property interest. About the theoretical basis of commercialization of personality right, the mainstream view is labor theory, forbid unjust enrichment theory, consumer protection theory, utilitarian theory and property rights theory, personality is more agree with the author’s personality theory of property rights. Theoretical basis of commercialization of personality right is in the commercialization of personality right is the holder of the work, also is not the commercialization of personality right in order to the best interest of the society, but rather in commercialization of personality right is a reflection of the free will and dignity of the personality.The second part is practical and for the commercialization of personality right protection. In terms of applicable of commercialization of personality right. First of all, the main body of commercialization of personality right for all natural person, a public figure only enjoy the view of commercialization of personality right is inappropriate. Second, the object of commercialization of personality right including the name, image, sound and other personality factors. On the right of name, alias, nickname or holder of the net with a two-way connection for its protection, if the obligee and the public figures zhangs, should distinguish to avoid misunderstanding others won’t infringe on the right of name of others. On the image rights, as long as it is with can recognize the image of the part, you can get like image rights protection. On the voice, although not as an independent personality right for specific provision, but the voice of the unauthorized use of the right holder or if others deliberately imitates the sound of the obligee for commercial activities, still belong to the infringement of the right holder of personality right. Finally, the holder is a part of the personality right can be licenses another person to use, and the personality right of property interest can be succeeded by his successor. Some part of his personality right holder can not only through the conventions of licenses another person to use, can even exclusive rights to license to others. In addition, in order to protect the deceased’s personality right, should be the interests of the personality right of property inheritance system, by its heir to inherit the personality right of property interest, as well as actively using the inheritance of the personality right of property interest license, can also be any property damage claims against the infringer inherited property interests are violated.In the aspect of legal protection of commercialization of personality right. First of all, the commercialization of personality right should be protected by means of tort liability and unjust enrichment. Through with tort liability protection method is given priority to, the protection of the unjust enrichment method is complementary of commercialization of personality right protection system is bound to protect more than just by tort liability, the commercialization of personality right protection of the parties is also more comprehensive. Second, to establish the property damage compensation system, referring to the methods of damages of property rights are the specific property losses, the proper authorization remuneration, deprived of three alternative ways to calculate profit. Finally, in the protection of commercialization of personality right at the same time, also want to limit the use of commercialization of personality right. Commercialization of personality right use of the limit of disgraceful consideration including personality of autonomy, and the existing protection period. Although autonomy personality refers to the personality right commercialization is mainly based on the result of voluntary choice, however, as the changes of the subjective and objective conditions, the license may turn into restrictions on the holder of the personality development, obligee withdraw the license rights granted in this case, is also in order to maintain the interests of the licensor’s personality autonomy needs. Refers to a disgraceful consideration even if the holder of the commercialization of personality right is the meaning of autonomy, but the commercialization process and results of disgraceful consideration must also conform to the rules. Finally, although the commercialization of personality right protection period are not uniformly stipulated in many countries, but what is clear is that the personality right of property interest protection period must be the existence of limit, this is the balance of personal interests and social interests.The third part is the present situation and the perfect of commercialization of personality right in our country. China’s current legislative situation of commercialization of personality right is in the tort liability law article 20 sides acknowledged the personality right has the property interest, then allow the licensing and banned the personality right of personality right transfer, and finally, our country is not about the dead personality right of property interest protection system. The causes of deficiency of legislation is insist on the traditional theory of personality right and rely on separate protected mode of tort liability. Although in the tort liability law article 20 to admit that the personality right has the property interest, but still in the lawmaking of personality right is based on the traditional personality right theory, emphasizes the specificity and spiritual interests of personality right protection, not to emphasize property interest, less about the relevant provisions of the personality right of property interest inherited. Although about the commercialization of personality right in China and there is no clear stipulation, but such cases have already appeared in the judicial status quo, such as more famous is about name and portrait of lu xun’s commercial use, and shaoxing king jewelry &gold company infringement of lu xun’s image rights, yuan longping yuan longping high-tech agricultural co., LTD., to use its name as their company name and so on.About the improvement of the commercialization of personality right system in our country in the future, the author thinks that our country should choose the German model. Because of China’s legal system belongs to the traditional continental law system. If forced to separate personality right of property interest rise to public rights, will greatly impact the basic attributes of personality right in our country, makes a lot of problems involving personality right should be because the right to open the new concept to produce fundamental change, the second is because the specificity of personality right shall not be divided. Countermeasures for our country should adopt the legislation, the author thinks that, in the German model on the basis of combining with the existing legal system of our country, the commercialization of personality right protection system. First, we should clear personality right of property interest and recognition of the dead personality right of inheritance, second, should increase the undeserved benefit protection method, third, perfect the property damage compensation calculation method.