Zhao Xu, Pacific Research And Education Institute Inc (USA), IP Researcher, xuzhao088@sina.com
[Abstract]
In addition to the traditional human rights such as the right to life, freedom, freedom from slavery, freedom from torture, equality, and the right to seek relief, human beings should also have economic, cultural and social rights, such as the right to education, social security, the right to choose occupation and work, the degree of life they need, their participation in social and cultural life, and the society brought about by technology and culture. Progress, the right to share the benefits of human development. This right is not limited to one country, but also a basic human right of all mankind.
Intellectual property rights such as science and technology, culture and technology are not the "privileges" of developed countries, but the crystallization of the common wisdom of all mankind and a basic human right shared by all mankind.
[Keywords] Intellectual Property, Participation, Share, Human Rights
OVERVIEW OF INTECTUAL PROPERTY AND HUMAN RIGHTS
Human rights and intellectual property, which were once unfamiliar legal departments, are gradually becoming extremely close partners. For decades, they have basically developed independently of each other. People seem to think that human rights and intellectual property are two unrelated fields of rights and intellectual property. Right does not belong to human rights, human rights should be higher than intellectual property rights. Some intellectual property experts in our country hold this view.They think: to pay attention to "whether intellectual property belongs to human rights". We should first solve "what is human rights", and "whether human rights are independent and self-sufficient legal rights"[1]. They further pointed out that human rights are a relatively open "collection of rights", so in English they are always expressed in the plural (human rights); human rights first mark an angle, which points to the subject of obligation as the representative of the power authority; human rights are related to the level of moral personality, even if it is purely the protection of property rights, it must also be related to human dignity and freedom; Human rights are a kind of "public rights" shared by all people; intellectual property does not belong to human rights, but the protection of intellectual property also needs to be based on human rights claims. The international community recognizes that it seems impossible to define human rights. But most people also recognize that human rights refer to the universal, basic and inalienable rights necessary for human survival as long as they are the rights that human beings should have. Therefore, human rights are characterized by equality, personality and morality[2]. Obviously, intellectual property does not have these attributes, and is determined by the characteristics of intellectual property. The protection of intellectual property should take human rights as priority.
First, As far as the subject enjoying the right is concerned, human rights are enjoyed by natural persons and are universal. On the one hand, human rights are the rights that everyone is born to enjoy, and they are not different due to any identity factors. Even for criminals, the enjoyment of their human rights should not be arbitrarily restricted; On the other hand, institutions and organizations do not enjoy human rights, even community human rights, are based on the community.
For all individuals. The difference is that intellectual property is an identity privilege. It is not according to the current law, organizations such as legal persons can enjoy intellectual property rights. Moreover, intellectual property rights gradually become the assets of an enterprise and the shares reflecting the market competitiveness of a company.
Second, The importance of human rights to human beings lies in that it is a moral right, and moral rights are supreme; intellectual property rights, as property rights, is a commercial interest. The position of commercial interest is that it should obey moral rights.
According to the report of the United Nations High Commissioner for human rights, intellectual property rights are limited commercial rights, and they tend to have economic returns in essence; the goal of promoting respect for human rights is at most reflected in the second consideration (of intellectual property law). Thus, as the who points out, the commercial motivation of intellectual property means that research in the field of medicine is first directed at "profitable" diseases. This is contrary to the goal of moral human rights.
Third, Human rights are purposive rights, while intellectual property rights are instrumental. The instrumental right should be subordinated to other rights as its purpose, and finally to human rights. Moreover, the purpose of human rights is ultimate, on which there is no other priority.
As far as intellectual property rights are concerned, there is such a chain of right levels. Although intellectual property is regarded as property right, it is only a symbol, qualification, or even a virtual one to obtain property right after all. To obtain real property right, intellectual property owners need to go through a complex process of realization. Therefore, intellectual property is only a tool of property (right). And property right is not the purpose of human rights. For human rights, property (right) is a tool to realize other moral rights. For example, property (right) can be exchanged for the full realization of health, education, scientific and technological progress and other rights. Thus, intellectual property is even a tool.
Fourth, Human rights are connected with the human body, which are naturally owned, non transferable, inalienable and have no time limit due to birth; while intellectual property rights are granted due to events, which are temporal and can be transferred and deprived.
However, In recent years, a series of international standard activities have begun to depict the intersection of intellectual property and human rights that have not been paid attention to before.[3] The constitution of our country stipulates that citizens have the freedom to conduct scientific research, literary and artistic creation and other cultural activities. The State encourages and helps citizens engaged in education, science and technology, literature and art and other cultural undertakings in their creative work beneficial to the people.
Obviously, China has made clear provisions on the high consistency of intellectual property rights and human rights in the form of fundamental laws, which not only stipulates that intellectual workers have the right to carry out scientific research, literary creation and other cultural activities, but also stipulates that the state gives full support to these intellectual work, and also raises this intellectual creation activity to the fundamental right of citizens, that is, people Right. The human rights orientation of intellectual property further improves the legal status of intellectual property, and truly embodies the equality of private rights of intellectual property. This kind of equality of private right not only can anyone get the right of creative labor achievement at home, but also can give full and equal affirmation and protection to the intellectual labor achievement of all nationalities and races at the international level.
For the first time, Article 27 of the Universal Declaration of human rights clearly defines the protection of the material and spiritual rights of authors to literary, artistic and scientific works created by them as a basic human right, and requires Member States to recognize, observe and guarantee them. At that time, whether to create intellectual workers.Activities recognized as human rights have gone through extremely complex struggles. One of the most influential is Mr. Campos Ortiz, he pointed out incisively that "the declaration has confirmed the rights of workers, families, mothers and children. If the Commission wants to avoid omission, its individual rights as an intellectual worker, scientific worker or author must be recognized. " He further stressed that the Mexican delegation believed that: at present, we have entered such an era, without the contribution of human intellectual activities, society can not develop, so far, there is no article on the protection of the rights of intellectual workers. Perhaps opponents will argue that the recognition of such rights will only involve a special group of people, but isn't it the essence of property rights and the right to employ workers? It can also be said that the general rights of workers also fully include intellectual workers.[4]
In succession, other major international human rights conventions have given intellectual property rights the content and significance of human rights. The international community has also basically recognized the right of creators to their intellectual achievements and the right of the public to share the benefits of their intellectual achievements as a human right.
In success, other major international human rights conventions have given intellectual property rights the content and significance of human rights. The international community has also basically recognized the right of creators to their intellectual achievements and the right of the public to share the benefits of their intellectual achievements as a human right.
In fact, the human rights thought of intellectual property does not start from the declaration of human rights. In the Renaissance, some enlightenment thinkers made a more profound and systematic argument. Locke, a representative of the theory of natural rights, holds that "The right to private property is a natural right of human beings, and a natural human right. No one can violate it. Human beings are born free, equal and independent. In the state of nature, man is the absolute master of himself and his property. People are born with a right to keep all his possessions, that is, his life, freedom and property.Damage and infringement. "[5]
Rousseau, another representative of the enlightenment, believed that "man is born free and equal. The state is only an agreement of free people's freedom, which is the product of human nature. The first rule of human nature is to maintain its own survival. The first concern of human nature is to care for itself. Moreover, once a person reaches a reasonable age and can judge the appropriate way of his own survival, he will become his master from then on."[6]
According to Professor Wu, from Locke to Rousseau, property rights are put into the theoretical framework of natural human rights, and they are endowed with an important position of independence and core. The main characteristics of this thought are:[7]
First, It is based on the abstract theory of human nature, which is the embodiment of human nature. Therefore, human rights are regarded as universal rights beyond the times and society, which are eternal and inalienable rights.
Second, it emphasizes individual rights and opposes individuals to society and the state.
Third, it regards property rights as the core content of natural human rights and emphasizes the protection of personal interests.
This article does not take it for granted that Enlightenment thinkers
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