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On The Rationality Of The Limitation Of Intellectual Property Rights(part one)

Zhao,Xu. Pacific Research And Education Institute Inc (USA);

[Abstract] theoretical basis of intellectual property rights restrictions Right is the interest protected by law, that is, the freedom defined by law. If people exercise beyond their borders, they will not only damage the rights and freedoms of others, but also their own. Rights and restrictions on rights always go hand in hand. Intellectual property is not only a private right, but also a new type of civil right. It also needs to follow the basic operation law of rights.

[Key words] IP Rights Restriction Rationality Interpretation


In essence, the exercise of rights is consistent with the limitation of rights. As for the limitation of rights, there are basically two kinds of authoritative theories in the field of law, namely external theory and internal theory. The representative of the external theory, German scholar Cohen, pointed out that: right is an inherent matter existing before the state and the law. Therefore, the scope of right reflected by the inherent nature is the right boundary. The state law can set restrictions outside the right, and the right restriction means two things - right and restriction. The so-called right in its elf refers to the right in its original meaning, which is unrestricted; then there is a restricted right, which can be called the restricted right as limited, so it is called the external theory. Generally speaking, the right should be limited, but the right itself can exist in an unrestricted state. There is no inevitable relationship between the restriction and the right. Only when one person's rights are required to live in harmony with the rights or public interests of others, can this connection be highlighted. [1]

As far as the limitation of intellectual property rights is concerned, its essential meaning is to restrict the exclusive and monopolistic rights of intellectual property rights, so as to achieve the balance of public interest and personal interest. Its ultimate purpose is to provide institutional guarantee for the public to approach, acquire and share knowledge. It is also the basic means and method to balance private interests and public interests. However, scholars have not reached a consensus on the meaning of intellectual property rights restrictions, both academically and methodologically.

Mr. Zheng Chengsi, an intellectual property expert in China, has a better understanding of this issue. He believes that intellectual property restrictions refer to some acts that should have infringed upon the rights of intellectual property owners, but they are no longer infringements because they are regarded as exceptions by law. In some countries, they are regarded as exceptions to the acts controlled by exclusive rights. The limitation of the regional effect of property rights and the limitation of the protection period can be regarded as the limitation of intellectual property rights, but the part that does not belong to the protection of intellectual property rights is not regarded as the limitation of intellectual property rights. [2]


The exercise of any right has certain boundaries, and there is no unrestricted right. Generally speaking, the restriction of rights is to further reduce the rights that have been legally obtained. Its precondition is that there must be legal and effective rights, otherwise the restriction of rights will be impossible. The boundary of rights refers to the boundary and scope of the exercise of rights enjoyed by the oblige. It generally does not involve the impairment of existing rights, but only requires the oblige to exercise rights within the legal boundary and scope. To further explain this problem, we can use the philosopher John R. Searle's explanation of the nature of rules to demonstrate the difference between the limitation of rights and the limit of rights.

According to John Seal, any rule belongs to either regulatory rules or constructive rules. The so-called controlling rules refer to the behaviors that the rules adjust to exist or exist independently, for example, the etiquette rules adjust to the relationships between people that exist independently in advance. And constitutive rules are not only adjusting the behaviors they regulate, but also creating or defining new behaviors or activities, such as football or chess, which can be said to be constructed by following the relevant rules of the game. What regulatory rules adjust is the behavior or activity that is logically independent of the rule, while constitutive rules are the behavior or activity that constructs (and adjusts) the rule logically.[3]

Based on the above understanding, the right boundary belongs to the constitutive rule. The limitation of rights belongs to the control rule, that is, the adjustment of existing rights, rather than the creation of new rules. Therefore, the limitation of intellectual property rights has the following connotations:

First, as a basic legal system, the intellectual property rights restriction has its core function to adjust the balance between the exclusive rights that the intellectual property owners have obtained and the social public interests, so that the public will not be affected by the creative activities affect their freedom and right to acquire knowledge and information.

Secondly, the content of intellectual property right restriction is not the exclusive right of intellectual property, but because of the right

In the process of exercising their rights, they abuse their monopoly rights and infringe upon the freedom of the public to acquire knowledge and re create. Therefore, the law must control this behavior.

Third, the object of intellectual property rights restriction is the rights that have been obtained legally. We should further reduce the existing intellectual property rights and give the reduced rights to the public in order to balance the private rights and the public rights. Therefore, reognalty, timeliness and the limitation of objects are not the restrictions of intellectual property rights, but only the characteristics of acquired intellectual property or the conditions for its legal and effective existence.

Therefore, this paper holds that the limitation of intellectual property rights refers to the further reduction of the legal and effective intellectual property rights in the process of their exercise and utilization, so as to achieve a balance between public and private rights.

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