Zhao Xu, Research And Education Institute Inc (USA); E-mail:xuzhao088@sina.com
[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
IT IS THE INEVITABLE REFLECTION OF THE IDEA OF NATURAL RIGHTS IN THE FIELD OF INTELLECTUAI PROPERTY
The thought of natural rights is also called the theory of intellectual property natural law, or the theory of labor property rights, or the theory of moral worth enjoying. Locke, the master of this thought, has a very incisive discussion on this. Locke believes that "everyone has the ownership of the body. Since people have the ownership of their own body, the work that his body is engaged in and the work that his hands are engaged in belongs to him. So as long as he takes anything out of the state that nature provides and that thing is in, he has already mixed in his labor, mixed in some of his own things, and made it his property... Since labor is the indisputable property of the laborer, there is no right to this gain except for him, at least in the case of leaving enough equally good things for others to share.[19]
While Locke discusses that the ownership of the property belongs to the laborer of the property, he especially emphasizes that when the laborer obtains the property, at least he leaves enough good things for others to share, which is the precondition of the establishment of the labor property right. That is to say, if the laborer combines his own hands with the common property, the property created will belong to the laborer. That is to say, the laborer can legally obtain the property right, but at the same time, he must leave enough and good resources for others. This is also an important condition for Locke to expound the labor theory of property rights and to solve the contradiction between the individual property rights of workers and the common property of the public. At the same time, Locke also put forward the idea of sacred property rights. In his view, since an individual enjoys absolute rights in the outcome of his work, no one can derogate from his ownership by imposing burdens unless he agrees.[20]
As far as intellectual property rights are concerned, workers should have the ownership of their intellectual achievements after they have paid their intellectual work, but they should have certain conditions, that is, they should not affect the right and freedom of the public to acquire and use knowledge. Another senior scholar, Wendy Gordon, explained her understanding of Locke's preconditions. She believed that "creators should have property rights in their intellectual products, only if this grant of property rights does not harm other people's equal creativity or equal use of the prior knowledge community (matrix) and scientific heritage"
On this basis, Gordon made a further elaboration on Locke's preconditions.
First, preconditions are not allowed to be structured simply because property rights are effective for social welfare. If intellectual property is granted only for the consideration of utility or social welfare, it is likely to greatly reduce the ability of the third party to use the intellectual property, which will lead to the inequality in the exercise of the shared property. In this sense... If the preconditions are met, the structure of property rights is permitted, regardless of whether a non property status will better contribute to the social goal of injection efficiency. In Gordon's view, Locke's precondition is a dominant criterion, according to which intellectual property rights are justified as long as they meet this precondition.
Secondly, preconditions only provide limited protection for public members, and people's shared rights will not be adversely affected by the property rights of creators, so these people have no reason to complain. People's equal rights and the right to use the common property should also be restricted. This restriction comes from Locke's preconditions. Specifically, as long as the creator's intellectual property rights do not adversely affect other people, other people's rights to the common property shall not exclude the creator's intellectual property rights. Locke preconditions not only restrict the creator's intellectual property rights, but also set a proper range for the public's common rights. The dual nature of restrictions makes Locke preconditions more reasonable and more attractive.
Third, the election conditions only regard certain harm as related to the purpose of type property right, which protects property from reducing the common property. That is to say, as long as intellectual property rights increase the common property, even if it does cause damage to others, such damage is also allowed by the preconditions, or even required by the preconditions. In fact, it ensures the increase of the Commons. According to Gordon, the maintenance and expansion of the intellectual commons are required by Locke's preconditions. As long as the intellectual property can maintain or expand the intellectual commons, the intellectual property has legitimacy.
Although Gordon regards Locke's preconditions as the standard to measure whether the grant of intellectual property is legitimate, it is also the theoretical basis for intellectual property restrictions. In fact, any creator's creative activities need to use public resources and public intellectual achievements. These public resources are the common wealth of human beings. Everyone can use them automatically, but they can't be taken as their own exclusive rights. Otherwise, social public resources will continue to dry up, public interests and personal interests will be out of balance, and ultimately hinder human creation. Building activities hinder social progress.
According to Locke's preconditions, the creator has intellectual property rights in intellectual products, if and only if he leaves enough and equally good resources for others to share. The premise of intellectual property is that intellectual resources are shared by all people, and the right of public co ownership is obviously prior to the intellectual property of creators. Therefore, when there is a conflict between the two, Locke preconditions provide us with a basic principle to solve the conflict, public co ownership is prior, and creators' knowledge is later. [21]
It can be seen from Locke's labor theory of property rights that intellectual property is not only a natural right, but also a right that does not harm the public interest and does not affect the public's access to and use of knowledge. The preconditions advocated by the natural rights theory become the legitimate reasons for the restriction of intellectual property.