top of page
  • Writer's picturebing chen

On The Rationality Of The Limitation Of Intellectual Property Rights(Part two)

Zhao Xu, 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


Intellectual property law not only encourages people to create intellectual achievements and endows them with certain time and regional exclusive rights, but also limits their monopoly rights to achieve the balance of public interests and private interests. This paper holds that the rationality of the limitation of intellectual property rights can be explained and understood from the following aspects:


The pursuit of fairness and justice has never stopped, and with the progress of the times and the development of society, the pace of this pursuit will be more rapid and crisp. So what is fairness and justice? How does the concept of intellectual property restriction reflect fairness and justice? Philosophers believe that the main problem of justice is the basic structure of society, or more precisely, the distribution of rights and obligations by the main social system, which determines the division of interests generated by social cooperation.[4]

Justice has a face of photos, which is changeable, can take on different shapes at any time, and has a very different face. [5]

According to Democritus of ancient Greece, justice contains two meanings: one is that justice requires people to fulfill their obligations; the other is that injustice requires people to abandon their obligations without fulfilling their obligations; the other is that the power of justice lies in the determination and fearlessness of judgment; on the contrary, the result of injustice is the fear of misfortune. Plato believes that justice exists in the harmonious relationship between various parts of the social organism. If the achievements of each class are devoted to the work of this stage and do not interfere with the work of another class, it is just, that is to say, justice is to do only one's own business and not do others' business. The basic principle of justice is that everyone must carry out a task that suits his nature best in the country. When businessmen, auxiliaries and guardians of the country do their own things in the country without interfering with each other, there will be justice, thus making the country a just country.

John Rawls, an American scholar, believes that justice is the primary value of social system. Just as truth is the primary value of the ideological system, a theory, no matter how refined and concise it is, as long as it is true, must be rejected or amended. Similarly, some laws and systems, no matter how efficient and organized they are, as long as they are unjust, must be reformed or abolished. [6]

Justice is the star that dominates all societies in the center, the center around which the political world revolves, the principle and standard of all things, all actions between people, none of which is not in the name of justice, none of which is not dependent on justice, justice is not the product of law, on the contrary, in all cases where people are easy to contact, law will always But the expression and application of justice.[7]

Justice is constantly regarded as a basic problem related to law in human group life. When people are disappointed in the law, that is to say, in the content or implementation of the law, they will call for justice. People either want the law to be more just, or they will complain that the application of law to a certain citizen in a specific case is contrary to justice. [8]

In fact, the essence of law is not only the representative of justice, but also the embodiment of justice. As ulbil said, when one wants to study the law, one should first know the origin and development of the term jus. What we are talking about now is jus from Just In fact, according to Celsus's clever definition, law is about the art of what is good and fair. When it comes to this kind of art, we may be called priests for granted. The environment in which we cultivate justice and master what is good and fair is the background conditions that make the principle of justice necessary, including the objective justice environment and the subjective justice environment. The objective justice environment requires the existence of a medium degree of allocated resources. Deficient.[9]

In the words of Mr. Hayek, in fact, there are different ideas about what is justice, but this fact does not exclude the possibility that the negative standard for the detection of injustice may be many different (though not all), and the just behavior rule system can meet the objective standard of justice. The pursuit of thinking (just like the pursuit of the ideal of truth) does not presuppose what justice (or truth) is known, but only presupposes that we know what we regard as unjust (or fallacious).[10]

Therefore, justice is first of all a distributive justice, not an exchange justice, and a distributive justice with rights and obligations as its content. Because exchange justice, the justice type associated with the behavior between individuals and individuals can only be exchange justice. The reason lies in that there is no one who gives orders, not to mention a central contributor, in the process of the parties' implementing legal acts. In terms of intellectual property restrictions, to achieve the goal of justice, we must not rely on only the two parties, but also do not need a person who gives orders or a central distributor.

The essence of intellectual right restriction is the distribution and coordination of the rights and interests of intellectual achievements enjoyed by the right holders of intellectual achievements between the users and communicators of the public. It is not only a tool of benefit allocation, but also embodies the values of fairness and justice. The values of distributive justice protect the interests of creators and safeguard the fairness and justice of the public's access to and use of knowledge. They complement each other and have interests. Finally, it realizes the basic values of intellectual property and the value goals of fairness and justice, and adds strength and support to the foundation of intellectual property building.


With the progress of human beings and the development of society, people's values are constantly adjusted in this development. The values of the civil law system with the autonomy of private law as the core are always influenced by both social and economic factors and political factors. The change of its legal principle is one of its manifestations. In the pre capitalist period, the values of civil law are based on obligations. After entering the capitalist period, the values of civil law are based on rights. Since then, civil law has become the law of rights. Civil law is a declaration of rights. In this period, individualism and autonomy have been greatly publicized, and human personality has been greatly developed. At the end of the 19th century and the beginning of the 20th century, people's personality was limited, and the autonomy of will was amended accordingly. From then on, the civil law took the society as the standard and replaced the right as the standard. As an important part of the civil law system, intellectual property law, without exception, is deeply influenced by the trend of thought of civil law. What is social standard?

The essence of social standard is based on the public interest, and on the basis of the balance and coordination of the public interest and the individual interest, the society and the individual get balanced development. Among them, the public interest is the reasonable basis of intellectual property restriction. Under the trend of public interest, intellectual property must be examined by this trend of thought, and the exclusive rights of intellectual property owners must be restricted, so as to promote the overall development of social economy, culture, science and technology. The public can enjoy the common fruits of knowledge progress and prosperity. As stipulated in Article 27 of the United Nations Universal Declaration of human rights, anyone has the right to participate in social and cultural life freely, enjoy art and share scientific progress and the resulting benefits. The establishment of social public interest not only makes it possible and convenient for the public to obtain knowledge and information, but also provides creators with more materials for creating nutrition and wisdom. From the perspective of jurisprudence, a person's human nature has never been treated as a mere means. We can simply think that, for the public interest, we can impose restrictions on behaviors related to others.[11]

BODENHEIMER pointed out that "the concept of public good means an external boundary that can never be transcended in the distribution and exercise of individual rights. The external boundary means that giving a substantive scope to individual rights is a basic condition for promoting public interest."[12]

Hayek, a great master of theoretical law in England, has a unique view on public interest. He believes that the concept of free common welfare or public interest can never be defined as the sum of known specific results, but can only be defined as an abstract order. As a whole, it does not point to any specific target, but only provides the best channel, so that no matter what Each member can use their knowledge for their own purposes[13].

It can be seen that people think that public interest is an absolutely indeterminate concept, its connotation and extension are not clear, but it is opposite to personal interest and is composed of most unspecified personal interests. Intellectual property restrictions are for the benefit of these unspecified majority. Among them, the creator himself is also a member of an unspecified majority of people. When he creates his intellectual achievements, he is also inspired by the thoughts of his predecessors and recreated on the basis of their predecessors' achievements. There is no new intellectual achievements in the world. In this way, the public is not regarded as illegally encroaching on the privileges of the actors in the private field, but creating, maintaining and truly reflecting the existence of necessary public interests through their own actions[14]

Indeed, restrictions on intellectual property rights will benefit any intellectual worker, because they have used and still use others' intellectual achievements as the public. It is because of the existence of such public interests that intellectual achievements are created continuously, and then are replaced by newer intellectual achievements. Intellectual achievements continue between this kind of creation and re creation, and promote the development and progress of the society; at the same time, make the interests of intellectual property owners to be realized.


Intellectual property rights embody both public interests and private interests. There is a dialectical relationship between them. This is due to the duality of intellectual property itself. On the one hand, the production of intellectual achievements can not be separated from the creative work of individual workers, so to speak, without the input of intellectual work, there will be no intellectual achievements; on the other hand, the intellectual achievements of any worker can not be separated from the absorption and reference of the knowledge and information of predecessors. All the new intellectual achievements are based on the enlightenment and Enlightenment of predecessors' thoughts. Therefore, there are always continuity of content and continuity of time between intellectual achievements. As the British scholar Mr. Bernard pointed out, "no science can use a technology for a unique right with a clear conscience".[15]

However, this kind of public interest and private interest are not absolutely in conflict. Mandeville once pointed out that "self love, the universal motive in human nature, can obtain such an orientation. Its efforts to pursue personal interests will also promote the public interest".[16]

According to German scholar Hart mut Maurer, public interests and personal interests are sometimes consistent and sometimes conflict with each other. However, as far as intellectual property is concerned, the personal interests created cannot be separated from the real living environment of the society, the rich materials of the public, and the long-term accumulation of knowledge by the whole human being. This kind of social public resources is the real source of creation for creators, and it is developed with the progress of the times and the development of the society.

Another German scholar has a more original and in-depth understanding of the unity of public and private interests. He believes that "there is an uncertain relationship between public and private interests. The reason is that most people's private interests can form public welfare, then public welfare is composed of private interests, three of which can be upgraded to public welfare. First, the interests of the uncertain majority are determined by the democratic principle of the legislative process. Second, the interests of the uncertain majority constitute the public welfare. Second, the private interests of certain nature (quality), such as private life, property and health, are protected in line with the public welfare because the state has the obligation to exclude risks. Third, democracy can be adopted. The principle of "public welfare" is to form public welfare for some special amount of private interests belonging to a minority.[17]

Although the public interest is the ultimate goal of the intellectual property system, and the intellectual property law of any country will promote the development of social economy, culture, science and technology as the ultimate goal of its legislation, the intellectual achievement is not the object of self survival, but must be through human intellectual labor, and only human beings have this special brain material. Therefore, any intellectual achievement The fruit must be deeply branded with the brand of human intellectual creation. In this respect, creation is the source of intellectual achievements. Without individual creative activities, there can be no rich and colorful intellectual achievements of the society. This shows that the generation of intellectual achievements is inherently private interests. Obviously, the spear shield between the public interests and private interests of intellectual achievements must exist. It is impossible to fundamentally eliminate the conflict between them, only to ease the conflict between them. This is the original intention of the establishment of intellectual property restrictions.

In addition, the restriction of intellectual property rights is not to deny the right of creators to intellectual achievements, but to make corresponding reductions in their rights, so that these rights can be turned into public rights and public interests freely available to the public. Further speaking, the restriction of rights and the confirmation of rights go hand in hand, there is no unrestricted right, and this restriction will be continuously adjusted with the development and progress of society, the purpose of which is to make the contradiction between personal interests and public interests reach a basic alleviation and balance their interests. In 1994, UNESCO pointed out in its declaration on public libraries that freedom, prosperity and development of society and individuals are the basic values of human beings. These values can be realized only when the citizens with culture can exercise their democratic rights and play an active role in society. Effective participation and democratic development depend on good education and free and unrestricted access to knowledge, thought, culture and information. [18]

Therefore, although there are inherent contradictions and frictions between the restriction of intellectual property rights and the protection of public interests, in order to reconcile these contradictions and finally achieve the harmonious development of the two, it is necessary to reduce the interests of intellectual property rights to a certain extent, and confirm that the public can obtain, use and disseminate knowledge and information to provide institutional guarantee, so that their conflicts can be digested in the lowest scope and field. So as to achieve a win-win situation and common development.

13 views0 comments

Recent Posts

See All


bottom of page