On January 12, the the 9th China IP International Annual Forum and 2019 Annual Conference of In-House IP Managers in China hosted by China IP magazine was held in Beijing. At the Forum of China IP Management Trend, Jiang Danming, Executive Vice President of Chofn Intellectual Property and Dean of Chofn Intellectual Property Institute, gave a speech on the relationship between Intellectual Property Law (IP Law)and Civil Code as well as whetherIntellectual Property Law should be incorporated into the Civil Code, etc. The following is the speech given by Jiang Danming, recorded and organized by China IP.

 

Many experts, peers, and especially academic circles, have attached great importance to the issue of whether IP Law should be included in the Civil Code. There are three main points of my speech today. The first is the relationship between IP law and Civil Code. The second is the reason why some scholars advocate for including the IP Law in the Civil Code. The third is the reason why I personally think that it is not appropriate to incorporate IP Law into the Civil Code.

 

People in the legal profession should pay close attention to the compilation of the Civil Code. The compilation of the Civil Code is not only a milestone in the history of the rule of law in China, but also an important legislative task of the current legislature. Therefore, it has gained a large extent of academic interest. Whether or not the Civil Code incorporates IP Law, and if so, how to incorporate them, as well as how to write IP rights is also a topic of great concern to the IP community. The academic community has conducted many in-depth discussions and research regarding this issue.

 

Many experts and scholars argue that the reasons for the inclusion of IP Law in the Civil Code are mainly as follows. First, whether IP Law can be incorporated into the Civil Code is related to the role and function of IP Law in the Chinese legal system. There are three specific arguments. IP rights are private rights, and their entry into the Civil Code is a return to their nature. It is not only needed as a guarantee of its nature of private rights, but also needed to ensure the integrity of the civil rights legislation in the Civil Code. Whether IP Law are included in the Civil Code is related to the status of IP Law in the civil law family, to whether it is part of the basic system of economic life in China, and also to the legal hierarchy and authority of IP Law. In modern society, intellectual property is at the basis and core of properties. In the civil property system, IP rights have outperformed property rights and creditors and been ranked the No.1 property right. In addition, whether IP Law can be incorporated into the Civil Code determines whether the Civil Code is modern and scientific. The reason mainly includes four arguments.

 

The Civil Code of the 21st century should be the Civil Code of the informational society. IP Law, as the basic laws for adjusting social relations with information, should be included in the civil code; the inclusion of IP Law in the Civil Code is conducive to overcoming the wrong idea of regarding IP Law as special laws or management laws, an idea held mostly by people in the administrative law enforcement department. The establishment of IP Law in the Civil Code is not only a symbol of the modernization of the Civil Code, but also a revolutionary milestone in the compilation of the Civil Code in the 21st century. The inclusion of intellectual property rights in the Civil Code might be “squatting” at most, but if not included, it would be severely criticized.

 

However, I believe that if IP Law are not included in the Civil Code, it can also be severely criticized, but only by the IP academics. The civil law academic community may not be severely criticizing it, especially those who oppose the inclusion of IP Law in the Civil Code would not. The following are the main reasons why IP Law should not be included in the Civil Code. Most of them are the views of other experts and scholars., and some of them are my own ideas.

 

Firstly, historically, IP Law are commercial laws rather than civil laws. Professor Xiong Qi believes that in history, IP Law are closer to commercial laws in Roman law. The basic logic is that the merchants control the production and trade of knowledge. It combines with the country's goal of increasing national wealth and tax revenue, unlike the system of private law and civil law that were created to protect private rights in the Roman law era. From the history of the development of the intellectual property system, the IP Law are commercial laws, which emphasized the transfer (or application and exercising) of rights. This is completely different from the concept of civil law that “possession is the right; possession is the right to exercise”.

 

Secondly, in theory, I personally think that intellectual property is a private right with the characteristics of public rights. The censorship system for patents, trademarks, and new varieties of plants is not a confirmation of natural rights, but a grant of specific rights in accordance with the state's institutional and policy objectives. Otherwise, authorization should be prohibited or subsequent authorization should be affected by the existence of prior rights. For example, in a case tried by the US Supreme Court in 2018, the IPR procedure advocated by lawyers and parties was a violation of the judicial power of the court and a violation of the Seventh Amendment of the US Constitution, but in the end the Supreme Court considered granting a right an public affair, therefore a public right, so that the US Patent and Trademark Office Patent Appeals Board has not violated the jurisdiction of the court by reviewing the IPR for both parties. Under the least theory-based intellectual property system of the United States, intellectual property rights are not considered purely private. I personally think that in many existing systems of intellectual property, such as fair use, non-infringement exceptions, compulsory licenses, etc., intellectual property rights are not considered sacred and inviolable private rights. The differences between developed and developing countries in the object, conditions and restrictions of intellectual property protection fully reflect the “national” or “instrumental” characteristics of the intellectual property system. The United States used China’s ineffective intellectual property protection as an excuse to launch a trade war, which fully proves that intellectual property rights are an economic tool. On the other hand, the United States does not and will not use China’s ineffective protection of personal rights or property rights as an excuse to start a trade war or to impose economic sanctions on China.

 

Thirdly, from the perspective of legislative technology, there are obstacles to the entry of IP Law into the Civil Code. The Civil Code is a law that regulates the relationship between equal civil subjects, and it is difficult to be incorporated into administrative aspects. It is also difficult to abstract general rules of different types of intellectual property. At the same time, many scholars also believe that IP Law are subjective to instability and great variability, and does not meet the requirements of the stability and continuity of the Civil Code.

 

Fourthly, from practice, intellectual property has not yet become the first major property right. From the universality of rights or the number of subjects, intellectual property rights are far below property rights. For example, there are 1.4 billion human beings and 100 million commercial entities in our country enjoying property rights, but only a few million entities have patents, trademarks, and use-worthy copyrights.

 

In terms of total value, compared with China’s 82 trillion GDP and 450 trillion market capitalization of real estate in 2017, the value of intellectual property (assuming that the value of intellectual property generated by R&D investment of the 2% of GDP is five times the input, then the new intellectual properties are worth 8 trillion RMB every year) is not worth noting. Judging from the number of litigations, more than 230,000 IPR first-instance cases account for only about 2% of the 11.5 commercial first-instance cases, so that intellectual property rights have not yet become the first major property rights.

 

Fifthly, there is no successful experience in incorporating IP Law into the Civil Code. The Intellectual Property Codes of France and Italy are not technically Intellectual Property Codes in the sense of Civil Code. The inclusion of IP Law in the Civil Code by Russia, Belarus and other CIS countries has not provided China with lessons or examples to draw upon.

 

Lastly, about the issue of how to deal with IP Law if not included in the Civil Code. My point of view is the same as that of some other scholars, That is, to gradually establish an independent and individual Intellectual Property Code. It is necessary to proceed step by step, drafting the General Principles of IP Law and the Basic Law on Intellectual Property Rights. The suggestions to the Intellectual Property Code drafted by China Intellectual Property Law Research Society have discussed similar general principles. The first step can be drafting a general rule or a basic law. The second step is to compile the Code: to incorporate the common public or private law provisions in the General Principles or the Basic Law, to abolish unilateral laws and regulations, and to formulate laws or regulations on the procedures of registration and approval of intellectual property rights.