An Academic Overview of Relations between IP Law and Civil Code

Li Zonghui

With the development of the economic life and deepening of the theoretic research, the civil law community in China began, from the late 1990s and early this century, heated discussions on how to develop a good civil code, and the legislative authority also appointed some experts and scholars to start the work on drafting the civil code. Since the work along the line also involves the structure and system of the civil code, whether to incorporate the intellectual property law into the civil code has become one of the points of attention from the scholars. The relevant discussions have been kept on to date.

In general, views in the civil law community on incorporating the intellectual property law into the civil code are as follow:

1. View against the Incorporation

In a sense, the opponent view is the mainstream view. Those against incorporating the intellectual property law into the civil code have cited the reason that the intellectual property law system is in constant change, and incorporating it into the civil code goes against the requirement for stability of the civil law. They feel that unlike other civil law system, the intellectual property law system is under the great impact of the economic development, cultural advancement and technological change, with new objects and new rights constantly emerging, and with the need for rapid addition and updating of the contents of the law. Incorporating such a frequently-changing law system into the relatively stable civil code would harm the authority of the civil code. Another important reason these scholars have put forward is that the intellectual property law is tremendously complex in contents, and the incorporation will affect the purity of the civil code provisions. Since the intellectual property law includes a lot of administrative regulations, criminal provisions and procedural rules, some scholars are concerned about the possibility that incorporating the intellectual property law into the civil code reduces the private law nature of the civil code, and ruins the purity of the private law. Some opponents have also pointed out that the intellectual property system, now a relatively independent system having some special characteristics of its own compared with the civil law system, is not suitable to be incorporated into the civil code. For these scholars, since the objects of the intellectual property rights are intangible intellectual achievements, the intellectual property rights are granted by the State, and limited in time and territory. These features are absent in the civil right, and render the intellectual property law somewhat different from other civil law system in way of regulation and means of protection of the involved right. It is better not to incorporate the intellectual property law into the civil code. Besides, other reasons against the incorporation are that the various rights of the intellectual property law are so different that it is difficult to form the general rules applicable to all of them to meet the requirement for the systemisation of the civil code. To date, the basic theoretic research and construction of a mature system are missing in the intellectual property laws in China. The condition for the incorporation is inadequate. After China's accession to the TRIPS Agreement, directly incorporating the international rules for the protection of the intellectual property rights into the national laws is not in agreement with the existing judicial system. The legislation efforts to incorporate the intellectual property law into the civil code as exemplified in the Civil Codes of the Netherlands, Italy and Viet Nam do not offer us much experience for reference. Efforts along the line have been given up in those nations either due to the legislative and technical difficulties, or lack of workability of the provisions set forth, or the failure of the entire system design.

2. Views for the Incorporation

Scholars for the incorporation mainly base their views on these reasons. Firstly, incorporating the intellectual property law into the civil code is an important response to the era of the knowledge-based economy we are now in. The intellectual property law system has been increasingly amplifying itself, which makes the incorporation of the component of the intellectual property rights in the civil code possible. The French Civil Code and German Civil Code came into being in the early and late 19th century and the early 20th century. Restricted by the time, the two Civil Codes set forth no provision on the intellectual property system. After 1980s and 1990s, the thriving development of the new technological revolution and the rapid change in the world industrial structure have made the intellectual property rights increasingly important in the production. Against this backdrop, we cannot afford to disregard the intellectual property system when we are formulating our civil code. Secondly, the intellectual property right is an integral part of the civil right system. With no provision set forth on it, the civil code is inadequate. The intellectual property right has been recognised worldwide as a private right, and the current General Principles of the Chinese Civil Law have set forth provisions on it in Chapter Five "Civil Rights". If intellectual property-related provisions cannot be found in the civil code to be formulated, it would be a step back. Thirdly, from the perspective of the relations among the objects of the rights, the intellectual property is a formless object, and it corresponds to the concept of the objects with form in the conventional civil code, such as the German Civil Code; hence, the part or real right of contemporary civil code is followed by the part on the intellectual property, which may properly show the relations and difference between the intellectual property right and the real right. Fourthly, the universal applicability of the basic principles and regulation method of the civil law is decisive with regard to the rationality to incorporate the intellectual property law into the civil code. Besides, the doctrines of fairness and that of honesty and credibility observed in the civil law are also the basic principles of the intellectual property law, and the transition stressed by the modern civil law from "being individual oriented" toward "being society oriented" exactly matches the intellectual property law's pursuit of balance between the private interests and public interests. The method of protection and means of relief for the real right under the civil law, such as "right to claim on the basis of real right" and "damages" also apply to the intellectual property right. Finally, incorporating the intellectual property law into the civil code not only helps coordinate the relations between the intellectual property law and the entire civil law system, enhance the civil law's principle support and logical guidance for the benefit of the intellectual property law, and promote the further improvement of the intellectual property law, but also helps amplify the structure of the civil code system, and enrich the system and theoretical research of the conventional civil law. After incorporating the intellectual property law into the civil code, the provisions of the civil law on contract and limitation of action may apply to the intellectual property right without modification, thus making it unnecessary to repeat provisions in the current legislation (e.g. the Contract Law and the Patent Law both have set forth separate provisions of their own on licensing contract for patent exploitation) and making it possible for the intellectual property system to be better integrated into the civil law system. Furthermore, many provisions of the civil law and the intellectual property law maybe mutually referred to and complementary, such as those on the publication of change in real right, public credit doctrine, and requirement for registration of change in the intellectual property right; and the personal right of the copyright and the right of person. These provisions can possibly be harmonised after the intellectual property law is incorporated into the civil code.

3. Partial Incorporation

Scholars advocating partial incorporation take the view that general or common principles are spelt out in the civil code concerning the common characteristics and principles of the intellectual property right, while specific intellectual property laws, i.e. the separate intellectual property laws, are enacted as the special civil laws. This view actually represents a middle road on the issue of the incorporation, seeking mediation of the above diametrically different views. The reasons supporting this view are nothing but a combination of the reasons supporting the two extreme views discussed above. However, what is more worth our attention is their recommendation on how to put this view into practice in the civil law. Scholars advocating the incorporation generally emphasize that the civil code should make salient the difference between the intellectual property right component and the other civil systems, and should be generally applicable to each and every intellectual property right, without affecting the independence of the relevant special civil legislation. Specifically speaking, the primal problem is that provisions should be set forth on the nature, scope, effect, use and protection of the intellectual property right. Still other scholars have theoretically probed into the issue in more detail. They divide the provisions of the intellectual property law into two categories: those for determining the relations between the subjects and subject matters of the intellectual property rights, mainly including the contents, such as the subjective qualification of each specific intellectual property right, subject matters under the protection, mode and procedure for rightholders to control and manipulate the subject matters of the rights and to acquire these rights; and those for regulating the relations of control and manipulation of their rights by the holders of intellectual property rights, mainly including the scope and exploitation of the intellectual property rights, cessation and relief of infringing acts and the capability and qualification of foreigners to acquire and enjoy the intellectual property rights. For them, the first category of provisions, which are different for the different classes of intellectual property rights with varied characteristics, are not suitable to be incorporated into the civil code, while the second are the few common provisions that may be the abstraction from the separate intellectual property laws and regulations, and can be incorporated into the civil code.

In conclusion, the Chinese civil law community are now widely divided in their views on whether to incorporate the intellectual property law into the civil code, and what the final outcome will be remains unclear. However, it is certain that with the constant advancement of science, technology and culture and the rapid development of the intellectual property industry, the civil law will surely pay more attention to the intellectual property law system, and the intellectual property laws will contain the general provisions of the civil law thanks to their extensive integration with the social life.

The author: Peking University Law School

References:

The Part on the Intellectual Property Rights of the Chinese Civil Code (Draft for comments from experts)

Wang Liming, Several Issues Concerning Construction of Chinese Civil Code System

Ma Junju, and Zhou Ruifang, Guiding Ideology and Theoretical Conception of Civil Code Formulation

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For the original sources of the views discussed in this article, see the notes in its original Chinese version.