Abstract:With the further development of our socialist market economy and keep up with the pace of the accelerating, problems of intellectual property in international trade increasingly, our more flexible processing corresponding copyright, patent and trademark issues, and to improve China's intellectual property protection system. As all the sources of law of constitution, such rights also make some regulation, and thus formed a Chinese characteristics of copyright, patent right, trademark right protection system. This article attempts from the constitutional protection of private property rights and invention, creation of the right angle on the Constitution for in-depth analysis of civil intellectual property protection.

 

 

Key word.Constitution Fundamental right Copyright The patent right Trademark right Security

 

Introduction

  With the continuous deepening of the development of China's construction of China socialism and socialist market economy, the important role and status of intellectual property in the development of economy and society increasingly. However, there is no complete intellectual property protection system, is not the citizen of intellectual property protection and the protection to further promote the economic, cultural development. The establishment of law protection system of intellectual property rights need to confirm with the authorization from the constitution.

Compared with other basic civil rights, intellectual property rights of citizens is specific to its intellectual achievements in a period of exclusive use or permit others to use, and a kind of special right of return. Because of the lack of universality, the legislators in civil intellectual property protection clause in the constitution issue adopted an evasive attitude, the provisions of the relevant basic rights of citizens indirectly confirmed and way of guaranteeing citizens' intellectual property rights, the constitutional regulation.

But considering the actual status of the implementation of China's economic and social development and the intellectual property rights strategy and China's intellectual property protection system reference to countries in Europe and America, confirmed that it is very necessary and protect civil intellectual property provisions in the constitution.

The difference between a, the protection of intellectual property rights and constitutional law

1.1America constitution on the protection of intellectual property rights regulations and its influence

Western constitutional often give citizens property right constitutional status of inviolability, there are "natural rights" theory and "utilitarianism" theory as a support.[1]While the Anglo American law system countries tend to pay more attention to the latter, the constitution usually considered intellectual property as the author, the patentee, the trademark owner's private property and to establish and protect. Comparing to other countries, Britain and the United States to protect intellectual property are often carry out more thorough, comprehensive, the reason is that this is a basic right of citizens from the constitutional (property) has the highest legal effect.

1.1.1USA constitutional provisions on protecting copyright, patent right, trademark right and the guarantee of corresponding terms

  According to the traditional theory, USA constitution on citizen copyright, patent and trademark right corresponding to the different constitutional provisions. Among them, the citizens of copyright and patent protection mechanism is founded according to USA constitution article6"The supremacy clause" and the1Article8Paragraph8"Copyright and patent" clause, i.e.:

"The Congress shall have power... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"[2]

  And the establishment of the safeguard mechanism for civil right of trademark is considered from the USA constitution article1Article8Paragraph3"Terms of trade", i.e.:

"The Congress shall have power... To regulate commerce with foreign nations, and among the several States, and with the Indian tribes"

However, when America Congress passed the first federal trademark law,1879Years American Supreme Court but with no constitutional basis for ruled that the trademark law as unconstitutional. Also in the America constitution strictly on the right to exclusive use of a trademark regulation and security, in order to safeguard the interests of trademark.

1.1.2American clause of the Constitution and its impact on the protection of intellectual property rights

  America constitution article1Article8A related provision is origin of legal validity American intellectual property protection system, which directly provides citizens scientific inventions, utility American complete works, in a certain period of time to enjoy the exclusive right to use, to license others to use and the right to return; and from the angle of trade protection indirectly provided the protection of trademark rights. This in itself to USA three intellectual property protection system, continued development, complete, has produced profound influence:

  First of all, from the Federal Constitution as the origin of all the federal law angle, confirmed by the supreme law way and guarantee American citizen's copyright, copyright and trademark right.

  Secondly, from the protection of intellectual property rights in the federal law and state law protection of American respectively, the protection of intellectual property rights has undergone major changes in the laws of the state of tilt to the federal law, the landmark event is1947Year "Lanham act",1976"Copyright law",1990To develop "visual artists rights law". Visible America more and more attention to the protection of intellectual property rights of citizens.

  Once again, from the angle of American intellectual property protection system, in the premise of USA constitution, complete intellectual property rights protection mechanism. Especially the "Millennium Network Copyright Law ("DMCA) promulgated corresponding laws and regulations, the protection level of intellectual property American citizens walk in the forefront of countries around the world.

  Finally, from the America attaches great importance to intellectual property, intellectual property country perspective, intellectual property protection mechanism USA confirmed by constitution, greatly promoting the development America culture, technology, promote the culture, technology export trade American, to occupy the initiative in the world market.

1.2Reflect our constitution of civil protection of intellectual property rights

  The constitution of our country did not make clear, detailed on civil intellectual property protection. Reading carefully, but the provisions of the constitution, it is not difficult to find the constitution article13On the private property protection provisions, article47The provisions of citizens engaged in education, science, technology, literature, art and other cultural institutions and free, in fact to be regarded as private property Copyright (copyright related personal rights to and below), the origin of the constitution of patent right, trademark right protection. In addition, the constitution article42The right of citizens to work and the labor remuneration of our citizens through creation, invention, trademark licensing, gains were confirmed in broad sense and protection.

  Of course, compared with the specified American constitution, strength and influence of our constitution to civil intellectual property protection seems a little bit thin. But such rules and basic national conditions of the primary stage of socialism in China and China's current lack of technological competitiveness, relying solely on manufacturing exports policy adaptation.

Regulation and its significance of three, our constitution of civil protection of intellectual property rights

2.1To our country constitutional civil protection of intellectual property rights related provisions of regulation

As mentioned above, the constitution of our country to guarantee civil intellectual property provisions are the13"The protection of private property" clause, article47"The protection of citizens in scientific research, literary and artistic creation, cultural activities" clause and the43"The protection of citizens' right to labor" clause.

The article13The provisions on protection of private property of citizens in China. Literally, only guarantee the rights of citizen's private property and inheritance rights relates to the bar. But it was the "private property right" expansion, the citizen's private property should not only ownership including the lawfully earned income, savings, houses and other lawful property, should be covered by citizens get works, scientific inventions, improvements to existing technology, the use of a registered trademark or copyright, patent right, special right the trademark and the permission to use the benefits etc.. Because according to the current law, intellectual property itself is a kind of can bring real benefits to the property rights of citizens.

Relating to copyright, the citizen's personal right of copyright protection is unavoidable. The personal right of copyright refers to the copyright of works of the right of publication, authorship, right of revision, the right of integrity. Although it has the obvious difference with the meaning of the civil code general personality right, but the personal right of copyright is belong to copyright works on the proprietary rights of the person, it with the name right, portrait right, reputation right the same nature, can be directly affected by the civil law protection. The Japanese scholars believe that the equivalent to general personal right, "the Japanese copyright law" also adopted this legislation view.[3]Thus our country constitution article38"The provisions of the personal dignity of citizens are not violated", in fact can be seen as the general provisions of the civil constitution of the personal right of copyright protection.

Our constitution article47One is defined by our citizens in scientific research, literary and artistic creation and other cultural activities. Confirm that the citizens through literary and artistic creation, scientific research -- the invention and technology to improve access to copyright and patent rights, and safeguards the citizen of copyright and patent exclusive or licensing.47Article2"Countries engaged in education, science, technology, literature, art and other cultural citizenship is good for the people of creative work, give encouragement and help." It clearly shows that the State encourages and promotes the improvement of civic art and scientific invention or technology attitude, that is to say the citizens through the intellectual labor, the copyright, patent right creative activities are protected by the state, to encourage and support.

Article42Principle of citizen's right of labor and labor remuneration can be regarded as the constitutional guarantee of citizen's right to work and the protection of civil intellectual labor is a kind of intellectual property supplementary provisions.

In summary, our constitution has not explicitly will guarantee civil intellectual property rights as a basic right, but through the corresponding regulations, and the protection of intellectual property in China has the highest according to the constitution, and thus promote the intellectual property rights protection system in China with the development of socialist market economy and continuous improvement.

2.2The profound meaning of the constitution of our citizens of intellectual property protection in China

  Our constitution is to our country since the founding of new China, especially the reform and opening up30Programmatic policy documents since many years experience and led China's modernization construction, the construction of socialist market economy. It is confirmed that the citizen's basic rights and protection, embody the China socialism democracy and legal requirements, is conducive to the development of China's democracy and the rule of law, perfect. At the same time, must reflect the constitutional recognition of the fundamental rights of citizens and the protection of China is the guarantee of basic human rights.

  As the fundamental right of citizens, intellectual property has not been explicitly included in the provisions of the constitution, but as mentioned above, the constitution of our country through the protection of the rights of citizens indirectly on intellectual property protection mechanism for our confirmation. China's protection of citizens' intellectual property rights are the origin of the constitution, the NPC and its Standing Committee, the State Council for decades has formulated by the "copyright law", "patent law", "trademark law" three intellectual property law as the main framework, including "the right of communication through information network" and other special protection regulations, intellectual property protection system.

  Of course the level of protection of intellectual property in China compared with developed countries, the European Union, Japan and other USA still is not perfect, some of the provisions are not mature. But the current framework of intellectual property rights protection system in China, is to adapt to the development of China's socialist market economy requires. This greatly promoted the improvement of literary and artistic creation, the scientific invention and technology of our country citizen. On China's economy from extensive to intensive, from labor oriented to technology oriented development has played an invaluable role.

To further improve the thinking of our constitution to civil intellectual property protection, three

3.1The necessity of constitutional provisions on intellectual property protection of explicit

  Although the constitution of our country indirectly confirm and protect the citizens of the intellectual property rights, but failed to clear the list, can not be said to be a deficiency of legislation. Considering our country foreign trade export policy efforts are being directed by the labor intensive goods to technology intensive goods oriented, that is "Chinese manufacturing" to "Chinese creation" change, the intellectual property right especially industrial property (patent rights, trademark rights) protection is especially important, urgent the highest potency method -- the constitution recognition and protection. So the civil intellectual property protection clause in the constitution has now become necessary measures. The necessity of constitutional provisions on intellectual property protection of explicit three:

  First of all, "science and technology is the first productivity". The development of China's cultural and artistic undertakings, to the development of Chinese scientific and technological undertakings, as soon as the science and technology into productivity, powerful guarantee no law on copyright, patent right is difficult to realize. Confirmation of legal, laws and regulations to protect the citizens of intellectual property and its effectiveness comes from the constitution.

  Secondly, the United States, Japan and other countries established the "intellectual property country" Millennium Development planning. But the Constitution with developed countries American etc. without exception will on civil protection of intellectual property is included in the basic rights of citizens in its confirmation. Our legal system of intellectual property rights are almost all draw lessons from Europe and the United States, so the protection of civil intellectual property rights provisions in the constitution is logical.

  Finally, the citizens of our country patent rights, trademark rights protection into the constitution, will promote the perfection of relevant legislation in china. The industrial property protection mechanism complete will accelerate the patent technology in China put into use, to promote China's trademark to increase the international visibility, so will further establish the favorable position of China's foreign trade in the world market.

3.2A constitutional amendment suggestions

  Based on the above, the author thinks it is necessary amendment will guarantee civil intellectual property provisions in the next Constitution explicitly included in the second chapter, "the basic rights and obligations of citizens" text.

  The concrete can be "special state recognition and protection of citizens, legal persons and other organizations of the copyright, patent right, trademark right." As the constitution article47The article2Paragraph.

  The constitution of our country citizen enjoys the identification and protection of IPR clear, will greatly promote the realization of China's intellectual property strategy.

Conclusion

  The development of intellectual property rights in China's economy, and our society, culture is closely related to the development of. The state protects citizens' intellectual property rights from the constitution, enjoyed by citizens of intellectual property protection is not only the real economic significance, more can promote democracy and the rule of law progress, development of the cause of human rights.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Reference.

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[2]Ceng Xianyi, Wang Liming: "the constitutional principles and case tutorial", Renmin University of China press, Second Edition, the203~275Page

[3]Wang Qian: "intellectual property law", Renmin University of China press2009In version second, No.102,103Page, the104,105Page

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