国际贸易中知识产权的权利穷竭问题研究
发布时间：2018-07-26 13:02
【摘要】：知识产权的权利穷竭问题是国际贸易的知识产权法领域中一个充满争议的热点问题。本文从知识产权法的基本理论、国际贸易政策与竞争政策、国际协定和各国国内法对权利穷竭的规定,以及我国与权利穷竭相关的法律、政策问题等角度出发,比较全面地分析了国际贸易中知识产权的权利穷竭问题。本文正文共分四章。 第一章分析了知识产权权利穷竭的基本理论。本章结合知识产品的稀缺性以及利益平衡等知识产权法的基本理论,对权利穷竭原则的渊源、目的,权利穷竭原则中知识产权与物权和债权的关系,以及知识产权的国内穷竭原则与国际穷竭原则及其理论依据进行了梳理和分析。本章揭示出知识产权权利穷竭原则的目的在于平衡知识产品的稀缺性与商品市场上的产品流通秩序,并协调知识产权的排他性与物权排他性的关系,从而平衡知识产权人与社会公众的利益。知识产权的国内穷竭与国际穷竭问题是国际贸易中知识产品跨国流通所导致的必然后果,并反映出知识产权的地域性与国际贸易自由化之间的冲突关系,本章结合这一问题分析了TRIPS协定第六条的制定过程及基本内涵。 第二章从国际贸易的角度出发,分析了国际贸易政策、竞争政策、海关政策以及区域贸易安排视角下的知识产权权利穷竭问题。本章从国际贸易政策的性质出发,分析了影响各国制定权利穷竭及平行进口相关贸易政策的利益主体,以及经济学对这些利益主体在不同权利穷竭原则之下福利变化的分析。本章的研究表明,权利穷竭和平行进口问题涉及到的利益主体及其福利变化趋势非常复杂,决定了各国在相关领域的利益权衡必然导致不同的贸易政策立场,也决定了各国难以在权利穷竭问题上达成贸易政策的协调。但由此导致的各国相关法律规则不一的局面必将对国际贸易自由化产生不利影响,因为这增加了知识产品在国际市场流通时面临的规则不确定性。本章也指出,权利穷竭相关规则的不确定性对国际贸易的负面作用如果积累到一定程度,本身将成为推动各国下决心就权利穷竭问题进行政策协调,从而推动TRIPS协定中相关规则向前发展的政策动因。本章还分析了国际贸易中平行进口问题对各国竞争政策产生的影响。由于知识产权人为限制平行进口而采取的垂直限制会产生具有跨国性的影响,导致奉行“效果原则”的竞争政策无法充分发挥调整作用。这使得竞争政策的国际协调成为必需考虑的问题。本章也考察了与权利穷竭相关的海关政策和区域贸易安排。平行进口对于海关而言构成了管理中的一个难题,各国海关必须在贸易便利化与知识产权保护之间取得平衡,在此基础上执行本国知识产权法对平行进口的具体规定。而权利穷竭与平行进口也已成为美国、欧盟与发展中国家签署的自由贸易协定的调整对象,美、欧都倾向于利用自由贸易协定要求缔约方采取国内穷竭原则。 第三章考察了各国国内法对国际贸易中知识产权权利穷竭问题的规定。本章有侧重地分析了不同国家在专利、商标和版权领域的相关规定。本章的研究表明,目前世界各国对权利穷竭的规定非常复杂,不仅各国之间立场不一致,而且同一个国家对不同知识产权主题的规定也不一致。这无疑增加了未来在多边体制下对权利穷竭问题进行国际协调的难度。 第四章考察了我国在国际贸易中面临的权利穷竭问题。本章结合我国专利法第三次修改中采取专利权国际穷竭原则的最新发展,梳理了专利法、商标法、著作权法以及行政规范性文件对权利穷竭相关规定的演变历程,考察了我国法院关于知识产权权利穷竭的已有实践。本章结合我国在国际贸易中的现实处境,认为知识产权的国际穷竭原则更符合我国在未来一段时期内的贸易利益。基于这一结论,本章对我国专利法、商标法和著作权法如何分别完善关于权利穷竭和平行进口的相关规则提出了建议,并对反垄断法、海关规定以及我国的自由贸易协定如何帮助实现我国在权利穷竭方面的政策目标进行了探讨。 作为结论,本文认为国际贸易中的知识产权权利穷竭问题集中体现了物权与知识产权、知识产权人与社会公众、知识产权地域性与国际贸易自由化等多重矛盾,具有高度的复杂性。对权利穷竭和平行进口的法律规范必须建立在对贸易政策、竞争政策和知识产权政策的综合分析基础上,并符合特定国家的利益需求。这导致在多边体制下对权利穷竭的协调难以实现,对这个问题的争论也将长期持续。我国已认识到知识产权的国际穷竭原则目前更符合我国利益,应通过完善相关立法将这一原则予以贯彻实施,并与贸易伙伴国就权利穷竭开展双边协调,以确保未来多边体制下权利穷竭的规则发展符合我国的利益需要。
[Abstract]:The exhaustion of intellectual property rights is a hot and controversial issue in the field of intellectual property law in international trade. This article is based on the basic theory of intellectual property law, international trade policy and competition policy, international agreements and the provisions of domestic law on the exhaustion of rights, as well as the law and policy issues related to the exhaustion of rights in China. The paper starts with a comprehensive analysis of the exhaustion of intellectual property rights in international trade. The text is divided into four chapters.
The first chapter analyzes the basic theory of the exhaustion of intellectual property rights. This chapter combines the basic theory of intellectual property law, such as the scarcity of knowledge products and the balance of interests, and the origin and purpose of the principle of exhaustion of rights, the relationship between intellectual property rights and property rights and claims in the principle of exhaustion of rights, the domestic exhaustion principle of intellectual property and the international exhaustion. This chapter reveals that the purpose of the exhaustion principle of intellectual property rights is to balance the scarcity of knowledge products and the order of product circulation in the commodity market, and to coordinate the relationship between the exclusiveness of intellectual property and the exclusiveness of property rights, so as to balance the interests of the intellectual property holders and the public. The domestic exhaustion and the international exhaustion of property rights are the inevitable consequences of the transnational circulation of knowledge products in international trade, and reflect the conflict relationship between the territoriality of intellectual property and the liberalization of international trade. This chapter analyzes the process and basic connotations of the sixth articles of the TRIPS agreement in combination with this question.
The second chapter, from the perspective of international trade, analyzes the problem of the exhaustion of intellectual property rights under the perspective of international trade policy, competition policy, customs policy and regional trade arrangement. This chapter, starting with the nature of the international trade policy, analyzes the stakeholders that affect the policy of exhaustion of rights and parallel import related trade policies in various countries. Economic analysis of the welfare changes under the principle of different rights exhaustion. The study in this chapter shows that the subject and the trend of welfare change involved in the problem of rights exhaustion and parallel import are very complex, and it is determined that the balance of interests in the related fields will inevitably lead to different trade policy positions, and it is also determined. It is difficult for countries to achieve the coordination of trade policies on the issue of exhaustion of rights. However, the resulting situation of different countries' relevant laws and regulations will have an adverse effect on the liberalization of international trade, as this increases the uncertainty of rules faced by the circulation of knowledge products in the international market. If the negative effect of certainty on international trade is accumulated to a certain extent, it will itself be the policy driver to promote the policy of the determination of the exhaustion of rights and promote the development of the relevant rules in the TRIPS agreement. Since the vertical restrictions imposed by intellectual property holders to restrict parallel imports will have a transnational effect, the competition policy which pursues the "effect principle" cannot fully play the role of adjustment. This makes the international coordination of the competition policy a necessary consideration. This chapter also examines the customs policies related to the exhaustion of rights and of the exhaustion of rights. Regional trade arrangements. Parallel imports constitute a difficult problem in the management of customs. Customs must balance trade facilitation and intellectual property protection, on the basis of which the specific provisions of national intellectual property law on parallel imports are implemented. The target countries of the free trade agreement signed by the United States and the US are inclined to use the free trade agreement to require the parties to adopt the principle of exhaustion.
The third chapter examines the provisions of the domestic law on the exhaustion of intellectual property rights in international trade. This chapter focuses on the analysis of the relevant provisions in the fields of patent, trademark and copyright in different countries. The regulations of a country on different intellectual property rights are also inconsistent. This undoubtedly adds to the difficulty of international coordination of the problem of exhaustion in the multilateral system in the future.
The fourth chapter examines the problem of the exhaustion of rights in China's international trade. This chapter combs the evolution of patent law, trademark law, copyright law and administrative normative documents on the exhaustion of rights in the third revision of China's patent law, and examines the development of the relevant provisions of the exhaustion of rights in the patent law, the copyright law and the administrative normative documents. This chapter, based on the practical situation of the exhaustion of intellectual property rights, considers that the international exhaustion principle of intellectual property is more in line with our country's trade interests in the coming period. Based on this conclusion, how to improve the exhaustion of rights in the patent law, the trademark law and the copyright law in our country The relevant rules for importing are proposed, and the anti trust law, customs regulations and how our free trade agreements help to achieve our policy goals in the exhaustion of rights are discussed.
As a conclusion, this paper holds that the exhaustion of intellectual property rights in international trade embodies the multiple contradictions between property rights and intellectual property rights, intellectual property and the public, the territoriality of intellectual property and the liberalization of international trade. The legal norms for the exhaustion of rights and parallel imports must be established in the trade administration. The policy, the comprehensive analysis of the competition policy and the intellectual property policy, is in line with the interests of the specific countries. This leads to the difficult coordination of the exhaustion of rights under the multilateral system, and the debate on this issue will continue for a long time. China has realized that the international principle of exhaustion of intellectual property right now is more in line with our interests and should be passed through the end. This principle is implemented by good related legislation and bilateral coordination with trade partner countries on the exhaustion of rights to ensure that the development of the rules for the exhaustion of rights in the future multilateral system is in line with the interests of our country.
【学位授予单位】：复旦大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D997.1
本文编号：2146095
[Abstract]:The exhaustion of intellectual property rights is a hot and controversial issue in the field of intellectual property law in international trade. This article is based on the basic theory of intellectual property law, international trade policy and competition policy, international agreements and the provisions of domestic law on the exhaustion of rights, as well as the law and policy issues related to the exhaustion of rights in China. The paper starts with a comprehensive analysis of the exhaustion of intellectual property rights in international trade. The text is divided into four chapters.
The first chapter analyzes the basic theory of the exhaustion of intellectual property rights. This chapter combines the basic theory of intellectual property law, such as the scarcity of knowledge products and the balance of interests, and the origin and purpose of the principle of exhaustion of rights, the relationship between intellectual property rights and property rights and claims in the principle of exhaustion of rights, the domestic exhaustion principle of intellectual property and the international exhaustion. This chapter reveals that the purpose of the exhaustion principle of intellectual property rights is to balance the scarcity of knowledge products and the order of product circulation in the commodity market, and to coordinate the relationship between the exclusiveness of intellectual property and the exclusiveness of property rights, so as to balance the interests of the intellectual property holders and the public. The domestic exhaustion and the international exhaustion of property rights are the inevitable consequences of the transnational circulation of knowledge products in international trade, and reflect the conflict relationship between the territoriality of intellectual property and the liberalization of international trade. This chapter analyzes the process and basic connotations of the sixth articles of the TRIPS agreement in combination with this question.
The second chapter, from the perspective of international trade, analyzes the problem of the exhaustion of intellectual property rights under the perspective of international trade policy, competition policy, customs policy and regional trade arrangement. This chapter, starting with the nature of the international trade policy, analyzes the stakeholders that affect the policy of exhaustion of rights and parallel import related trade policies in various countries. Economic analysis of the welfare changes under the principle of different rights exhaustion. The study in this chapter shows that the subject and the trend of welfare change involved in the problem of rights exhaustion and parallel import are very complex, and it is determined that the balance of interests in the related fields will inevitably lead to different trade policy positions, and it is also determined. It is difficult for countries to achieve the coordination of trade policies on the issue of exhaustion of rights. However, the resulting situation of different countries' relevant laws and regulations will have an adverse effect on the liberalization of international trade, as this increases the uncertainty of rules faced by the circulation of knowledge products in the international market. If the negative effect of certainty on international trade is accumulated to a certain extent, it will itself be the policy driver to promote the policy of the determination of the exhaustion of rights and promote the development of the relevant rules in the TRIPS agreement. Since the vertical restrictions imposed by intellectual property holders to restrict parallel imports will have a transnational effect, the competition policy which pursues the "effect principle" cannot fully play the role of adjustment. This makes the international coordination of the competition policy a necessary consideration. This chapter also examines the customs policies related to the exhaustion of rights and of the exhaustion of rights. Regional trade arrangements. Parallel imports constitute a difficult problem in the management of customs. Customs must balance trade facilitation and intellectual property protection, on the basis of which the specific provisions of national intellectual property law on parallel imports are implemented. The target countries of the free trade agreement signed by the United States and the US are inclined to use the free trade agreement to require the parties to adopt the principle of exhaustion.
The third chapter examines the provisions of the domestic law on the exhaustion of intellectual property rights in international trade. This chapter focuses on the analysis of the relevant provisions in the fields of patent, trademark and copyright in different countries. The regulations of a country on different intellectual property rights are also inconsistent. This undoubtedly adds to the difficulty of international coordination of the problem of exhaustion in the multilateral system in the future.
The fourth chapter examines the problem of the exhaustion of rights in China's international trade. This chapter combs the evolution of patent law, trademark law, copyright law and administrative normative documents on the exhaustion of rights in the third revision of China's patent law, and examines the development of the relevant provisions of the exhaustion of rights in the patent law, the copyright law and the administrative normative documents. This chapter, based on the practical situation of the exhaustion of intellectual property rights, considers that the international exhaustion principle of intellectual property is more in line with our country's trade interests in the coming period. Based on this conclusion, how to improve the exhaustion of rights in the patent law, the trademark law and the copyright law in our country The relevant rules for importing are proposed, and the anti trust law, customs regulations and how our free trade agreements help to achieve our policy goals in the exhaustion of rights are discussed.
As a conclusion, this paper holds that the exhaustion of intellectual property rights in international trade embodies the multiple contradictions between property rights and intellectual property rights, intellectual property and the public, the territoriality of intellectual property and the liberalization of international trade. The legal norms for the exhaustion of rights and parallel imports must be established in the trade administration. The policy, the comprehensive analysis of the competition policy and the intellectual property policy, is in line with the interests of the specific countries. This leads to the difficult coordination of the exhaustion of rights under the multilateral system, and the debate on this issue will continue for a long time. China has realized that the international principle of exhaustion of intellectual property right now is more in line with our interests and should be passed through the end. This principle is implemented by good related legislation and bilateral coordination with trade partner countries on the exhaustion of rights to ensure that the development of the rules for the exhaustion of rights in the future multilateral system is in line with the interests of our country.
【学位授予单位】：复旦大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D997.1
【引证文献】
相关硕士学位论文 前1条
1 廖川;信息资源版权的博弈均衡研究[D];北京邮电大学;2012年
，本文编号：2146095
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