知识产权构造的法理困境与出路——以权利对象特定原则为线索的考察

The Jurisprudence Dilemma and Outlet of Intellectual Property Right Structure-Taking the Principle of Specialty of Right Object as a Clue

从理论上说,知识产权的对象可以凭借其自身具有的一定程度的创造性或区别性,来实现其独立化及与其他知识产权对象的区分,但问题是创造性和区别性等概念本身也具有不确定性和模糊性。知识产权保护范围的划定虽然可以在一定程度上改善知识产权权利界限的模糊性,但不能一劳永逸地解决问题。立法者有必要基于政策上的考量,践行知识产权法定主义,尽可能地缓和知识的公共性与知识产权的私权性之间的紧张和对立。

Theoretically, the object of intellectual property right can achieve its independence and distinguish itself from other object of intellectual property right by resorting to its own certain degree of creativity and distinction. However, creativity or distinction itself also has the characteristics of uncertainty and ambiguity. Although the delineation of the protection scope of intellectual property right to some extent improves its blurring distinction, it can not solve the problem once and for all. For policy -based considerations, the legislators shall put the principle of legality into practice and ease the tension and opposition between the public nature of the knowledge and the private attribute of intellectual property right as much as possible.