论知识产权制度的“产业政策原则”

On the "Industrial Policy Perspective" of the Intellectual Property System

在知识产权保护的基本理论研究方面,私权论(无形财产论)一直占据主流,产业政策(industrialpolicy)被认为是一个负面词汇,原因是新经济学强调自由市场经济,反对国家干涉市场,而法律制度追求"人人平等",不会根据产业领域有所歧视。但是在各国知识产权的制度设计以及实践上,却无不体现出强烈的产业政策立场,纵观各国在不同技术领域的司法判例上贸易保护主义倾向、在同一技术领域中探戈舞般的左右摇摆,以及市场主体自相矛盾的知识产权保护观点,尽管都以捍卫智慧、保护创新为借口,但却决然掩盖不住背后针锋相对的产业利益之争。

With respect to the research on the basic theory of intellectual property protection, the private right perspective （also known as intangible property perspective） has always been in the dominant position. The term ＂industrial policy＂ has been regarded as negative, owing to the idea of new economy which emphasizes free market economy and is strongly against the state＇ s intervention on the market. The legal system aims at pursuing the equality of everyone and yet will not discriminate anyone among various industrial interests. However, viewing from the system design and practice of the intellectual property system in various countries throughout the world, the strong position of industrial interests can be seen everywhere. Although every country will undisputedly take defense of the wisdom and protection of innovation as an excuse, yet when looking at their tendency of trade protectionism in various technical fields, at their swing like dancing tango in judicial cases in the same technical area, and at the perspectives of intellectual property protection put forward by various market subjects, which, in most cases, seem to be in conflict with one another, the fierce fights and struggles of industrial interests behind can by no means be concealed. The reason why the private right perspective can be taken as the basic theory of intellectual property protection lies in that the definition of private property right provides legal ground for the right owner＇ s attainment of interests. Yet, the objective and pursuit of the legislation of intellectual property is the development of industry. The intellectual property system serves as the legal guarantee for the development of innovative industry, whose social function cannot be realized without giving proper consideration to the industrial interests. It is concluded in this essay that legislatively speaking, the legal regulation of the intellectual property system demonstrates the purpose of the industrial policy of a certain country and reflects the pursuit of the said industry for interests within a certain period of time. Meanwhile, from the respect of judiciary and administrative enforcement, the utilization of the intellectual property system is intended to fulfill and realize the mission of the industrial policy and forms a mutual interaction with the development of industry. From those perspectives, the flexibility of the industrial policy can be seen in both the legislation and enforcement of the intellectual property system. Therefore, the discussion on the ＂industrial policy perspective＂ cannot be evaded.