知识产权法的人本主义伦理转向——以建构主义的技术观为视角

Moral transition towards humanism in intellectual property law: From the constructivist view of technology

数字时代,知识产权法因技术理性观的侵蚀而呈现出的失衡状态愈发凸显,隐藏着从局部失衡发展为系统性、结构性失衡的隐患。知识产权与隐私权、“数字人权”、生命健康权等权利的冲突亟待规制。建构主义的技术观从技术产生与运作中“人”的能动因素入手,为这一冲突提供了解决思路。数字时代知识产权法的建构应当以人本主义为落脚点,从“树立平衡保护观”“培育创新与发展共同体”“构建风险共同体”三重维度培育人本主义知识产权观,从坚持人的主体地位、强化人的主体责任、完善人的基本权利三个层面完善知识产权制度。

Triggered by technology, the generation and development of intellectual property law is characterized by "technological rationality", which sets the promotion of technology and the protection of interested party with more ability to use technology at the priority. The imbalance of intellectual property law due to the erosion of technological rationality, which is inherent in its development, is becoming more prominent in the digital era marked by artificial intelligence, cloud computing and big data, gradually developing from partly imbalance to systematic and structural imbalance. This is mainly manifested in the following three aspects: first, the conflict between the interests of intellectual property protection and personal information protection becomes inevitable as a result of the prevalence of digital lifestyle;second, the fundamentality of digital living exacerbates the harm of "digital gap", which added by lack of accessibility of digital products protected by intellectual property rights, will lead to structural inequality of individual’s ability to self-development;third, the status of human being is challenged by enhanced AI, which also urges institutional response. It is urgent to regulate the conflicts between intellectual property rights and the right of privacy, digital human rights, right to life and health, right to information, etc. The constructivist view of technology, which starts with the active factor of "human" in the emergence and operation of technology, provides a solution for the aforesaid conflict. The constructivist view of technology can be divided into two aspects, the express aspect refers to the establishment and modification of social systems, which determines the usage of technology, while the implied aspect focuses more on cultural factors that unconsciously and silently influence the development of technology. Directed by the constructivist view of technology, assimilate the theory of justice by Rawls and the distinction between "community" and "society" proposed by Ferdinand T9 nnies, the paradigm transformation of intellectual property law in the new technology era should take humanism as the starting point and the foothold, and eliminate technological rationality. The cultivation of humanistic view of intellectual property protection should revolve around the following points: first, establish a balanced view of protection, which aims at the balance of interests between creators, investors, disseminators and users;second, foster innovation and development community, set the eyes both on existent innovations and the potential of future innovations;third, build a risk community, assess the outcome of usage of technology before putting it into use, ensure that adverse consequences can be corrected and controlled by human beings. Moreover, a humanistic intellectual property legal system should stick to the implementation of following requirements: first, insist on the subject status of human being, deny to vest legal status on AI and future smart objects;second, intensify human responsibility, strengthen the obligation of prevention and control in advance and clarify the requirements of on-going supervision;third, clarify that intellectual property protection is the means but not the ends and complete fundamental rights, introduce the principle of "proportionality" in cases where balance of rights is needed. The proposal of humanistic intellectual property protection concept will also usher in the world moment for Chinese law.