试论知识产权的私权属性及其公权化趋向

On the Intellectual Property's Private Right Nature and Its Publicizing Trend

知识经济时代的知识产权正由传统意义上的私权蜕变为一种私权公权化的权利。私权性是知识产权的本质属性,知识产权私权的公权化趋向乃是建构知识产权法的利益平衡机制、保障知识产权人的专有权、实现知识产权法的公共利益价值之所需。知识产权私权的公权化表明知识产权兼具有私权属性和公权属性,二者对立又统一。其中,私权属性是矛盾的主要方面,公权属性是矛盾的次要方面。知识产权私权的公权化意味着在加强知识产权私权保护的同时应当重视社会公共利益,以防止私权保护不足或私权保护过度从而破坏知识产权人利益和社会公共利益的平衡。知识产权法在民法体系中具有相对独立地位。

In the era of knowledge- based economy, intellectual property is being transformed from private right in traditional meaning into private right together with its tendency of public right. The nature of private right is the essential nature thereof. The tendency of public right is necessary to construct the interests balanced mechanism of intellectual property law, to assure the exclusive right of the owner of the intellectual property, and to realize the common goods value of intellectual property law. The tendency of public right of intellectual property is to show that intellectual property has the nature of private right and public right, the two set against as well as unify each other. The nature of private right constitutes the principal aspect of the contradiction, while the nature of public right belongs to the less important aspect of the contradiction. The tendency of public right also means that it should attach importance to common goods while strengthening the protection of private right of intellectual property, so as to prevent private rights from being protected insufficiently or excessively thus destroying the balance between the interests of the owner of intellectual property and common goods. Based on the introspection of the nature of intellectual property, intellectual property law should has a relatively independent status in the system of civil law.