Intellectual property protection from the perspect

Intellectual property protection from the perspective of economics

under the conditions of openness, a country's innovation may come from two ways: domestic independent innovation and the inflow of foreign innovation. For developing China, the latter may be an important source of independent innovation. China's intellectual property protection system has been gradually established and developed after the reform and opening up. It has existed for a relatively short time. Chinese people's awareness of intellectual property protection is relatively weak, and the cost of effective protection of intellectual property is relatively high. At the same time, buying cheap pirated products has great temptation for Chinese people with low income, which has caused the situation that pirated products continue to be sold in China. In addition, for many law enforcement workers in China, intellectual property law is still a new thing, and the lack of intellectual property law enforcement professionals will also cause technical difficulties in the law enforcement process. Moreover, China's per capita GDP is still very low, and the income distribution is extremely uneven. Because it is difficult for low-income areas to access high and new technology, the awareness of intellectual property protection shows that when cast iron materials are under pressure, its shear capacity is less than the compressive capacity, which is very poor, which is inevitable. Even in developed areas with relatively high income levels, the income level is still an obstacle that restricts consumers from buying genuine goods. Therefore, the implementation of intellectual property protection required by the agreement on trade related intellectual property rights (TRIPS Agreement) requires a higher implementation cost for China. If the government wants to block the source channels of pirated intellectual property products through law enforcement, it needs to invest a lot of human, material and financial resources. Therefore, we should formulate an appropriate intellectual property protection system according to the national conditions in order to realize the requirements stipulated in the TRIPS Agreement

infringement of intellectual property rights directly occurs in the production and consumption of social spiritual products. In the case of low efficiency of law implementation, the breeding and spread of such infringement will affect the enthusiasm of creators to produce and develop information, resulting in the decline of the whole social welfare level. The view of economics is to adjust the relationship between the cost and benefit of property rights transaction and protection, and urge rational economic people to give up choosing infringement and other illegal acts. The specific idea is:

-- promote the realization of cooperative game of property right transaction. There are two interrelated efficiency goals of property right transaction, namely, maximization and equilibrium. Maximization is to maximize utility and profit, which is regarded as the goal of every economic individual; Equilibrium refers to the form of interaction in which each party achieves the maximum goal at the same time and tends to persist. The key to achieving the goal of equilibrium lies in the cooperative game of property right transaction. Empirical analysis shows that if the negotiation cost is too high and the two parties cannot conclude a contractual relationship, infringement is easy to occur. Intangible property is a complex economic activity from property right definition to transaction, which makes it difficult to identify and compensate for infringement. With the imperfect intellectual property market and the prevalence of opportunism, the resort to law for property disputes often brings high transaction costs. The best way to solve intellectual property disputes is to reach an agreement through negotiation to solve the compensation problem. Therefore, the state should provide effective "rules of the game" for the operation of relevant property rights transactions and improve the property rights trading market to reduce transaction costs. This is an important basis for preventing and reducing infringement

-- scientifically set the structure and amount of infringement cost. The key to stopping the individual choice of market subjects for infringement is to grasp the occurrence mechanism of infringement and suppress the expectation that the "benefit" of infringement is greater than the cost. Three aspects should be considered in the setting of the cost of infringement: first, weaken the infringer's ability to commit illegal acts and eliminate his material strength to engage in illegal acts, so as to increase the inevitable cost of infringement and reduce the "benefits" that infringement may bring; Second, scientifically estimate the relationship between the inevitable cost, legal cost and illegal interests in the infringement, and keep the total cost of the infringement greater than the "interests" obtained by the act, which is the minimum legal cost; Third, set a higher legal cost for some particularly serious violations, that is, increase the punishment for such violations in the form of law, so as not to make them profitable. Of course, setting the cost of infringement does not mean taking the road of "heavy punishment". Practice has proved that severe punishment can not effectively control illegal acts, but will lead to serious illegal acts. Stigler believes that "the marginal deterrent of heavy punishment is very small, and even counterproductive. If the criminals who commit minor injury and murder are sentenced to death, then the penalty has no marginal deterrent to murder. If the thief who stole $5 is given the punishment of chopping his hand, he would rather steal $5000." The same is true for the legal cost setting of infringement of property rights

-- there is a big difference between the moving distance of the clamp and the change value of the sample gauge distance to compensate for the efficiency of proof. The core of tort law is the definition of tort. Jurists believe that the key to whether the actor undertakes lies in whether he has fulfilled the "reasonable care" and "duty of prudence". Economists believe that following the above principles requires the actor to prevent damage at the most reasonable cost in order to protect the interests of obligees. What is the reasonable cost of prevention? Learnedhand, a judge of the United States federal court, put forward the famous "hande principle". This principle is summarized into a formula: "B ＜ PL", where: B is the cost of preventing accidents, PL is the expected accident cost (P is the probability of accidents, l is the loss caused by accidents). When the cost of preventing accidents is less than the expected cost of accidents (B ＜ PL), the actor should bear the infringement; When the cost of accident prevention is greater than the damage caused by the expected accident (b> PL), the potential perpetrators will not be liable for the accident. The hande principle is the basic rule applicable to negligence infringement cases. Posner developed this theory and believed that when the actor needs to be strict, the economic consequences of B PL, people are willing to compensate for possible accident losses, rather than spend prevention costs, otherwise the actor will suffer greater losses. In tort, which standard is effective? In this regard, Scott and ullen pointed out, "if prevention is two-sided, that is, both parties take preventive actions to reduce the severity and possibility of the accident, the form of fault rule is the standard of eligibility; if prevention is unilateral, that is, only the perpetrator is expected to take action to reduce the probability and severity of the accident, strict rules are the appropriate standard."

in the traditional theory of tort law, the principle of negligence is applicable to the infringement of intellectual property. From the perspective of economics, damage should be prevented by both parties, and negligence should be objectively quantified according to the "hande principle". This is undoubtedly effective at the beginning of the establishment of the intellectual property system. Kindergartens spend more and more on all kinds of teaching aids. However, in the modern information society, it may be more effective to prevent some infringement damages unilaterally by the perpetrator because: 1 The actor uses others' knowledge products free of charge, and the inevitable cost of his infringing products is low, so he is in a dominant position in the market; 2. The cost of the actor taking preventive measures is less than that of the producer. After the knowledge product is made public, the latter often pays a considerable cost to collect the information used by others and prove the fault condition used by others. Therefore, starting from the benefit principle, in the field of infringing knowledge products, it is necessary to amend the previous principles, that is, to supplement the application of fault presumption or strictness. Specifically, when a certain kind of serious infringement damage occurs, the actor should be ordered to provide evidence first. When the actor explains b> PL through the defense, it is proved that there is no fault and can be exempted; If there is no defense or the cause cannot be established, the actor is presumed to be at fault. The supplementary application of fault principle or strict principle can adjust the cost ratio of both parties to prevent accidents, improve the accountability rate of tort, and make the implementation of tort law in an efficient state. (end)