The role of judges in intellectual property protection, the positive and negative effects of intellectual property protection

I am a lawyer and have been engaged in intellectual property rights protection legal affairs for a long time. I often represent rights holders in court proceedings or complaints to administrative agencies regarding illegal infringement of their legitimate intellectual property rights. During my ten years of practice, I have witnessed the development of intellectual property protection in our country with personal experience, and I have also accumulated some personal opinions. This article attempts to make some superficial discussions on the role of judges in intellectual property protection from the perspective of a lawyer, with a view to attracting more judges, lawyers, jurists, government officials, and other social Insightful people from all walks of life should conduct more in-depth, extensive and active research and discussion on this issue.

There are many topics related to intellectual property protection. Why choose such a topic to discuss? Of course, this topic is certainly one of many important topics worthy of discussion in the industry, but what I want to say is , the role of judges in intellectual property protection is by no means just one of many important issues, but the most important issue in intellectual property protection! However, our country, our society, our government, including the judges themselves, have not Fully realize this importance.

The importance of intellectual property protection is self-evident and needs no further elaboration. However, there are different opinions on how to solve this problem well. The author here believes that as long as our judges play the role they can and should play, our country’s intellectual property protection issues will definitely be solved more smoothly!

This article will mainly focus on the following Three aspects are used to demonstrate the above proposition. First, the role that judges can play in intellectual property protection; second, the advantages of judges in intellectual property protection; third, judges should play a greater role. The discussion will proceed in the order described above.

The role that judges can play

1. Maintain the dignity of the law and deter infringers. The court's trials of various infringement cases can reflect the dignity of the law and deter infringers. However, compared with other infringement cases, the infringement behavior in intellectual property infringement cases often exhibits the characteristics of industrialization, scale, generalization, repetition, and stubbornness. It is impossible to curb intellectual property infringement by relying on general social education alone. The spread and proliferation of phenomena. Therefore, the deterrent effect of the law reflected by intellectual property judges in the process of judging cases is particularly important. Judges can make infringers pay the due price for their illegal acts by awarding compensation in civil cases and penalties in criminal cases, and deter them from attempting to continue infringement.

2. Enable the right holder to obtain sufficient compensation and reflect the due value of intellectual property rights. This is particularly important in intellectual property infringement cases. Because only when rights holders receive sufficient compensation will they have the ability and willingness to continue to defend their rights, and only by stimulating the enthusiasm of rights holders to defend their rights can we achieve the final victory in the war against infringement and piracy. You must know that the piracy and infringement camps faced by rights holders often have strong financial resources and huge power. They have a great advantage over the rights holders themselves. If we no longer receive the support of the judge in awarding compensation, then we do not need to expect victory. .

3. Educate the public and improve society’s awareness of intellectual property rights. The cases decided by judges all involve specific rights holders and infringers, including celebrities and well-known companies. These cases often attract widespread attention from the media and the public, so they have more publicity effects and have greater influence on the public.

4. Maintain a fair and legal intellectual property transaction order and promote the positive development of the intellectual property industry. Only when the price paid by infringers and pirates is higher than the price paid by genuine operators to purchase intellectual property rights, can a healthy and positive intellectual property trading market be truly established. Infringement and piracy harms more than just rights holders. It also severely dampens the enthusiasm of genuine operators to adhere to genuine operations and destroys the legal and fair transaction order in the intellectual property market. The intellectual property industry that has lost its market base is destined to fail to develop. The seriously low level of my country's scientific and technological research and development and cultural creation (completely disproportionate to our country's booming economy) has well explained this.

The civil compensation awards and criminal penalties made by judges in intellectual property cases can not only deter infringers and pirates, but also have a huge encouraging effect on rights holders and genuine operators, so as to further encourage them to continue to invest. Greater human, material and financial resources are needed to develop the intellectual property industry.

5. Promote the good development of intellectual property legislation. Intellectual property is always closely related to creation, and the purpose and result of creation is to produce new things. Therefore, judges hearing intellectual property cases always need to deal with new things. Intellectual property legislation can never keep up with the upgrading of the intellectual property industry. Therefore, how to apply the eternal principles in intellectual property law to the trial of specific new types of cases, and in turn promote the further development of intellectual property-related legislation, has always been a topic that intellectual property judges need to face. . Compared with other judges who hear non-intellectual property cases, the interactive relationship between intellectual property judges and the legislative body is more obvious, and the role of the judiciary in promoting legislation is also more obvious.

The unique advantages of judges in various intellectual property protection forces

1. More impartiality. Compared with various government departments, the courts are undoubtedly more impartial. Because the various government departments are always inextricably linked to the industries they oversee, many companies may have to go through these departments from initial approval to annual review every year. In addition, these competent departments have more or less departmental interests. It is difficult to say whether strict anti-infringement and anti-piracy measures are always in line with their departmental interests. The impartiality and independence of the court are, relatively speaking, much higher. This is also my personal experience in anti-infringement and rights protection work for many years.

2. More normative. Compared with administrative complaint procedures, court proceedings are much more standardized and transparent. The court proceedings are governed by the unified provisions of civil and criminal procedure laws in various places. Courts at all levels implement unified procedures, but the procedures for administrative complaints are different in various departments and places. In addition, even in the same department of the same local government, because different accepting officials have a grasp of the procedures, even the same official may file complaints in different places. There may be big differences in time or for different complainants. This makes it difficult for rights holders to have clear expectations regarding their complaints.

3. More serious. Judgments or rulings made by courts are undoubtedly more serious than administrative decisions made by administrative departments. First of all, administrative departments are often very stingy about issuing any written administrative decisions or responses to the complaints they receive. Secondly, even if they are issued, their legal effect is far inferior to the court's ruling documents - which can be used to immediately apply to the court for enforcement. Many infringement cases handled by administrative departments are ultimately left unsolved.

4. More powerful protection for rights holders. Administrative departments generally focus on punishing infringers. They are often unable to help rights holders suffer losses. Fines or illegal property collected from infringers can only be turned over to the national treasury or taken back to the administrative department itself, and cannot be issued to the public. rights holder. The court's compensation award can enable the right holder to obtain compensation, thereby enhancing the right holder's confidence in safeguarding their rights.

5. The resources that can be mobilized are more powerful and extensive. In the court system, each intermediate people's court has an intellectual property tribunal that can hear intellectual property cases. Now more and more grassroots people's courts can also hear intellectual property cases. The intellectual property division of each court has at least a collegial panel of three judges that can handle intellectual property cases. In this way, there are nearly a thousand judges across the country who are specialized in handling intellectual property cases. This is a very huge force because they are Nearly a thousand judges, not nearly a thousand clerks. Nearly a thousand presiding judges mean that there are nearly a thousand judges in the filing tribunal, nearly a thousand judges in the execution tribunal and nearly a thousand clerks working with them. This does not include the police officers and policemen of the Public Security Bureau who work together in criminal cases. Prosecutors from the Procuratorate; and this team covers all parts of the country and handles cases in accordance with unified laws and procedures. What's more important is that, in addition to using its own resources and the resources of collaborative departments, the court also greatly mobilizes the power of rights holders, lawyers and even investigation companies. If the rights holder wants to sue, he or she must first investigate clearly the facts of the infringement and the infringer by himself or hire an investigation company. The lawyer will organize the materials clearly according to the requirements of the court and cooperate with the court in hearing the case.

This has virtually expanded the anti-infringement force several times, and these different forces are all taking action organically, coordinately, and efficiently under a unified legal framework and in accordance with unified procedures. I would like to ask, which administrative department can have such powerful energy?

Therefore, the court is undoubtedly, and should be, and has the ability to be the most powerful force among various anti-infringement forces.

6. Greater influence on society. The media also frequently reports on the anti-piracy actions of various administrative departments. However, the reports are all routine, and readers or viewers will not feel that these actions have anything to do with them. The individual cases heard by the courts are different. They will involve specific infringers and specific rights holders, including celebrities and well-known companies, which can attract public attention. The media will often take the initiative to follow up, interview and report on such cases. For example, the series of copyright infringement cases involving karaoke bars in the past two years have aroused widespread attention and heated discussions in the society. This kind of effect cannot be produced by administrative cases. Therefore, the court can play a very unique and important role in promoting and cultivating the public's awareness of intellectual property rights through the trial process and judgment results that convince people with reason.

7. Constantly effective. The anti-piracy and anti-infringement actions of administrative departments often have a very distinctive feature, that is, they have strong stages, such as 100-day actions and centralized rectification. Such terms are not uncommon. In the concentrated action stage, we can generally feel the momentum of the action. But once the action is over, everything goes back to how it was before. This phenomenon does not exist in the courts. Except for the court's reluctance to accept new cases at the end of each year (which can usually be solved by setting up the case number for the coming year), the court will accept it at any other time as long as the right holder files a lawsuit. In other words, the court's reaction The infringement work is long-term and effective, and there are no big ups and downs like the administrative departments.

Courts can play a greater role in intellectual property protection

There is no doubt that everyone currently recognizes that courts are an important force in intellectual property protection. Judicial protection and Administrative protection also constitutes my country's unique intellectual property protection system. But this positioning still seems insufficient for the court. The author believes that the role of courts in intellectual property protection should be "the most important and dominant."

In all countries around the world, courts are the leading force in intellectual property protection, and rights holders suffer The first thing that comes to mind after an infringement is definitely the court. The administrative department may only play an important role in a certain aspect and at a certain period of time. In view of this, our country has also proposed an intellectual property protection system with Chinese characteristics that attaches equal importance to judicial protection and administrative protection, and in this system, I feel that the government departments are dominant. Regrettably, this Chinese characteristic has not shown its unique advantages, resulting in our country's intellectual property protection work being criticized by the international community and domestic rights holders.

As mentioned above, in terms of capabilities, the courts are already the most powerful force for protecting intellectual property rights, and their actual role is growing, but they have not yet become a truly leading force. The following author will mainly elaborate on his views from two aspects:

1. How the court can further play its role

First of all, the court should fully realize its powerful energy and its own subjective important position, and have the courage to give full play to this energy and assume the leadership responsibilities that it should bear.

The author found that most of the articles summarizing the work of the court emphasize how many intellectual property cases the court accepted this year, how many were concluded, and how many were mediated, which have increased significantly compared with last year, thus explaining that the court has The protection of intellectual property rights is getting stronger and stronger, and the work is becoming more and more effective. At the same time, there are also many articles that study specific legal application issues. However, there are few or even no articles focusing on the actual social effects of court decisions or mediation.

For example, a court made a judgment on an infringement case, and the media also reported it extensively.

What happens next? Has this type of infringement changed in society? Has it decreased? Or has it increased? Or has there been no change at all? If it has decreased, is it really because of the positive impact of the judgment? If it has increased instead , then what is the reason behind it? If there is no change, does that mean that the judgment has no effect? ??If the judgment does have an effect, then has the form of infringement changed, or whether the subject of the infringement has changed , if so, is this used to evade legal sanctions? What should the court pay attention to in future judgments?

Few judges pay attention to or study these issues. In other words, even if there is, this kind of attention and research is not sufficient, because even a lawyer like the author who specializes in intellectual property litigation is not aware of the existence and results of this kind of research.

What problem does this illustrate? This shows that our courts have a passive way of thinking from a subjective point of view, that is, they tend to place more emphasis on how many cases and disputes have been resolved. The more resolved, the more work is done. There are achievements, but it does not emphasize whether the court's judgment has an impact on society, what kind of impact it has, and how to actively guide society to develop in a more fair and just direction through the court's judgment.

The number of intellectual property infringement cases heard by the courts has increased year by year. On the one hand, this illustrates the work achievements of the courts and the increasing enthusiasm of rights holders to defend their rights. On the other hand, it also illustrates the infringement in our society. The phenomenon is also increasing - at least not significantly decreasing. In other words, the infringers were not deterred by the court's decision, and the infringement was not deterred.

The most obvious example is that there are many defendants in infringement cases who are sued multiple times, that is, they infringe again after being convicted, convicted again, and commit the crime again. However, the sentences given by the vast majority of courts to them are not becoming more and more severe, but more and more lenient. Why? Because the presiding judge’s focus is not on how to prevent the infringement from continuing to occur. They believe that this is a huge issue that the entire country has been trying to solve for so many years. Can our court alone solve it? Their focus What is considered is that the defendant should not be unable to bear the burden of being sentenced too many times and receiving too much compensation. Therefore, he will be dissatisfied with the judgment and appeal, which will affect the conclusion of the case and ultimately affect the smooth resolution of individual disputes.

This kind of thinking mode that attaches importance to the resolution of individual cases but ignores the impact of individual cases is relatively typical among current judges. This shows that the courts still do not have the awareness of "protecting intellectual property rights, who else would I do?" The views of most judges still remain at this level. Courts mainly resolve disputes. There are many disputes that courts need to resolve. In addition to intellectual property disputes, there are many other more important disputes that need to be dealt with. Intellectual property protection is about macro issues. , the competent government departments are responsible for considering it, and the court’s duty is to properly handle the disputes that come to the door to satisfy both parties.

Over-emphasis on the function of courts to mediate disputes, and emphasis on making both parties obey and satisfied with the judgment results. This positioning actually confuses courts with arbitration institutions and residents’ mediation committees. The court is by no means just a place to mediate disputes. The status of the court is much higher. It is the leading force that leads society to develop in the direction of fairness and justice. Wrong and illegal behaviors, especially those malicious infringements, should be punished Sanctions and condemnations should be imposed, while righteous behavior should be praised and encouraged. The court has the ability and responsibility to do so.

If the court truly establishes a me-centered approach and proactively considers how to promote the positive development of my country’s intellectual property protection work through judgments or other work, it will no longer be satisfied with how many cases it has handled. Then it will be much easier to achieve this goal in terms of measures. The author only makes a few relevant suggestions here:

First, significantly increase the intensity of statutory compensation awards. Especially for those defendants who have repeatedly violated the rights of others; we must change the unreasonable practice of uniformly lowering the compensation in all types of infringement cases.

Second, use judicial advice more often. For those defendants who have repeatedly committed crimes, judicial suggestions should be issued to their industry authorities and industry associations to remind them of their concerns and suggest that they take appropriate measures from the perspective of industry and industry to cooperate with the court to prevent the continued occurrence of infringement.

Third, strengthen the enforcement of court rulings.

Nowadays, many intellectual property rights holders have no confidence in legal rights protection, mainly for two reasons. One is that the compensation awarded is too low, and the other is that the compensation awarded is so small. As long as the defendant does not take the initiative to perform, it will be difficult for the court to enforce it. The persons subject to execution in intellectual property infringement cases are completely different from the persons subject to execution in ordinary civil infringement cases or contract dispute cases. They all engage in piracy and infringement and seek huge profits through piracy and infringement activities. Court enforcement has always been a long-standing problem. But no matter how difficult it is, enforcement of intellectual property infringement cases must be focused. However, what is regrettable is that what we often see in real life is that on the one hand, pirates and infringers continue to openly produce and operate, in other words, they continue to engage in piracy and infringement activities, but the rights holders pay tens of thousands of yuan in compensation. , but helplessly couldn’t get it. How can rights holders not be disappointed in such a situation?

Fourth, we must pay attention to cooperation with the public security department. In the process of hearing intellectual property infringement cases, the court will find many signs that the infringer's behavior has constituted a criminal offense. In this case, can the court go one step further and transfer the clues to the public security organs for further processing?

From the above author's analysis, we can see that the court is actually in a central position and can mobilize all aspects of We work together to protect intellectual property rights and combat infringement and piracy. As long as the court is ideologically emancipated and has the courage to truly assume the responsibility of a leader, it will be able to mobilize doubled power and release doubled anti-piracy and anti-infringement energy. At the same time, there is no need to make major adjustments to any existing system. There is no need for the state to increase large investments.

2 As long as the courts assume the leading responsibility for intellectual property protection, our country’s intellectual property issues will be better solved.

Why do you say "as long as"? The reason is very simple, because as long as the court's award of compensation is reasonable, well-executed, and can deter infringement, then a considerable number of infringers will definitely be prompted to weigh the rights of infringement. After paying the price, the attempt to continue infringement is given up. As long as the court's compensation award is reasonable and the execution is effective, it can encourage the rights holders to be enthusiastic in safeguarding their rights, which will surely attract more rights holders to take up legal weapons and invest in the infringement. In this war against piracy and infringement.

As long as the court’s award of compensation is reasonable and the execution is effective, and the infringers are constantly ordered to pay compensation and pay an increasing price for infringement, their strength will be continuously weakened and their ability to engage in infringement and piracy will also be reduced. will become weaker and weaker; as long as the court's compensation awards are reasonable and the execution is effective, the right holders can continue to receive compensation, and the value of their rights is increasingly reflected, their strength will continue to increase, and their ability to engage in anti-infringement and anti-piracy will continue to increase. Naturally, it will become stronger and stronger.

If such a trend in which we are getting stronger and the enemy is getting weaker is continuously consolidated, maintained or even strengthened, then what reason do we have not to believe that intellectual property issues will be resolved in the near future? Can it be completely solved? On that day, knowledge, creation, and culture will be fully respected in our country, and all the ingenuity and ancient wisdom of our 1.3 billion Chinese people (and no longer just cheap Labor) can be brought into full play, so what reason do we have not to believe that China - the king is back!