On May 28, the Third Session of the Thirteenth National People's Congress passed the Civil Code of the People's Republic of China (Hereinafter referred to as the Civil Code). This important law is undoubtedly of epochal significance. So, what are the highlights of the newly promulgated Civil Code? What are the implications for the intellectual property system? Professor Liu Chuntian, President of the Intellectual Property Law Research Association of the China Law Society, Dean of the Intellectual Property School of Renmin University, and President of the Beijing Sunshine Intellectual Property and Legal Development Foundation clarified his own opinion in the "China Intellectual Property News" on June 10.
Professor Liu Chuntian believes that intellectual property to the Civil Code is like a river flowing into the sea; the Civil Code is the legal matrix and spiritual home of intellectual property. 
Q: How to evaluate the newly promulgated Civil Code? What impact does the promulgation of the Civil Code have on the development and improvement of the intellectual property legal system?
A: The Civil Code publication on the 71st anniversary of the People's Republic of China founding is of great significance. It has constitutional significance. The Constitution is the general statute of the country, which stipulates the basic economic and political system of the country, the relationship between the country and the people, and the basic personal, economic, and political rights of the people. Personal and economic rights are private or civil rights, also known as citizen rights.
The Civil Code can be described as the civil rights part of the Constitution and the general statute of civil rights. In the past, civil rights were dispersed by separate laws, but the Civil Code matched the market economy, making a systematic legal expression of the whole picture of the market economy for the first time, delineating a complete territory for private rights for the first time, and making complete norms for the scope of private rights, the rules for exercising them and the responsibility for violation.
The Civil Code erects a legal boundary between private and public power. It shows the following picture: under our country, public power and private rights, the government and the people are a community of common destiny and mutual dependence and have their own exclusive areas and their own rules of conduct.
The Civil Code is the general outline of the rules of private rights and private behavior. It is closely related to the fate of 1.4 billion people, and everyone's basic necessities of life and birth, old age, illness, and death. Unprecedented in New China, it is a veritable national heavy weapon and has epochal-making significance.
Intellectual property rights are civil rights. In China, the patent law, copyright law and trademark law and other separate laws of intellectual property rights are an organic part of the civil law, and they are part and whole relationship with civil law. The Civil Code plays a fundamental, systematic, overall, and decisive role in China's intellectual property legal system. Like the brain, nerve and muscle system, the Civil Code confirms the protection object of intellectual property rights, the nature of private rights, the subject of ownership, the rules of exercise and the system of responsibility through general provisions and divisions. The spirit, purpose, guiding ideology and legal principles of civil law are systematically projected and penetrated every system and rule of intellectual property law, becoming the guide and master of intellectual property. The Civil Code is the legal matrix of intellectual property, laying the foundation for the development and improvement of the latter, clarifying the thinking, pointing out the direction, and defining the scope, and it is the spiritual home of intellectual property.
Due to historical reasons, China's civil legislation is backward, and the legislation of the separate law of intellectual property is carried out independently of civil legislation, resulting in a systematic and innate lack of civil law thinking and infiltration of institutional nutrition. The promulgation of the Civil Code will help to change this situation.
Q: What are the highlights of the provisions concerning intellectual property rights in the Civil Code that deserve attention?
A: The biggest highlight is that the Civil Code establishes the logical relationship between intellectual property and civil law, as well as confirms the nature and defines the scope for the future of intellectual property law, including the formulation of basic intellectual property laws. The general provisions are part of the outline, and Article 123 is decisive for the outline of the provisions on intellectual property rights. With its leadership, other specific provisions in the sub-compilation, such as mercury spilling to the ground, are logical. According to some statistics, there are more than 50 provisions about intellectual property in the Civil Code. I took a cursory look, and that's not all. My outstanding feeling is the interaction between intellectual property and the Civil Code, the intellectual property to the Civil Code is like a river flowing into the sea. Two points stand out.
The first is to demonstrate the fact that the main body and the humerus of intellectual property have been integrated into the civil law system. The Civil Code from the general provisions to the sub-provisions, including civil subjects, civil rights, ownership, contracts and other legal acts, marriage and family, inheritance, tort liability and other systems, is a blend of water and milk, and has systematically incorporated intellectual property into it, which is appropriate and harmonious. This situation shows that as "authentic" civil property rights, including the substantive content of intellectual property rights such as patents, copyrights, trademark rights, and trade secrets, are already an integral part of the Civil Code system, and the rest are non-fundamental norms such as specific rights details and procedural ones, are left outside the Civil Code and have nothing to do with the overall situation, thus dispelling various concerns that intellectual property are special and not suitable for civil law regulation.
The second is the inclusion of the substantive content of intellectual property in the Civil Code, which can realize the scientific allocation of institutional resources, promote the systematization of intellectual property norms and even the normalization of terms, reduce legal costs, and improve the functions of the system. For example, in the subject system, initially, the trademark law and patent law violated the principles of civil law and set up trademark and patent subjects on special grounds. The Patent Law has so far refused to give up the terms of the planning system and used the non-legal language of "unit" and "individual" to express legal persons and natural persons. The promulgation of the Civil Code will inevitably require the patent law to modify such fallacies.
Systematization is the requirement of technology and system. In the final analysis, it is the objective requirement of economic laws. The purpose of technological progress and institutional innovation is to improve efficiency and reduce costs. The reason why I attribute technology and system to the same problem is because the essence of the two is the same. Both technology and system are norms for people, and the objects of norms are people's behavior. Therefore, cost performance becomes a unified standard for measuring the pros and cons of technology and system. Contract law is an example. At first, there were three contract laws, namely the Economic Contract Law, the Foreign-related Economic Contract Law, and the Technology Contract Law. This absurd situation lasted for nearly 20 years. Apart from the waste of institutional costs, the loss of economic practice was immeasurable and also hindered the economic progress.
In the final analysis, technology and institutions are productive forces. Pursuing the systematization of intellectual property law, and then integrating it into the civil law system, is not only an institutional innovation, but also a technological innovation. It integrates with economic activities with the power of norms and can undoubtedly be transformed into a huge productive force.
Q: In the compilation of the Civil Code, the intellectual property academia has a high voice for the independent compilation of intellectual property rights in the Civil Code, but it has not been fulfilled. What do you think the main reason and how do you view this issue?
A: First, it is a fact that intellectual property belongs to private rights, which is not only specifically declared by the WTO, but also recognized by the laws of various countries in the world. Secondly, systematization is the best choice for civil law, and its carrier is the Civil Code. As a new form of property, intellectual property is integrated into the Civil Code, which is justifiable and objectively feasible. On the one hand, the challenge of legislation is the systematization of intellectual property law itself, and the technical problems of its integration into the civil law system. On the other hand, the potential reason is that our country's Civil Code preferentially refers to the thinking from the German Civil Code, while the German Civil Code 120 years ago, there was no intellectual property rights. Judging from the special explanation given by the legislature for four reasons why intellectual property has not been independently codified and "codified", the legislature attaches great importance to and has also done research. In this regard, I believe that these reasons are relative conditions, not immutable, so I advocate a positive attitude.
In a word, whether from a logical or a practical perspective, the integration of intellectual property law into the Civil Code is an objective requirement for technological progress and economic development, and it is the general trend. As mentioned above, the essence of intellectual property law has actually been "codified", and the rest is a formal systematization task. The market economy is a complex system. To develop the market economy, there must be an equally complex and subtle civil law system that matches it. The Sino-US trade dispute tells us that market competition is ultimately the competition of science and technology and intellectual property rights. To ensure incentives for innovation, adequate and effective protection of intellectual property rights must be implemented. Incorporating intellectual property rights into the Civil Code not only has formal significance, but also improves the legal level of intellectual property rights in legislation, which is of great value and substantive significance.
Q: What are the good practices and experiences in intellectual property legislation abroad, and how should our country learn from it to further develop and improve our country's intellectual property legal system?
A: According to the thinking of the Civil Code, there are two main aspects of foreign experience that can be used for reference. One is the intellectual property laws integrated into the Civil Code. Some developed countries such as Italy, Spain, BRICS Russia, the Commonwealth of Independent States, and Vietnam have adopted this approach. Among them, Russia is the most thorough, completely abolishing the separate laws of intellectual property and putting them all into the Russian Civil Code, which reflects the legislative trend of the civil code in the new technological era. On the other hand, it is the systematization of the separate laws of intellectual property itself, the concretization of norms, and the densification of clauses, which make the law more convenient to operate. Taking copyright law as an example, the British copyright law is complicated, with nearly 170,000 words translated into Chinese, and the American copyright law is nearly 200,000 words. Even in developing countries, and even in Taiwan region of our country, the length of copyright law also shows a trend of expansion. On the other hand, since the promulgation and implementation of our country's Copyright Law, the technology and economy have undergone great changes, but it has remained at a few thousand words for 30 years, which is behind the times.
Visibly, our country's intellectual property law construction, whether it is to improve the systematization, integrate into the Civil Code, or strengthen and improve the regulatory capacity of separate laws; whether compared with developed countries or developing countries, we have a lot of room for improvement. This is incompatible with the status of the world's second largest economy and the implementation of the innovation-driven development strategy and the vision of building an innovative country.
In addition, with the rapid development of the data economy, it has become increasingly difficult to monitor technology by traditional means, and a new trend has emerged in the protection of innovation achievements. Trade secrets have increasingly become an important means of enterprise technology protection. For example, more than 90% of TSMC's technology is protected by trade secrets. Both the European Union and the United States have begun to attach importance to trade secret law, especially in the United States, which has a tradition of case law, and implemented the written Trade Secret Protection Law in 2016, which has far-reaching influence.
Overall, China's intellectual property legislation and revision work behind the requirements of technological progress; behind economic and social development; behind the international community; behind our country's national status and expectations. The 40 years of reform and opening-up policy have made China rich in resources and talents in the field of intellectual property. If the legislature emancipates its mind, allocates it properly, and gives full play to their ingenuity, it is enough to build a suitable intellectual property legal system.
Note: This article was first published in “China Intellectual Property News” on June 10, 2020. The author authorized IP to push the uncensored version. This article is reproduced from the public account “Zhichanli”.
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