Author’s note: This article was originally a contribution to the law firm’s publication at the beginning of last year, which was an assigned task. The “original version” of the article was titled “Concerns over the vicious expansion of intellectual property right (presenting a perspective that worries about the prospect of ruling by law).The writing style of the article was compelled to cater for law professionals whose taste is always related with those vulgar and hypocritical “Three Views (view of world, view of life and view of value)”, therefore was unbearable. I thought that this article was going to lie forever at the deep end of the file path and would never be exposed, but someone holding the same view enthusiastically invited me to offer a contribution, and it would be ungraceful not to accept it, thus I rewrote the article from start to finish in a different language and adjusted my position, which was called “retracting testimony” in law terms. Since the structure of the article had already been established, the rewriting may not be complete, for which I hope readers can excuse me.
Abolishing intellectual property rights
Since the beginning of the 21st century, the term “intellectual property right” has been highly popular, continuously being a hot topic and in the headlines of media. Events such as Microsoft fighting against piracy systems, experts and professors being suspected of plagiarism, and the IPAD trademark right controversy that has recently attracted public’s attention, have clearly interpreted that in the first decade of the new century, the concept of “intellectual property right” has gradually come into public’s mind, and has become an indispensable part of the so-called ruling-by-law conception a civil society by law circles.
In the course of defending and arguing in complicated events, legal experts, products distributors and producers, and even infringers of rights often quote classical concepts or ideas from authorities and advocate multiple legal principles and articles, public order and good customs. However, will the issue of diverse disputes of intellectual property rights really be progressively clarified along “the deepening of ruling-by-law concept in people’s mind” or “the steady improvement of related systems” described by the elites? To present my appreciation of those elites’ enthusiasm and show them the whole process of the extinction of intellectual property right, I would like to briefly illustrate the structure of intellectual property right.
1. Forms presented
Some theorists prefer to employ “historical origin” to illustrate that, in western societies, the protection of intellectual property rights has a long history and intellectual property right is in a better state, thus they call for our country to strengthen the legal “all-round protection” of intellectual property rights. In my opinion, law professionals simply exaggerating the gap between China and the West and examining this issue merely from the perspective of law- making techniques can’t fundamentally solve the problems facing them. From our perspective, several principal issues along with the historical evolution of the concept of intellectual property right should first be clarified.
(1) Classical forms
“Intellectual property right” is not a term that can be fabricated as something with “long history” by digging the origin of this modern concept, but a concept that has developed from nothing, and from blur then slowly becoming clear. It is widely accepted that intellectual property rights in human societies all originated from one thing—“exclusive rights granted”.
The following is the brief description of the three ancient embryo forms of intellectual property right:
a. Exclusive trade right
Exclusive trade right is called “Zhuan Li (special benefit)” for short in Chinese. This concept is different from “Zhuan Li (patent)” under the category of modern concept of intellectual property right, but they share the same core, that is, an entity exclusively and steadily obtains interests from special monopolized business.
In ancient China, there existed the state-monopolized salt and iron trade, but ancient Chinese government was a political combination of the emperor family and bureaucrats, therefore the so- called state trade was actually that bureaucrats on certain positions were granted “bureaucratic trade rights” by the emperor family, and backed by the special rights they then independently conducted business, or “conditionally” franchised to some special groups but shared the majority of profits.
Besides bureaucrats and franchised merchants, ordinary people had also a few opportunities of being franchised with exclusive trade rights. For instance, in cases that the tribute products selected by the emperor himself, such as tribute alcohol or fruits, the emperor family wanted to purchase these products in some particular areas, which provided the local producers opportunities of long term exclusively trading with the emperor family.
In the slavery society of Roman Republic, trading slaves was also a hidden exclusive trade right. According to the Roman law, captives of enemy troops and debtors who were insolvent were automatically lowered to slaves, which became a legal way of making money from trading slaves for military officers and merchants who were granted by the core ruling group of the slaveholder class in the state machine.
b. Technical invention right
With the advancement of technology, exclusive right not only provided a way of obtaining benefits from trading products but also related to the issue of production technology.
Technology could add considerable value on products; therefore, production technology became the fundamental element for manufacturers to make profits. Facing the plunder of profit margin from powerful middle-level rulers—low level bureaucrats and aristocrats, manufacturers strove to protect their production technology from being disclosed to competitors, which was the
only thing they could do, but in a highly hierarchal society controlled by privileged classes, this could only be done by obtaining special rights from high level aristocrats or the emperor family.
For example, King Edward III of England granted craftsman John Kambi in Flanders “exclusive rights” to his dyeing, weaving and sewing technology. Another example is the weaponry shops that were endowed with names by the emperor in ancient China enjoyed the special permit to possess exclusive rights to their technology secrets.
c. Reproduction right
After mankind mastered the skills of widely using all kinds of media (from parchment, bamboo paper to paper)to disseminate information, ancient publication, that was transcription, and later block printing and letterpress printing had been invented in social history. However, reproduction right served as an important means to circulating thoughts was unexceptionally suppressed by privileged classes either in the West or in China. From First Qin Emperor burning books and burying scholars to Germanic tribes invading Roman and burning numerous books, plenty of thoughts expressed in human history, either cream or dross, were all burnt to ashes. These lead to a conclusion that privileged classes are essentially afraid of thoughts circulation which threats their ruling status.
In ancient society, the purpose of publishing books in all nations, which was different from making commercial profits of modern people, was to gain great popularity in comparatively isolated societies and thus earn credits for political promotion by expounding their doctrines, expressing their political viewpoints and explaining philosophical findings; and publishers of books, restricted by the ancient economical scale, buying power, and level of literacy and knowledge acceptance of general public, could hardly earn money comparing to today’s market, furthermore they had to take political risks of publishing banned books. Hence, if a book writer could avoid touching the sensitive nerves of privileged classes by adopting artful words, or if some of the writers’ views of values conformed to those of the rulers, this book could be possibly granted special permit by the ruling group to be safely printed on a large scale. From this it can be concluded that the nature of exercising these rights was incommensurable with that of today’s publication industry.
(2) Modern forms
Since entering modern society, western feudal aristocratic classes and China’s privileged groups enjoying emperor power had been crashed down by the waves of social reform. The classical social order was destroyed and a new one accommodating to market economy was established. The embryo of Intellectual property right in ancient society was liberated from the governance of privilege powers and thus entered into a relatively free-developing period during which many new rights came into being.
Authors and publishers started to follow market rules, looking for profit-making channels. For instance, authors targeted specific readers according to the movements of mainstream thoughts of the society and wrote popular books to widen the base of readership, while publishers were striving to make commercial promotion of the yet-to-be published books, even fighting with the authors for the increasing market share and gradually developing as professional publishers. Since publisher is at the last stage of the market development process and thus in a competitive economic position, it was very difficult for the author to reach readers with large scale publication of the book if not via the publisher. Hence, in the transition period from early modern to modern society, copyright was increasing relying on publishing (reproduction) right and became the latter’s dependency, so authors group—creators of books as intellectual products, being reluctant to be exploited of their labour works, started to fight for the profit with publishers and obtained right of authorship, right of publication, right of alternation and right of integrity conferred by civil laws and commercial law. Through the fighting, copyright and reproduction right commenced separation and even confronted each other since then. Later in the period of contemporary society, because of the huge progress in science and technology and the emergence of new platforms such as sound recording and internet, the scope of copyright has been broadened, being divided into personal right and property right. Authors thus could enjoy new rights including reproduction, broadcasting, exhibition, performance and information dissemination on internet, which showed authors the bright future of the expansion of their legal interests.
b. Right of business secrets
To meet the challenge of fierce competition, classical firms, such as China’s century-old shops and family workshops in Mediterranean region, had to abandon their system of sternly keeping business secrets within the family, teaching their know-how to outsiders whom they have employed for long time, but requiring them keep strictly the secret of production technology. However in modern society this has met great challenge—the mobility of employees has unprecedentedly increased, therefore, to prevent their secrets (not limited to secrets of production technology) from being disclosed as a result of employee turnover, modern companies have developed a tradition of signing non-disclosure agreement with their employees. The appearance of this non-disclosure agreement means that a civil subject is legally entitled to exclusive rights to its technology or business information that falls into the category of business secrets, hence, right of business secrets has been separated.
c. Trademark right
In old days, “good name” of a firm in people’s minds was the original form of good will. If product quality of producers gained positive comments, their business would stand long in that area, thus there were malicious people who racked their brains to steal others’ firm names and brand names. Such things happened so frequently that even the well-known “Tong Ren Tang” could not escape from being attacked. In Qing Dynasty, Tong Ren Tang as a pharmacy of emperor families exclusively enjoyed handsome profits. Many pharmacies outside Beijing then renamed themselves as “Tong Ren Tang”, which led those local governments to issue an order that any pharmaceutical firm that illegally used Tong Ren Tang as its firm name would be prosecuted during the reign of Emperor Xian Feng and Emperor Tong Zhi. There were actually
some pharmacies were closed and their owners paraded through the streets for three days. In modern society, goodwill has further become firms’ intangible asset, the important soft strength that can seize market opportunities. During the course of time change, firm name and brand name have evolved from public’s natural cognition within limited scope and privilege protection into firm and product identification tools under civil laws and commercial law, which provides safeguard for modern businesses to better build up their images and preserve business opportunities. Hence right of firm name and right of trademark came on stage. (Although right of business name is governed by the business name administrative system in the current Chinese administration system, not in the category of intellectual property right, the unbreakable link between firm and its products cannot be cut.)
d. Patent rights
It had been a long process for exclusive trade right in old society to develop by degree from a mere power-money exchange into mental work that produces technical intellectual works. After entering early modern times, technology patent that freed from the restriction of the freezing society had changed its nature from a pure right of close-door production into a dual form— keeping production technology in secret but widely opening distribution. In new times, excellent product is not monopolized by aristocrats any more. Some well-known western legal experts have confirmed the change of nature of patent from different perspectives. For instance, Bantham’s Utilitarianism affirms the reasonableness of benefiting from patent; Rouseeau who focuses on public benefits advocates social public benefits and holds that patent holders have invented technologies that can promote social progress, from which, they should certainly benefit, however, technology should be applied in the course of time by the whole society, so patent holders should not be over protected as this develops technology monopoly. Hence, regulations on patent strike a balance among these viewpoints by establishing “short term protection system” of patent. The article 24 of China’s “Patent Law” stipulates that “The duration of patent right for invention shall be twenty years, and the duration of patent right for utility models and patent right for designs shall be ten years, counted from the date of filing”. Patent right has become the most open, the widest and the one tends to infinitely expand most among all branches of intellectual property right, which is reflected not only in the separation of commodities’ utility and ornament, but also more in the split of the rights attached to the commodities and the commodities themselves.
Today’s intellectual property right has fully presented the trend of expansion, overflow and commercialization of rights. This phenomenon that rights depart from material bodies, to which rights were originally attached, and utility has diverted from the track of technology progress advocated by intellectual property right, and has created a number of economic chains running in the grey areas of law, which has seriously restricted the further creation of intellectual products. Anyway we are delighted to see this kind of social phenomenon which is beyond the scope of academic interpretation.
2. Malevolently exercise
Since intellectual property right is characterized by “authorized permit”, exercising an intellectual property right without authorization would be committing an “infringement of right”. Holders of all sorts of intellectual property rights are entitled to demand infringers to take remedy measures or to compensate for the loss incurred. However, some smart people who “know pretty well market laws” have realized that this is another perfect area that can generate profits, therefore, to deal with the issue of infringement of right, they started a series of “skillful exercises” by taking advantage of the void areas of law and the situation that general public relatively lag behind in terms of the awareness of law.
In today’s society, the typical exercises models are as follows.
1) Enclose land
After Manchurians entered San Hai Guan, the aristocratic Manchurian slave-holders began to transform the production duty of their soldiers from hunting into farming in order to adapt to the life style and economic development model of Central China. They asked Manchurian mounted soldiers, who were arranged by the order of their military achievements, to run horses around a waste land. Then the soldiers were allowed to possess the land they enclosed in a time that was just enough for burning one piece of incense. This model has been successfully applied in the area of intellectual property right, mostly in patent right, especially patent for exterior designs. The application principle is, by taking advantage of the coarseness and obscure of appraisal standard for a new special area, to fabricate multiple, ordinary, non-novelty objects with great possibility of coinciding with latecomers’ perceptions, consequently, the similar objects created by latecomers would be the targets being charged of infringing patent rights, which is to develop domain hegemony.
For instance, various artistically-designed fonts created by font design companies, or all kinds of designs on plastic bags of bamboo mats can become patents. The daily work of the employees in these design companies is using “their sharp eyes that are good at spotting problems” to seek products that are similar with their companies’ patents and initiate a lawsuit. In the previous business of our law firm, a font design company once sent us a “negotiation letter” in which they sternly blamed our advisory firm “illegally used their fonts” and recommended our firm contact them and negotiate on purchasing their fonts. Through the naked eye, many lawyers first reacted that “they are really similar”, but I examined carefully by amplifying, spinning and projecting those fonts and found the shape, structure and artistic characteristics of the fonts that are suspected of infringement of rights are totally different from those of that company’s original fronts. If the party blackmailed is poor in pressure resistance, it might choose to “make concessions” in order to “lower its operational risk”.
2) Cast net all over
If the model of enclosing land, which is characterized by “theory flooding” and “protection coverage beyond reasonable range”, is highly technical and thus difficult to operate, there is another simpler and clearer model–if a hunter cannot dig a huge trapping pit, he may still trap something by digging multiple small pits. To prevent other firms from maliciously using similar product trademarks, a firm normally registers many identical names. For example, the company producing famous brand name milk candy “White Rabbit Toffee” has registered not only “White Rabbit Toffee”, but also “Black Rabbit Toffee”, “Little White Rabbit Toffee”, “Little Grey Rabbit Toffee”, etc. Since there is no restriction on doing this, this kind of “just in case” practice in trademark and brand name registration can also potentially hamper the latter similar firms’ rights to use certain names for the same type of product. For example, a company has registered its hair beauty product’ trademarks as “美丽”, “美丽MEILI”, “美丽空间” and “魅力”. If the name of
“美丽 ABC” becomes a well-known brand name, then“魅力ABC”, a combination of commonly-
used words but with similar pronunciation, can also be judged as offending the “core identification”. Therefore, this model of casting net all over will make numerous manufacturers producing same types of products in the same area unable to use simple and clear words like“美丽”, “魅力” or “MEILI”. Even adding more noun affix cannot completely avoid lawsuit risk.
For this reason, widely registering popular-word trademarks, to some extent, provides firms the possibility of legally controlling wording.
(3)Stay by a tree stump waiting for rabbit
If the above two approaches are considered covering too wide and still difficult to operate, here is the third operational model: contracting covering area, “focusing and attacking accurately”, possessing a name that has great potential in bringing benefits in the future and reaping long term benefits.
Last year a Chinese NBA player named Jeremy Lin became a star overnight. Because of his extraordinary performance in New York Knicks in a short period of time, the whole basketball media world turned the spotlight on him. He would never imagine that at the first moment when his name shone, a Mainland Chinese businessman registered his name as a trademark.
The first person who spotted the value of the three characters “林书豪”was Yu Ming Jie in Wu Xi. According to some media Yu Ming Jie was the owner of a sporting products firm in Dong Sheng Industrial Zone of Dong Gang Town, Xi Shan District, Wu Xi. This firm was established in 2002, mainly producing sporting articles like basketballs, footballs and volleyballs, etc. In July 2010, Yu Ming Jie accidently found an excellent player Jeremy Lin (at that time he was still playing a small role) when he watched TV. Based on his experience he believed that it would be very likely that, not long, Jeremy Lin would become another Chinese NBA star after Yao Ming shining all over the world.
Hence, thinking that it was always advantageous to make the first move, this sporting products firm registered “Jeremy S.H.L林书豪” as its trademark, which covered Class 25 and Class 28. Class 25 mainly included clothing, footwear and headgear and Class 28 included sporting balls, game machines and toys and so on. The right to exclusively use the trademark validated from 7th August, 2011, and will expire on 6th August, 2021.
The legal Consequence is that Jeremy Lin himself would have to ask for authorization from this Wu Xi firm if he intends to go to Mainland China do business and use “Jeremy S.H.L林书豪” as his business’ trademarks.
As is known to all, it’s an international common practice for sports celebrities to use their own names as trademarks, like Li Ning. This often binds personal images and brand names of sporting products together, which will help build up good brand name and exploit new market, but Jeremy Lin might not have this kind of fortune. Mr. Yu’s discerning eyes have spotted the talented, but he forces Jeremy Lin “himself” to ask for “special authorization” to use “his” own name as trademarks if he wants to do business in Mainland China. This kind of “Li Gui killing Li Kui (the genuine killing the fake)” model will surely stimulate many others to imitate. NBA has 30 teams and each team has at most 15 registered players. That means every year there will be in total less than 450 players in NBA, the one with huge market potential. It can be predicted that in the near future, if there is market demand, people would rush to register all of the players’ names.
(4) hook volunteers
There was once a famous case that a well-known internet novel website—XD Literature (The name of the website is not real because the following discussion concerns about this company’s business secrets.) sued against Baidu File-sharing Database. XD Literature complained that Baidu File-sharing Database contained lots of files which were the e-books covered under XD’s copyrights, while Baidu argued that “File-sharing Database is an open platform where internet users freely uploaded files, and every day there are thousands of files uploaded, with this number performing complete censoring is far beyond Baidu’s work abilities and duties”.
XD company was not satisfied with this response. Their e-book writers also infuriately voiced that they were “emotionally hurt”. Driven by the common interests, these writers stood by XD company, requiring Baidu Database delete the files that infringed copyrights.
It was concluded by Baidu deleting the files that were suspected of infringement of rights. Nevertheless, it is necessary to explain clearly about how this happened.
Internet novel websites represented by XD Literature usually charge fee on VIP chapters. For example, readers can read the first 200 chapters of a 500-chapter novel without paying any fee, but have to pay to read the last 300 chapters which are set as VIP chapters. This way of fee- charging came from a trick adopted by storytellers in old times—buckling, that is, when the story came to a very exciting part, suddenly storyteller hit a wood block and said “to be continued ”, which was to tantalize audience to come tomorrow, thus sustainable income could be guaranteed. Although the quality of internet novels are to be improved, their subject matters and insights cater to the physiological needs of general public, for example, historical wars, love stories in imperial harem, future science fiction, etc. The plots are normally popular and intriguing, so when readers read up to a part to be followed by a new wave, they feel they are “hooked” when they see the reminder of paying, but they are so concerned about the development of next sequences of events that they cannot stop reading, falling in an awkward predicament. Recently some “righteous” internet users voluntarily upload screenshots of VIP chapter or even scanned manual manuscripts, in such a harsh way destroying the VIP chapter fee system. Most readers naturally like to see this, trying hard to search for these “decoded” parts and continue to read without paying. If things continue this way, not only the page view of VIP chapters in an internet novel website will be much lower, in the course of time the page view of the whole website will also plummet.
This approach to using copyright appears to be creative in today’s society but is actually a heritage of tradition of long history, is a way of profiting from exclusively publishing novels through binding with writers, strangling other internet novel websites and hooking readers. Nevertheless, currently this does not work effectively due to maladministration and imbalance of interests between copyrights of writers and reproduction rights of websites.
In addition to the above versatile approaches, other operational models have been adopted as well, which will not be listed here due to the limitation of the length of the article. To sum up, all these operational approaches share a common characteristic, that is, owners of intellectual property rights have a hunting mentality, trapping their competitors by “infringement of rights”, covering their partially or wholly malicious intentions by legal means, which will finally evolve into all sorts of tragedies.
3. Essence of intellectual property right
I believe that it is necessary to see through these phenomena and elaborate the essence of intellectual property right.
The concept of modern intellectual property right, in a preliminary sense, is a legal right that can safeguard intellectual results against encroachment and earn benefits in a market economy.
From an ideological point of view, it is a sense of rights protection based on utilitarianism that follows the logic of first benefiting oneself then others. This is destined to be difficult to deal with conflicts of values between personal needs and social needs, not to mention the dual effects of cruelty and attractiveness in a market economy. Eventually this will fall into malformation under the strong influence of the benefits-seeking nature and spontaneity.
From a legal point of view, some intellectual property rights holders operating events of “infringement of rights” are not to better take advantage of legal weapons to protect their production and operation environment, but to unlimitedly expand the coverage of their legal rights and increase the “possibility of infringing rights” by unspecific groups and thus maximize their own benefits, by way of conversely using laws, through coarse law interpretation and tricky business operations. This is totally an abuse of rights.
From a viewpoint of economic principles, it is fantastically taking legal rights, which are supposed to safeguarding the possibility of profiting from intellectual property rights, as a tool for directly earning profits. It splits the “rights” attached onto a product from the “product” itself and fabricates a new “product”, which enable their “rights” produce economic benefits directly through “courtroom”, an imagined marketplace.
For example, which may not be uncomely, a vendor (owner of intellectual property rights) sells lunch boxes (product) near a building. Some bad-behaving people often poured dirty water (infringement of rights) from the high floors of the building and his lunch boxes were usually polluted and could not be sold afterwards. For this reason, the public authority conferred him an umbrella (intellectual property rights) to protect his boxes from being attacked by the dirty water and therefore could be sold smoothly. The authority also indicated that if his umbrella was spoiled by the dirt water he had the right to claim to the residents who poured the dirty water for compensation (infringement compensation). The vendor took the umbrella, not sure about his right to claim compensation. Later a barrel of dirty water was poured unto his umbrella and he was compensated by the trouble maker. Having the first benefit, he started to copy this umbrella with the same shape and color. The second day, he brought 100 identical umbrellas under the building and set up his stall. He displayed 100 umbrellas neatly on the spare ground in front of this residential building. This ensures that dirty water poured from any window will wet any of these umbrellas. The only thing the vendor needs to do is going to the troublemaker with this wet umbrella and confidently asking for compensation.
In short, intellectual property right, which is designed to charge against infringement and claim compensation, and which has been increasingly abused, has become a new “commodity” that has come off the original product and become independent.
4. Consequences of abuse of rights
From the above tentative exploration of the essence of rights expansion, we have known that such core essence will definitely lead to the vicious expansion of rights, consequently it will bring about following consequences.
(1) Strangling technology progress
If this vicious expansion of abuse of rights is not contained, but continues, the work of upgrading product properties will be gradually delayed and there will be more tasks of creating possibilities of infringement of rights and misusing legal weapons during the process of product production that owners of intellectual rights engage in. This will finally cause the virtually complete split of intellectual property right and product, severely hinder the creativity of labour of others who work in the same field, and smother others’ efforts in enhancement of product properties when producing same type of products, which will eventually hamper the creativity of labour of the whole industry, increase the cost of technical upgrade and put a weighty yoke on technology progress.
(2)Embezzling labour rights
From the angle of intellectual property right principles, what are protected are basically the legal rights of creators of intellectual results, who then should benefit most in the area of exercising intellectual property right. However, in a market economy, creators of intellectual results are usually the class that is lack of abundant capital, hence they have to cheaply sell their intellectual results to investors in order to acquire fund for new invention (reproducing).
a. Case of internet copyrights
Taking the above-mentioned XD Literature website as an example, there are three options for product authorization when web writers sign cooperation contracts with this website:
Level A: stationed work. I hereby warrant that I am the legal owner of the copyrights of this work. I give consent for “XD Literature Website” and the partner websites and media of “XD Literature Website” to publish this work. I promise to update this work voluntarily in XD Literature Website. Other media shall not reproduce the work without prior consent of XD Literature Website or mine.
Level B: authorized work. I hereby warrant that I am the legal owner of the copyrights of this work. I authorize “XD Literature Website” and the partner websites, platforms and media of “XD Literature Website” to publish this work. Without my prior consent, XD Literature Website shall not recommend this work to other publishing media and other publishing media shall not reproduce the work.
Level C: exclusively owned work. I hereby warrant that I am the legal owner of the copyrights of this work. I warrant that this work shall be first published on “XD Literature Website” and the partner websites and media of XD Literature Website, which I authorize as the sole publisher of this work. Prior to the cancellation of this authorization, I promise I will not submit this work to other publishing media, and XD Literature Website has general power of attorney on such matters as publishing and reproducing this work, and recommending this work to other publishing media.
Readers do not have to carefully examine the differences among these three levels, but only need to grasp the core: authorization.
If a writer chooses any one of these authorization levels in written agreement or electronic agreement, that means, he or she agrees to sell his or her copyrights to the website. The difference of the levels is only in the spreading scope that are described by the words, for example, at level A the writer permits XD Literature Website to authorize its partner websites to reproduce, while at level C the writer promises not to submit the work to other websites, and warrant that XD Literature Website shall be the sole publisher of the work. However, in the last sentence of the level C agreement, we can see that “XD Literature Website has general power of attorney on matter of recommending this work to other publishing media”, which means, the website only requires the writer to unilaterally promise the sole publishing of the work on XD Literature Website, but the latter still possesses the right to spread to other media by just using a beautiful word—“recommending” instead of “right of reproduction”, which brings a strange sense of superiority to the writer, who blindly loses the copyrights that actually belong to him (or her) .
Of course there are some smart writers who refuse to authorize copyrights to websites, but authorization is a necessary part of the cooperation agreement that must be signed. Without granting authorization, writers cannot sign a cooperation agreement, which means that they cannot earn any income from the works. Some writers who are willing to cooperate with websites insist authorization at level A when websites urge them to authorize, but likewise websites furtively retaliate.
The cooperation agreement states that a writer can post his new book on the website when he (or she) has finished 5000 words, whose income is decided by floating bonus system in which the fluctuation depends on “billboard of popularity”. A writer at top 100 can gain a large fixed bonus and a flexible bonus floating according to words, between 101th -500th can obtain a small flexible bonus floating in line with words, between 501th -2000thcan only earn token bonus and below 2000th hardly receives any bonus.
The so-called “billboard of popularity” is merely a cluster of data that the back office can change as they wish. If a website intends to boom the popularity of a “beautiful woman writer”, only by inputting a terrifying large page view number, they will make a new book hot. If a writer is not “appreciative”, they can also input a low page view number, giving him no chance to win bonus.
From the industry of web writing, we can conclude that in the area of copyright and reproduction right, as manifested always by the history, writers still do not own reproduction rights, even the property right of a copyright that can make copyright compete against reproduction right is also deprived, only the personal right of a copyright, a superficial right that cannot bring economic benefits, is reserved mockingly by publishers.
The more cruel one than historical manifestation form was is that the relationship between writers and reproduction right owners is not only a dependency relationship between copyright and reproduction right but also an employment relationship in a different form. In addition, agreements ensure websites do not pay writers most of time, whose living crisis index is almost at the same level as that of insurance salespeople.
We should be able to see clearly now that on the issue of web platform, a pioneer of future platform development, copyright and reproduction right have greatly diverted from their purpose that proclaimed by legal experts, that is, enhancing innovation. This is a very perilous situation, which deserves to be reflected on profoundly.
b. Current situation of the legal implementation of intellectual property right
As another module of intellectual property right, patent is also facing a predicament. As discussed above, a few smart inventors may stride to sell their patents at good prices in order to “sustainably invent”. When people are gradually accustomed to this model, there is a new model emerging among modern patent rights owners—loan production. Seeing enormous profits later on earned by purchasers of their patent rights, they are not satisfied with just making money at the initial stage and want to possess exclusively the profits from market operation. Therefore lawmakers have created a new legal area—patent right pledging.
On October 1st 2010, “Registration rules of patent right pledging” issued by State Intellectual Property Right Bureau came into effect officially. In this rule, the operational model of patent right pledging is that patent right owners pledge their invention patent rights and obtain loans, then use loans to produce objects that are associated with patents and make profits which can be used to pay back loans and redeem the patent rights. This appears to grant patent owners an opportunity to earn some handsome money, however, from the angle of risk-benefit comparison, pledgers will lose their patents if they fail in product operation, although it is always nice if they successfully operate their products; while investors will collect a large sum of loan interest when pledgers successfully operate their products, and directly possess pledged patents if pledgers fail. According to the professional nature of businessmen, they usually do not invest a lot of money at one time in a business with much higher risk than return. Hence, overall, the main aim of this rule is to strengthen investors’ interests and position, further whittle down recessively patent owners’ benefits and increase their operational risks.
In short, through the unequal exchange of capital and mental work, creators of intellectual works are gradually farther from the aim of enjoying their own labour results.
c. Legal essence of “service invention”
Besides the above-mentioned approaches of “fake cooperation, real employment” and “pledging”, market dominators can also legally plunder invention results by manipulating labour relations. In short, either state institutions or modern enterprises (Both are called “entities”) have right to exploit labourer’s intellectual activities and possess completely the invention- creation of inventors.
The detailed situation in our country is that “Patent Law of People’s Republic of China” issued in 1985 and amended in 2008 stipulates the following. I have made a few notes to present my personal viewpoint.
Article 6:An invention-creation, made by a person in execution of the tasks of the entity to which he (or she) belongs or made by him mainly by using the material means of the entity is a service invention. For a service invention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee.(Note: Nowadays capital and production technology are increasing monopolized, so it is difficult to imagine how many people who make inventions do not fall into the category of “in execution of the tasks of the entity” or “mainly by using the material means of the entity”. According to the legal principle of “ruling by law, complying with laws”, these inventions totally belong to entities.)
For a non-service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is approved, the inventor or creator shall be the patentee. (Note: this is reasonable but non-service invention-creation being arranged in the second paragraph of the article, which belongs to “other circumstances except those in the first paragraph” in terms of law logic, shows clearly which invention the law makers pay more attention to. )
For an invention-creation made by a person by using the material or technical means of the entity to which he (or she) belongs, and where the entity and the inventor or creator has entered into an agreement under which there is provision on who has the right to apply for a patent and to whom the patent belongs, the provisions of the agreement shall prevail. (Note: contract spirit is the core of modern law. Because contract is made on the basis of both parties being equal and voluntary to sign, unless there exists violation of law of the related objects or cheat or threat, in short, unless you are trading drugs, arms, women, children, or assist in euthanasia, it will be legally binding once it is signed. Contract is an arena created for both parties with contrasting powers, so what is the possibility that the powerful party is willing to sign a contract that acknowledges an inventor’s ownership of patent rights? If there are entities that do not follow the rule of market are willing to do so, they probably cannot survive in the market.)
Article 7: No entity or individual shall prevent the inventor or creator from filing an application for a patent for a non-service invention-creation. (Note: this article is addressing the issue of the nature of the invention, that is, whether the invention is service invention or not, which is argued between inventor and the entity he (or she) belongs to. This ridiculous article is like such a scenario as that you see a banner on which “care about life, improve sanity; upgrade service, prohibit beating and scolding customers” are written when you enter a restaurant. Law makers estimate too low the intelligence quotient of the entity. The entity can actually use the work opportunity of inventors in the entity to exchange for inventor’s patent. If the inventor rejects, then he (or she) can use one year’s time of unemployment to sue against the entity, just taking it as a relaxing from the intensive work. )
Article 72: Where any person usurps the right of an inventor or creator to apply for a patent for a non-service invention-creation, or usurps any other rights prescribed by this Law, he (or she) shall be subject to disciplinary sanction by the entity to which he belongs or by the administrative authority at a higher level. (Note: Cordially thanking law makers for the supplement stipulation on protecting the inventor to such a great extent. This shinning article indicates, if Chairman A of a company’s board of directors is trying to usurp his employee B’s right of a non-service invention, Chairman A should give himself a disciplinary sanction. Of course he can use his power of chairman easily annul the sanction. Someone asks what the point of his doing this is. This shows he (or she) does not understand the mentality of experts, according to whose description in “legal language”, A’s sanctioning himself is called complying with law and operating fiducially, while annulling sanction is considered as fully implementing autonomous operation. )
(3)Creating modern superstition
Mankind intrinsically fear for and worship things that they do not understand. Scientific analysis approach and life attitude can help smoothen or overcome this negative emotion inherent in mankind and enhance ideology liberation of the society. However in today’s society, the increasing industrialization and utilization of education has brought about a great regression in the nurture of people’s science awareness. In today’s social environment, worshiping unknown things is spreading again.
High technology is such a concept that is crazily boosted by petty bourgeois, especially digital products in living materials, for example “Apple series”, which virtually everyone in every social group, either high or low class (typically in underground trains) have one. “It is out of date without an Apple”.
Look at this Smartphone: elegant and delicate, large screen, touch screen manipulation, magic visual effect in the operational system, a variety of applications can be loaded, which is really an intellectual machine. It is the necessity leading to the future. “If you don’t have an Iphone, you really have no Iphone”.
This advertisement that addresses the social fashion and wins buyers’ heart has penetrated into bones of many people successfully. The day when Steve Jobs died and flooding news declared that Apple would release an Iphone4S memorial model, the majority of those people who just got their Iphone4 still crowded into long queues to purchase this new product. When asked “you already have an Iphone4, why do you want to Iphone4S”, they lift up an Iphone4 or IPAD displaying “light a memorial candle”, tears in the face, and said affectionately: “we thank Steve Jobs. It was he who changed the whole world”. (Actually, according to the official Apple announcement, Iphone4S is not the so-called “memorial model” of “Iphone for Steve”, but a brand new generation. Apple CEO Tim Cook shared his thoughts on the naming of Apple’s new product at D10 Conference on May 30th, 2012: In Iphone series, the iterative digital increase is about the upgrade of industrial design. The S in iphone 3GS means “speed” and the S in iphone4S means “Siri”—a third-party intellectual voice assistant acquired by Apple Inc. However, why Apple did not officially come out to clarify this fact at the time when Jobs died, but after more than half a year? A company would definitely not refute a rumour that was good for increasing product sales.)
If Jobs could know this he would once again be satisfied with his marketing strategy. According to all sorts of disputes between Samsung and Apple, Apple conducted research and development in hardware and software almost at the same as Samsung did for the same type of hardware and software, but Apple did faster in product development and marketing is more powerful, thus, by taking advantage of the mentality that the first lasts long, Apple first created a false concept of “intellectual property right pioneering”. From the event of Apple- Samsung lawsuit we can see that Samsung’ products contain lots of original technologies, for example, Samsung’s orientation towards compatibility of hardware and software and ensuring no crush when processing multithreading tasks, comparing with Apple Smartphone system that focuses on serving single programme to ensure quality but often causes crush once running multithreading programmes, is technically unique to some extent. As for Sirisemantic analysis technology, a recent hot concept, it is third-party software acquired by Apple, not developed originally by Apple. This programme originated from the civil version derived from CALO plan that was released by Defence Advanced Research Project Agency (DARPA). In 2004, a programme in a voice robot developed by a company in our country was granted patent, which can realize most of the functions that siri currently performs (for example, when you ask “how can I get to the train station”, “what’s the weather tomorrow” and “who is xxx”, all answers can be given through a searching programme by voice). For this reason, the company skilfully adopted the above-mentioned approach of “staying by a tree stump waiting for rabbit”, trying to profit from Apple in July 2012. Finally the company’s programme has entered into Appstore.
These technology facts have totally overthrown the glory of “intellectual property right pioneers” of Apple and Mr. Jobses, furthermore they testify to the fact that Apple fans attack Samsung and other company for stealing “great spiritual heritage of human history”. It can be seen that people attracted by the glory of this intellectual property right are so crazy about the products under this glory that they simply become fetishism. This fetishism comes from a lack of social status identification and “economic freedom”, which creates personality cult of modern entrepreneurs. Under this thought, some social members combine their cult of people and that of goods into a single one in their minds, which reveals a truth that people and goods are the same via the media of money. Same thing happened in primitive tribes where tribe people worshiped the tribe totem, and the tribe chief as well, just because they believe the chief became an incarnation of the totem by the power of god.
Therefore “high technology” can be defined as a man-made fake concept. Because science and technology can be researched and mastered by man, during the process of science progress, there are always a number of technologies can be used are released to the society. The next step is to further study on what the follow-up research projects on this science- technology tree are. According to this principle, technologies that can be used by most of people in the society are not great “high technology”. In reality, you never consider an air- conditioner that can adjust temperature as “high technology”, neither a computer that can display 3-D images and is compatible with all kinds of web programmes. Likewise, intellectual digital product, a merely new application based on science and technology, does not deserve to be called “high” comparing with manned space flight or deep sea exploration.
“Emulated cell phone” is another challenging case. First I solemnly declare that what I mean by emulated cell phone is not the fake products viciously using some famous brand names, but the real ones with theirs own brand names, the difference being that the brand names are not famous. What they have are cheap price and solid cover shell. From my personal experience, I find many “emulated cell phones” are installed a system similar as Android, and I am very satisfied with the smoothness in a few of them. This proves that the compatibility technology of hardware and software in these cell phones are highly mature. In addition, the batteries have great power that can last two weeks in stand-by status. If I still remember, what Apple fans complain most about Apple smart phones is large power consumption, therefore the time of stand-by supported by the power is too short.
Of course emulation cellphones are not all the same. Recently a cellphone named GA is very aggressive (to avoid being sued, its real name is not revealed), coming with cover shell and principle of making inner parts being totally different from iphone, but it can achieve the same splendid exterior effect as iphone. The commercial advertisement video of the cellphone also shows an astonishing series of shots: a staff unloads the screen of GA and fixes it on an iphone, amazingly the screen of GA works on iphone and also displays the contents programmes in Apple smartphone. Crowds beside me were shocked by this advertisement, thinking that this testifies to the serious shortcomings of iphone hardware in anti-counterfeit technology. Later a warm-hearted reader who didn’t want to reveal his name offered an explanation: the compatibility of hardware of an intelligence cellphone like iphoneis very high, which does notdemand specific hardware adaptation; GA cellphone is using this advertisement to show an empty technological advantage in order to build up its image and cater for the taste of emulation fans. It should be admitted that GA has also taken advantage of information asymmetry in technology between GA and consumers, and has created a little miracle that “home-made products also have high technology”. (Till the time I amend this article, the marketing people have made another new experiment—taking GA cellphone as a chopping board on which a cucumber was neatly cut but the screen is left without any scratch marks. If any reader can prove falsity of this experiment with reliable evidence, this article will follow up.)
The above examples are given only to break the myth of high technology, not to make any commercial promotion or competition. The purpose is to explain a very simple and naïve logic: if company A’s product is at high end in terms of technology, then even if company A completely discloses its technology, other companies cannot master the technology in a short period of time, so whether there exists intellectual property right will not affect A profiting from its products; in contrast, under the circumstance of not disclosing technology information, if other companies still develop same type of products that can compete with the products of company A, it proves that company A’s technology secret is not necessary to be protected.
Hence, in so-called high technology field, infinitely beautifying the concept and image of intellectual property right is twisting the contents of science and technology in the name of science and technology, and destroying scientific thinking by science worship, therefore this mysterious right of speech attached to intellectual property right should be deprived.
(4) Wasting legal resources
Legal resource, generally speaking, is an aggregation of people engaging in legal activities and time and materials that are used in legal activities. The expansion of spontaneous rights brings about a serious problem—meaningless consumption of legal resources. If the vicious expansion of intellectual property right is not contained, along with the progress of “developing high-tech industries, enhancing industrial structure adjustment”, we will probably see that in the future dealing with intellectual property right dispute will be the busiest part of courts’ work. Numerous judges and secretaries will be immersed into the paper world of circuit diagram worksheet and chip design standard paper and struggle, while various technology appraisal institutions earn vast money and their staff are exultant. No one can deny the fact that the number of judges is limited, the energy and time of every single judge limited, and the same applies to the staff working in other state judicial organizations, lawyers and litigants. Therefore when legal resource is always at a relatively saturated state, the rapid increase of legal actions in intellectual property right will surely impede trial work of courts, defence work of lawyer and even the safety in production and operation of litigants.
In the archives of the Patent Office are some “invention patents”, at which we can’t help laughing, silently lying there. For instance, someone digs a hole in a soap, in the middle of which ties a rope, which is called “anti-slippery soap”. The purpose is to deal with the problem of the soap slipping away from the hands when a person taking bath or shower. Of course, this item cannot attract any angel investor. Someone adds a brush on the top of an umbrella, for preventing dust falling onto the body when a person cleaning ceiling. There are so many such examples. It is hard to list all of them.
These patents, which look useful but are actually useless, occupy storage spaces of the Patent Office, increase work load of the Office, cause delay of the registration and daily maintain programme of invention patents with real utilities and increase storage risk. Therefore, these invention patents with low entry barrier and low standard not only consume human and material resources, but more often, insidiously crowd out other similar rights.
(5) Smothering freedom of speech
Internet is the most free and broad communication platform so far in human history, everyday tremendous amount of information being delivered through this giant platform. Under virtual names internet users freely render information and upload their favourite programmes. However the pervasive shadows of “protecting intellectual property rights” are swallowing up the vigorous virtual spaces. An internet player purchases an electric game or application software with his legally-earned money and wants to share with other users without charge, but at the moment he presses the button “share”, he is secretly eyed and is judged as illegal reproduction and infringement of copyright. I am flabbergasted at this logic. If I buy a book that my friend also likes, but I cannot afford to buy another one for him. Then for the benefit of improving my handwriting I manually copy several books, which I give to my friends. Is this action an illegal reproduction? If this is not an infringement of rights because it is not for commercial purpose, why is internet player uploading game programme to the web space, also with no commercial purpose, illegal reproduction?
When you see your screen is full of reminders such as “this file has been deleted”, “this page cannot be displayed”, “this file cannot be downloaded without uploading certificate of rights” and pervasive anti-counterfeit reminding windows, you should realize that they are making every efforts to deprive public’s freedom of browsing internet information. This kind of strange logic that one may steal a horse while another may not look over the hedge” has not been seen through by “sensible people”. It continues to weave its magic, trying to make more and more people identify themselves with it and willing to maintain its existence.
Nevertheless, they are now facing challenge from an extremely powerful group—Anti- copyright Pirate Bureau. The organization has its declaration as follows:
“Freedom of speech is the foundation we have built, but it is not easy to make it. You might have heard what Voltaire said: ‘I do not agree with what you said, but I will protect your right to say those words at the cost of my life.” Freedom of speech is that simple. Although democracy sounds nice comparing with those more disgusting views, it is not nice enough for us to abandon our right of expressing our thoughts.
“The Pirate Bay”, a BT downloading website established by Anti-copyright Pirate Bureau, was once the one having the highest page view in Europe. On this platform, internet users freely upload or download any software, video or audio, and communicate.
It can be imagined that so many able people, who “can extract Melatonin from a toad”, denounce this, and even curse and make death threat to administers of The Pirate Bay on the “intellectual property right remembrance day”.
Sweden government made a gesture of righteousness and sent policemen raiding The Pirate Bay’s data centre in May 2006 and confiscating a number of severs which provide services to over 100 websites. Nevertheless this raid did not impinge much on The Pirate Bay, which opened again in less than three days and attracted new users because of the responses of the media all over the world.
After that the website has been running regularly, without any serious breakdown. The lawsuit against administers of The Pirate Bay has not been settled until today.
International Federation of the Phonographic Industry (IFPI hereafter) carelessly lost its domain name because they forgot paying renewing fee. The Pirate Bay then legally purchased the domain name and audio-uploaded all the phonograph records they collected onto a website with IFPF domain name. In order to retake their name IFPI initiated lawsuits many times, even reported to the police for suspecting The Pirate Bay of hacking. On April 17th 2009, Stockholm district court affirmed that the members of The Pirate Bay were accessories to spreading pirate audio files, and made a verdict that four members of The Pirate Bay, headed by Neil, were guilty, and sentenced them to pay IFPI damages of 3.67 million US dollars. Of course Neij and others was not able to pay that large amount of money. This was finally left unsettled. After the trial IFPI resorted to International Intellectual Property Rights Organization in no time, and by forcefully changing the right of using domain name it recaptured the domain name that was legally obtained by The Pirate Bay and also made a public statement: “This is good news for all original knowledge creators, the victory of righteousness and conscience”. Domain name belongs to the category of intellectual property right, the user of which should legally obtain it prior to using. IFPI seized others’ legal domain name by false allegation, lawsuit and pulling the strings, which were also infringement of intellectual property rights. Therefore they actually do not know the standard of righteousness and conscience.
In 2010, The Pirate Bay closed its Tracker servers that were blockaded by the governments all over the world. Some upright people were quite proud of it and thought this “malignant tumour” had died out. However, The Pirate Bay suddenly declared that magnet web agreement, which can cross over most of data masking, had been successfully developed. They proclaimed: “I am your net of heaven. You want to use those ridiculous tricks to control internet? Impossible.”
Afterwards on Stockholm’s streets small noisy flyers with a Bluetooth transmitter were flying up and down for a period of time. Behind these flyers were the policemen holding nets, trying to catch them. The awkwardness of the policemen was indescribable.
According to recent news, The Pirate Bay declared that they are testing LEO (low earth orbit) net signal transmission on space. If it is successful, they will try to send server to the space.
The concept and system of intellectual property right are supposed to provide guidance according to social circumstances, encourage people to express information that is useful to social development and state-of–the-art technology, but when self-centred rights widely broaden and interests monopolies suppress the whole social rules, the freedom of expression initially driven by demand of interests will also be repressed by demand of interests. It is an appropriate existence that The Pirate Bay strives for freedom of expression, original creation, sharing and technology progress. Although they have not yet established their ideology, neither know about how to fundamentally advance social progress, they are outstanding in this special area.
5. Restraining methods
To deal with the vicious multiplication of intellectual property rights, two restraining methods should be adopted: ideology restraint and system restraint.
(1) Ideology restraint
Ideology restraint is a regression of sociological principles, allowing people to find rationality and altruism and improve social environment. After we confirm the positive effect of intellectual property right as personal intelligence works, we need to recognize from another angle a fact: seeing from the whole society, the labour works protected by intellectual property right is not just anaccidental sparkling of a single genius, but is rooted in social foundation, including material conditions and the whole technology level. Only by following the rules of the society can people make fewer mistakes and accelerate social development, no one can literally go beyond a time or even “change the world”, same as Zhu Ge Liang who could invent Zhuge Crossbow but could not create atom bomb. In contrast, if a society is stagnant in development, no genius can save the society from decaying. Thus, no matter law or policy, the first mission of intellectual property right is to safeguard the unending driver of the society— technology progress. Therefore, through the trial of fire and storm, intellectual property right will disperse vigorous flames of the social public right from the ashes of private right.
There is opposite perspective holding that, “over stressing public benefit may cripple the motivation of intellectual property right owners acquiring private rights and profits, which will hinder further invention-creation, and suffocate the vigour of a society.”
This is a typical utilitarianism model of petty bourgeois. First, public benefit is an aggregation of benefits can be acquired by all people. It does not exist at the price of scarifying personal private benefit but integrates private benefits of all social members, serves as a platform for smooth and fair exchange and cooperation among private benefits, and a perfect place for better settling disputes of rights among social members. Secondly, the thought that people do not want to invent-create without profit motivation cannot explain the inventions such as “invention of arrows and bows” made during the time before currency appeared. Generally, invention possesses two properties. One is utility property, meaning it can meet current material and spiritual needs; one is commodity propertyin the time of commodity economy, meaning it can be used to exchange and profit as a commodity. Logically, it is the utility of an invention and the market prospect brought forth by the utility that make this invention exchangeable as a commodity, hence the commodity property of an invention is dependent on its utility property. Therefore utility is the first property and commodity the second.
In Japan, some fantastic people often organize activities such as “Chindogu” (grotesque practical tools), for instance, a fan that can be put beside your eyes to protect your eyes when cutting onion. They are senseless though, are not as silly as the above-mentioned invention patent that digs a hole in soap. For the public benefits they are given to the community to free use. A Sweden game company named Paradox adopts open source in a series of game programmes, which allows some players who know about programming to restructure the original game with a code editor, to some extent, to produce a new game based on the original game code. Paradox is very pleased to share original ideas with game players, from which they absorb nutrition that is considered as the spiritual fertilizer of next game development. This has developed a world that open source game and new code game harmoniously coexist, bringing lots of fun to countless game players. From these examples it can be concluded that invention is not necessarily tightly connected with earning monetary profits. The creativity of mankind is a practical innate disposition, which in an appropriate environment will never be covered by the animal nature imposed by capital society—the consciousness of the jungle. This creativity will be activated to a greater extent after it gets rid of the chain of capital and the squeal of economic kidnapping in ideology.
(2) System restraint
I believe that abolishing the legal rules on the formation of intellectual property right is only the “breaking” facet. From the viewpoint of the consistent development of history, since intellectual property right will virtually be annihilated and its remains will surely become a social public right, it is necessary to establish the sublimation system of intellectual property right—the scientific chain transmitting the creative knowledge information from the brain of the labourer to the whole society, that is, to address the “building” facet. During the historical transition period, on the one hand, the invention-creation of the inventor should be respected to some extent, that is, inventor should benefit from his invention-creation to a certain degree, on the other, to prevent the revival of capital system, it is essential to inhibit the formation of social technology information imperviousness resulting from technology monopoly barrier, not to mention leaving the profits scenario derived from technology information delivery to the market to handle. Therefore, in each of the following links of the transmission chain some general principles should be set:
a. At the link between labourer and entity, labourer should possess the right of promoting his (or her) invention and enjoy economic benefits. Besides the entity he (or she) serves, inventor can also promote the technology to others at his (or her) free will. The state provides extra incentives to self-motivated inventors to promote their technologies. The period that labourers possess this right is decided according to the value of inventions, but at most being 5 years. It is to encourage labourers to promote their technologies to the whole society within 5 years as possible in order to obtain more bonuses. To ensure this intention smoothly implemented, the related labour laws should clearly stipulate that various non-disclosure agreements of technology that constrain labourers shall be prohibited.
b. At the link between entity and society, all entities should regularly exchange technologies and concerning social organizations should hold technical contests or public bidding. Entities can train interested non-employee labourers through technology training programmes, but trying to avoid adopting the operational model of directly charging other entities training fee, which can be compensated through state budget or social organizations’ public funds. To prohibit entities from acquiring compensation by cheating in the name of training and exchange programmes, any of such activities should have the participation, observation and supervision of concerning government institutions, social organizations and technical personnel working in the same industries.
c. At the link between labourer and society, social technical or organizations should admit a variety of technical workers and ensure freedom of social activities, thus enabling them to contribute intellectual works both in the entities they serve and in the society, never allowing build up barrier between entities and the society.
d. At the link between society and entity, state or social organizations should periodically integrate technologies or information about the results of technology development all over the world, release the integration results to all entities and send members to assist entities in identifying the direction of technology upgrade and enhancing productivity.
e. At the link between society and individual, educational institutions, media and social organizations are mainly responsible for promoting new technology and new information to every individual’s mind. The detailed operational methods will not be discussed here.
Intellectual property right is dependent on “knowledge”—it is the spiritual clothing put on capital in order to cover its real look, and the driving force of a production chain in market economy. Intellectual property right is categorized upon “specialization of knowledge”, which is the inevitable outcome of specialization and division of labor in production field that capitalists conduct in order to maximize profits and speed production under the rules of market economy. In the future, the moment when we can hard-heartedly tear off this clothing will be the time to establish scientific public-ownership economic system, to eradicate self-interested economic model, and to eliminate economic monopoly and accomplish full socialized mass production; knowledge will be spread in all fields of the society and related technologies in different areas can be calmly connected, thus “field peculiarity” and “speciality” of “knowledge” will be abolished. The new mankind emerging from the new environment will adopt the basic think model of “blending harmoniously”, developing the habit of “knowledge is for sharing” and “information is for expressing”, thus information and technology of the whole society will be seamlessly connected. At that time, all desperate criticism of the former experts and scholars will not work, and we, as members of the new mankind, will scornfully kick the naked intellectual property right system, which will have lost its economic foundation and forceful protection, into the historic tomb.
First draft accomplished on March 11, 2012
Revised on May 15, 2013