创意保护的法律路径
任自力创意保护的法律路径
Legal Plight and Way Out of “Ideas” Protection
期刊名称：《法学研究》
期刊年份：
作者：任自力
单位：北京航空航天大学法学院
中文关键词：创意;法律保护;著作权
英文关键词：ideas;legal protection;copyright
中文摘要：
创意的法律保护是近年来许多国家创意产业发展中面临的一个基础性命题和共同难题。创意应具有新颖性和具体性。关于创意保护的权利基础，主要有财产权理论、合同理论、不当得利理论和保密关系理论。我国有关创意保护的理论研究与司法实践均处于初创阶段，应从三个方面构建创意保护的法律制度：在性质上，将创意界定为一种独立的知识财产；在保护范围上，坚持创意判断上的相对新颖性和具体性标准；在保护模式上，确立以著作权法为主导、以合同法等法律为补充的系统保护机制。
英文摘要：
The legal protection of “ideas” is a basic and critical issue that many countries’ creative industry has to face during its recent development. As one kind of burgeoning intellectual product, “ideas” has close relationship with works, trademarks and other traditional intellectual products. But “ideas” has its independent contents and value. In general, “ideas” should possess some novelty and concreteness, although the judgment criteria are different in different countries. In the U.S.A., which has the most abundant experiences about the legal protection of “ideas”, a variety of legal theories concerning its jurisprudence foundation have been developed during the long-term evolution, such as the property theory, the contract theory, the unjust enrichment theory and the confidence relationship theory, etc. These theories and the corresponding legal protection approaches have important value for many other countries to learn from them. In China, the theories and the judicial practice of the legal protection of “ideas” are in leading strings for the time being. In practice, people whose ideas have been infringed seek relief mainly by the intellectual property law (the copyright law and the anti-unfair-competition law). In some cases, the plaintiffs also seek relief through the contract law or the basic principles of civil law. But the number of the cases sued to the court is small, and there are few plaintiffs who win the case in the end, with the absence of the concrete rules in the present law and the lag of the legal research. This article finally holds that, in order to guarantee the healthy development of the creative industry, China should construct its legal protection system from three aspects. Firstly, in terms of its attribute, we should define “ideas” as a type of independent intellectual property. Secondly, in terms of its protection scope, the criteria of relative novelty and concreteness of ideas should be adhered to. Thirdly, in terms of its protection patterns, we should establish a systematic protection mechanism with the copyright law in dominance and the other laws in supplement.
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