【作者】 王黎明；

【导师】 王国平；

【作者基本信息】 苏州大学 ， 中国近现代史， 2008， 博士

【摘要】 对比中外知识产权发展的历史可以看出,1902年以前,由于诸多因素的影响,中国与英、美、日等国在对知识产权的认知以及知识产权法律制度的建构上,差距巨大。十九世纪末二十世纪初,正处于西方专利制度复兴以及知识产权保护国际化蓬勃发展的时期,随着中西经济交流的进一步发展,中外商民之间的知识产权纠纷凸显,美、英等国期望本国在华商民的知识产权权利通过法律或条约的形式得以固定;另一方面,中国社会及经济发展也产生了一定的保护版权及商标的内在需要。基于多重因素的推动,在1902年开始的一系列商约谈判中,英国、美国、日本等国分别就知识产权问题与中国进行了谈判。商标保护是当时最为突出的知识产权议题。中英间商标问题的谈判及所签订的条款,对后续的谈判起到了示范性的作用;中美商标谈判受到中英商标谈判及其所达成的条款的影响与牵制,并未在条款模式及内容上有大幅度的突破;由于日商在中国从事大量的商标假冒及侵权行为,中日商标谈判中,日方受到了来自舆论及其它缔约国的压力;另外,中德间也进行了商标、商号、企业名称等的谈判,中葡间的谈判涉及了原产地证明的问题,但中德、中葡条约均未生效。美国是本次谈判中唯一提出专利谈判要求的国家,由于观念上的巨大差异,以及中方对实施专利制度可能有损于科技与经济发展的忧虑,谈判过程曲折、难度很大,但最终所达成的专利保护条款却具有开创性的意义。版权谈判在当时引起朝野极大的反对声浪,中方的谈判代表对美、日两国的方案和要求进行了有力抵制,对版权保护的范围、期限等做出了限制。晚清中外首次知识产权谈判是在知识产权保护国际化的潮流下所展开的,更多的是适应了列强在中国经济扩张的需要。鉴于强弱势力极悬殊之情形,中国难以大幅突破强势者所确定的模式。双方代表持不同的法律传统及思想观念讨论知识产权问题,强势的一方、制度成熟的一方必然占有优势,主导谈判。尽管如此,在谈判中,中方代表利用列强间的矛盾勉力周旋,尽管不得不接受知识产权条款,但留有自主操控权的指导思想给谈判结果的执行留下很大的弹性。作为历史上第一次中外间涉及知识产权问题的谈判,其所具有的历史意义及影响是重要和深远的。本文从现代商标观念及商标权利意识的培塑,以创新求专利之风渐行,保护著作权人人身及财产权的现代版权观念的形成等角度,来论证谈判对于现代知识产权意识及观念培塑的促进作用;从商标法的制定及商标管理机构的设立、版权及专利立法的进展状况等方面,分析谈判对中国现代知识产权立法及知识产权制度构建的影响;从各种类型的案例中,分析条约在处理涉外知识产权纠纷方面的作用,进而剖析谈判在司法实务方面的影响;对于谈判的启示,主要从知识产权制度如何根植于中国,且如何能对中国的经济发展及国际竞争发挥正向作用等方面来做思考,认为作为舶来品,知识产权需要长期的融合发展才能根植于中国,只有适应国家经济发展水平及需要的知识产权制度才有生命力,并从谈判团队建设、知识产权文化建设、知识产权民间自治管理、推动国际知识产权新秩序的建立等方面,论述谈判对当代中国知识产权工作的启示。更多还原

【Abstract】 Compared with the Intellectual Property Rights (“IPRs”) between Western countries and China, it is observed that the understanding of IPRs and the construction of IPRs systems between China and foreign countries (such as Great Britain, U.S.A and Japan) were quite different before 1902 owing to the divergence of culture and economic conditions and other factors. Due to the increasing economic interactions between Chinese and Western in the early 1900’, when western patent revitalized and international protection of IPRs fully flourished, with the further development of economic exchange between China and the west, the trade relationship between Chinese and foreign businessmen reflected new characteristics—disputes between Chinese and foreign merchants became substantial and therefore China and its economic development had the internal needs of protecting trademark and copyright. Under such multi-circumstances, in order to safeguard the merchants’IPRs in China of each country through the form of treaties, governments of U.S., Great Britain and Japan conducted series of negotiations as of 1902 with Chinese government on IPRs.The protection of trademark was one of the most prominent issues of IPRs. Such negotiations of trademark between China and Great Britain and the signed treaties thereafter had demonstrational significance on subsequent negotiations; while as to U.S.A and China, even though U.S.A had made various and sufficient preparations, significant breakthrough concerning the model and content of treaties was hardly to achieve due to the influences and restraint by the negotiations between Great Britain and China and therefore signed treaties; As for conditions between Japan and China, the negotiations of trademarks were in diametric opposition to each other and the process was extremely severe. Furthermore, since Japanese businessmen committed a large number of counterfeit trademark and infringement, Japan had suffered external pressures from public opinions and other treaty powers; additionally, Germany and China also conducted negotiations on trademark, trade name and enterprise name and negotiations between Portugal and China involved issues of certificate of origin, however, all of which were not effective. Among treaty powers, U.S.A was the only state who raised the requirement of patent negotiation. Owing to the huge differences on viewpoints and concerns of destructing on the development of technology and economy in case of implementation of patent system in China, the road of negotiations between U.S.A and China was tortuous; nevertheless, the terms of patent protection finally reached had pioneering meanings. At that time, negotiations of copyrights aroused oppositions by government and the people, and the representatives of China resisted strongly to proposals by U.S.A and Japan and made restrictions on the scope and period of copyright protection.The first negotiation of IPRs between China and foreign countries happened under the tide of the internationalization of IPRs protection, however, more for the needs of foreign powers for economic expansion in China. Due to the extreme disparity in power, it was hard for China to break through modules set by foreign powers. Under such circumstances, when representatives of both parties discussed issues of IPRs from different legal traditions and ideas, the one with upward trend and mature systems was bond to have advantage in negotiations. However , the representatives of China tried to maneuver room for negotiations with foreign powers. Despite having to accept the terms of IPRs, the guiding ideology of self-controlled power had remained great flexibility on implementing the results of negotiations. Such negotiations, which concerned issues of IPRs between China and foreign countries at the first time in history, had great and far-reaching historical significances and influences.This article, through aspects including the process of constituting trademark laws, the establishment of trademark administrative institutions and the progress of copyright and patent legislations, analyzes the influences of legislations and systems of IPRs in modern times. Secondly, this article studies the role of treaties in dealing with foreign disputes of IPRs and the impacts of negotiations on judicial practices through various cases. Thirdly, this article demonstrates that negotiations have played important role in cultivating ideas and consciousness of IPRs in modern times from the aspects of building up ideas of modern trademark and trademark rights, promotion of patent by innovation and the formation of modern copyright ideas for protecting the rights of person and of property of the owner of copyrights. Fourthly, as for inspiration from negotiations, this article, by focusing on how the systems of IPRs rooted in China and how such system played positive function in economic development and international competition, argues that it must experience long-term integration for IPRs, as one of oversea imports, to be implanted deeply in China; and such systems of IPRs may enjoys strong vitality only when they are compatible with the level and needs of national economic development. At last, this article discusses the implications of modern IPRs works in China from points such as establishment of negotiation team, construction of IPRs culture, non-governmental administration of IPRs and improvement of setting up new order of international IPRs.更多还原