Intellectual property infringement liability and intellectual property infringement behavior are two closely related but different concepts. Literally, intellectual property infringement liability is the liability caused by intellectual property infringement behavior. Therefore, to clarify what is intellectual property infringement liability, we must first clarify what is intellectual property infringement behavior. Intellectual property infringement behavior and infringement behavior are closely and complexly related.
1. Analysis of the concepts of infringement behavior and intellectual property infringement behavior
The concept of infringement behavior is the basic theory of the Tort Law, but the academic community in my country has not reached a conclusion on the concept of infringement behavior. One of the core issues of the debate is whether tort behavior is a constituent element of fault, and it is divided into two main views: affirmative theory and negative theory.
The affirmative theory advocates that fault is a constituent element of tort behavior. The representative definition is: an act that infringes on the legitimate rights and interests of others intentionally or negligently and should bear compensation liability for the damage caused according to law. The negative theory advocates that fault is not a constituent element of tort behavior. The representative definition is: an act that infringes on the legitimate rights and interests of others and should bear civil liability according to law. In my country, only a small number of scholars represented by Professor Wei Zhenying hold this view, and Zheng Chengsi is the representative in the field of intellectual property. In terms of legislation, no country has adopted such a legislative example in its tort law, but in the field of intellectual property law, most major developed countries, whether in the continental legal system of France, Germany, and Japan, or in the common law system of the United Kingdom, the United States, Australia, etc., adopt such a legislative example. According to the general opinion of scholars and most legislative examples, it can be considered that tort refers to an act that infringes upon the legitimate rights and interests of others intentionally or negligently, and should bear liability for compensation for the damage caused according to law. Intellectual property infringement refers to an act that infringes upon the intellectual property rights of others and should bear civil liability according to law.
Intellectual property is a new type of civil right that has emerged due to the full development of commodity economy and technology after the law has fully protected this type of property rights with tangible objects as the subject matter. The protection of intellectual property rights in various countries is completed by various special laws. In the system of special law protection, there is no dual protection structure like property rights, but the protection methods of property rights and creditor’s rights are combined together, thus forming the concept of intellectual property infringement that does not take fault as a constituent element.
2. Analysis of the concepts of tort liability and intellectual property infringement liability
Combined with the previous analysis of tortious acts, it can be considered that tort liability refers to the liability for compensation for damages caused by intentional or negligent infringement of the legitimate rights and interests of others; intellectual property infringement liability refers to the civil, administrative or criminal legal liability that should be borne according to law due to intentional or negligent infringement of the intellectual property rights of others.