In the view of quite a number of scholars and most textbooks, the constituent elements of general torts are equivalent to the constituent elements of liability for damages. The so-called tort law is actually the law of damages (or tort liability law), and its constituent elements are the “four elements” theory that we are familiar with: the fact of damage, the causal relationship between the illegal act and the fact of damage, subjective fault and the illegality of the act. The concepts of tort and intellectual property infringement have been discussed above, and in fact, the view of this book has been made clear, that is, intellectual property infringement does not have subjective fault and the fact of damage as constituent elements. The following is a brief discussion of the constituent elements of intellectual property infringement from the perspective of relevant provisions of my country’s intellectual property law.
Damage facts
Damage facts refer to the actual consequences of damage, including property losses or mental suffering. In this regard, my country’s intellectual property law has the following provisions.
(1) Article 47 of the Copyright Law stipulates that the copying and compilation without the permission of the copyright owner, and Article 46 stipulates that the recording without the permission of the performer are all infringements. If the infringer merely copies, compiles, or records, and does not use, sell, or give away, no damage will be caused. Based on the compensatory nature of the safeguards for civil legal relations, the infringer should not bear civil liability for damages. However, it is beyond doubt that these acts are infringing acts in nature.
(2) Article 11 of the Patent Law stipulates that the patentee enjoys the right to manufacture and the right to promise to sell. If the infringer merely manufactures or promises to sell the patented product, and does not use, sell, or give away, the infringer should not bear civil liability for damages. However, Article 57 of the Patent Law also clearly stipulates that it is an act of infringement of patent rights.
(3) Article 49 of the Copyright Law, Article 61 of the Patent Law, and Article 57 of the Trademark Law respectively specify that immediate infringement is an infringement and that civil liability should be borne. We know that the essence of immediate infringement is an act that is likely to cause harm but has not yet caused any harmful consequences, but it still constitutes an intellectual property infringement.
It can be seen that from the perspective of my country’s intellectual property legislation, the formation of intellectual property infringement does not require the fact of harm.