Wen/Wang Wenqi, Xu Wenting

Abstract: In judicial practice, there are different treatments for determining which rules to apply under the dual protection of copyright law and anti unfair competition law. The non-uniformity of the applicable rules has led to confusion in practice. The key to solving this problem lies in clarifying the relationship between copyright law and anti unfair competition law. In theory, there are three views on this issue: supplementary protection theory, limited protection theory, and parallel protection theory. From the development of legal history, the independent value of anti unfair competition law is increasingly evident, and the difference between its protection purpose and legal interests with the specialized protection of intellectual property is becoming increasingly evident. The two have a legal basis for parallel application. The Supreme People's Court has supported the theory of limited protection, but there is still room for parallel protection in addition to limited protection. Within the scope of compatibility with the legislative policies of the Copyright Law, there is still room for parallel protection of the Anti Unfair Competition Law. Compatibility with legislative policies can be understood as having independent legal interests protected by the Copyright Law.

Keywords: Copyright Law, Anti Unfair Competition Law, Parallel Protection, Supplementary Protection

introduction

There are a large number of cases where copyright law and anti unfair competition law are both protected in intellectual property infringement litigation. When the plaintiff requests both copyright law and anti unfair competition law protection for the same infringement, how should the court handle the application of the two laws. Different courts have different ways of handling two litigation claims, either by competing claims or jointly determining the amount of compensation. The different handling methods undoubtedly put the plaintiff's choice of litigation strategy to the test. In response to this phenomenon, the author will use a combination of empirical analysis and theoretical analysis to analyze the types and applicable rules of the dual protection of the two laws.

1、 Typological Analysis Based on Judicial Judgments

Through the search of the "Peking University Magic Treasure" and "Weike First" databases, a total of 125 cases were selected based on judgments that included both "unfair competition disputes" and "copyright ownership and infringement disputes". These cases can be roughly classified into the following categories:

（1） The dual protection of copyright and the unique name, packaging, and decoration of well-known products

There are 56 cases where the plaintiff simultaneously advocates for the protection of both copyright and the name, packaging, and decoration of well-known goods, accounting for approximately 44.8% of the total, which is the largest category among all types. It can be further divided into two categories: the name of well-known products and the packaging and decoration of well-known products. The former usually involves two different behaviors, namely copyright infringement and unauthorized use of a product name that others have a certain influence on. The unauthorized use of an art work that others have copyright on a product constitutes copyright infringement, and the use of a product name that others have a certain influence on a product. In addition to determining copyright infringement, the court separately determined that "Call of Duty" and "SpongeBob" constitute influential product names [see Ningbo Intermediate People's Court (2016) Zhejiang 02 Min Chu No. 65 Civil Judgment]; The latter, on the other hand, constitutes both copyright infringement and unauthorized use of packaging and decoration unique to well-known goods, with a total of 47 cases, accounting for 83.9% of the total number of cases of this type and 37.6% of all cases. The rights holder not only enjoys the copyright of art works, but also enjoys unique rights in product packaging and decoration through promotion and use. The unauthorized use of the product by the perpetrator constitutes infringement of the aforementioned two rights and interests. In judicial practice, different courts have different methods of handling such situations. In most cases, the court will determine whether the act constitutes copyright infringement and the constituent elements of well-known product packaging and decoration separately. But there are also a few courts that directly require the plaintiff to choose one application due to the competing claims, and do not recognize another claim.

According to the judgment results, 56 cases of this type were classified, with 34 cases having both claims and 3 cases not having both claims. There are a total of 13 elements that constitute one claim but not another, as there are 6 cases where the competing claims have not been determined whether one of the claims is valid or not.

There are different judgment paths and standards for the establishment of two claims, so they are not established simultaneously. The key to copyright recognition is whether it has originality, and only considers the constituent elements of the work without considering market factors; The packaging and decoration of well-known products are closely combined with market factors. Firstly, it is necessary to determine whether they constitute a well-known product, and then to determine whether the packaging and decoration on the product is significant and identifiable, that is, the general consumer can identify the source [see Civil Judgment No. 200 of Anhui Intermediate People's Court of Bozhou City (2017) and Civil Judgment No. 26 of Lishui Intermediate People's Court (2015).]. In cases that constitute copyright infringement but do not constitute unfair competition behavior, the court usually determines that it does not constitute unfair competition behavior based on the fact that it cannot be recognized as a well-known product, is not significant, or does not cause confusion among ordinary consumers; For cases that do not constitute copyright infringement but constitute unfair competition behavior, there are only 2 cases where the claim for copyright infringement was rejected based on the inability to prove the ownership of the copyright and the fact that the perpetrator also registered the outer packaging design as a copyright. However, in the latter case, there was a clear error in the judgment. The court mistakenly recognized the effectiveness of copyright registration and believed that the completion of copyright registration would have originality, thus directly determining that it did not constitute copyright infringement. However, there are differences in understanding and application among different courts regarding the handling of the same act that constitutes both copyright infringement and unfair competition. Most courts have made separate judgments on the simultaneous establishment of the two, and then considered the subjective malice that constitutes both to jointly determine the compensation amount, However, there is no consensus on which approach is more appropriate when a few courts directly apply the rule of concurrent claims, requiring the parties to choose one claim.

（2） Copyright infringement and false publicity

There are 38 cases where the plaintiff simultaneously claims copyright infringement and false advertising, accounting for approximately 30.4% of the total. These cases can be roughly divided into two categories: firstly, different behaviors constitute copyright infringement and false advertising, and are tried in the same case because the parties involved are the same and their behaviors are related; The second is that the same act constitutes both copyright infringement and false advertising, which requires the copyright owner to not only have originality in copyright law, but also require their own content to have the function of promoting or reflecting certain advantages of the goods or services, such as advertising text or videos, product images, etc. For example, changing the opening name and image of the advertising video of the rights holder for promotion, falsely using the publicity content and honor of the rights holder, misleads the public and illegally obtains commercial transaction opportunities belonging to the rights holder. The essence of false advertising is to cause misunderstandings among general consumers, which can be mistaken for having a specific relationship with the rights holder or for producing erroneous recognition of certain characteristics of the goods or services of the perpetrator.

Among them, 23 cases simultaneously established copyright infringement and false advertising, with 2 cases not constituting the two. 6 cases only established copyright infringement, 6 cases only established unfair competition behavior, and 1 case was not recognized due to competing claims. In the 7 cases that were determined not to constitute false advertising, it usually occurred in the case of unauthorized use of product images of the rights holder. The product images only contained product appearance information and did not reflect the trademark identification, manufacturer, and other content of the plaintiff and defendant, which was not enough to cause public misunderstanding of the product source or confusion of the plaintiff and defendant's products, so it did not constitute false advertising. [Refer to the Civil Judgment No. 0008 of the People's Court of Zhangjiagang City, Jiangsu Province (2014).] Only when the copyright has the function of identifying the source can it constitute false propaganda. The determination of copyright infringement does not require these standards, so there are significant differences in the evaluation methods and protection laws between the two. The exclusive rights enjoyed by one protected rights holder, the unfair competition behavior of free riding regulated by another, and the fair competition order of the protected market. For one case where false advertising was not identified, the court did not specifically point out the existence of a competitive relationship in the reasoning section. The increase in business opportunities for one party is accompanied by a decrease in opportunities for the other party, which is a clear criterion for judging unfair competition behavior. Therefore, the court clearly mixed the judgment of false propaganda with the judgment of copyright infringement, which is inevitably confusing to people.

（3） Dual Protection of General Provisions of Copyright Law and Anti Unfair Competition Law

The plaintiff simultaneously claimed to constitute copyright infringement and violation of the general provisions of the Anti Unfair Competition Law, totaling 20 cases, accounting for 16% of the total. Among them, 17 cases requested protection from both the Copyright Law and the Anti Unfair Competition Law for the same act, and 8 out of 17 cases were no longer subject to repeated protection from the Anti Unfair Competition Law by the Copyright Law Evaluation Court because the act had already been evaluated. It can be seen that when there is uncertainty in the determination of copyright infringement in certain behaviors, such as broadcasting sports events or live games that others have rights to [see Beijing Internet Court (2020) Jing 0491 Min Chu 17208 Civil Judgment], plaintiffs usually choose to add general provisions of anti unfair competition law as a cover for protection.

By analyzing the reasoning part of the court, it can be seen that courts usually hold the role of anti unfair competition law as a supplement, cover, or additional protection to copyright law. In situations where copyright law has already been applied to evaluate or protect behavior, it is not appropriate to use anti unfair competition law to repeatedly protect the same behavior. [Refer to the Civil Judgment No. 2836 (2019) of the Intermediate People's Court of Shenzhen City, Guangdong Province.] For the application rules of general clauses, many courts believe that the following constitutive requirements should be met: firstly, there is no special provision in the law for this type of behavior; Secondly, competitive behavior actually damages the legitimate rights and interests of other operators; The third reason is that the behavior violates recognized business ethics and the principle of good faith, resulting in unjustifiability. [Refer to the Civil Judgment No. 20405 of the Guangzhou Internet Court (2020) Yue 0192 Min Chu.] Therefore, there is no situation where multiple claims exist simultaneously for the application of general terms. Only when there is no provision in copyright law can the general terms be applied. Therefore, the above 7 cases are not based on the requirement of competing claims, but rather have been evaluated by copyright law and will no longer be protected repeatedly if they do not meet the general conditions of application. [Refer to Civil Judgment No. 687 of Shanghai Intellectual Property Court (2021) Hu 73 Min Zhong]

（4） Copyright and Trade Secrets

The plaintiff simultaneously claimed 15 cases of copyright infringement and infringement of trade secrets, accounting for 12% of the total. Among them, 4 cases were found to constitute both, 7 cases were found to only infringe on copyright, and there were no cases of only infringing on trade secrets. There were 4 cases where both were found not to constitute. It can be seen that the difficulty of identifying infringement of trade secrets is much higher than that of infringing copyright. Among the 11 cases that were determined not to constitute infringement of trade secrets, the vast majority were due to the plaintiff's inability to prove that the work on which they relied was not well-known to the public, i.e. did not have confidentiality. Regarding the choice of claim rights and responsibilities between the two, some courts believe that there are significant differences in the interests and constituent elements of protection between trade secrets protected by the Anti Unfair Competition Law and works protected by the Copyright Law. The protection of trade secrets and copyright for specific objects is not a relationship between special law and general law, The right holder can simultaneously claim unfair competition of trade secrets and infringement of copyright for specific accused infringement behaviors, but civil liability can only be borne by either party. [Refer to the Civil Judgment No. 220 of Shanghai Intellectual Property Court (2018) Hu 73 Min Zhong.] However, another court held that the two defendants' copying of the source program and technical documents was a competing act that infringed both copyright and trade secrets, and applied both laws when determining the compensation amount and applicable legal basis. [Refer to the Civil Judgment No. 10448 of the First Intermediate People's Court of Beijing (2011) Yizhong Minchu Zi] Two courts supported that two actions constituted a competing claim, but the two courts also determined the two actions separately. Due to the relatively simple determination that they did not constitute trade secrets, the court directly did not support the plaintiff's infringement of trade secrets based on the plaintiff's claim that the content did not contain secrets.

In summary, the main issue in the dual protection field of copyright law and anti unfair competition law is how to apply the law when the same act constitutes both copyright infringement and unfair competition. Most courts will determine whether the two claims are valid separately, but some courts directly require the parties to choose based on the competing claims. In cases where the parties do not make a choice, there are also courts that actively choose a more suitable law. The key to solving this problem is undoubtedly to clarify the relationship between anti unfair competition law and copyright law, whether it is more in line with academic principles and legal provisions, whether it is a parallel application or a choice. Some courts believe that copyright law and anti unfair competition law are a special law and general law relationship [see Shanghai Intellectual Property Court (2019) Hu 73 Min Zhong 377 Civil Judgment, Changsha Intermediate People's Court (2018) Xiang 01 Min Chu 3359 Civil Judgment], so priority should be given to the application of copyright law. Some courts also believe that anti unfair competition law is a supplement or additional protection to copyright law. There is also considerable controversy in academia and practice regarding the relationship between the two.

2、 The Debate on the Relationship between Copyright Law and Anti Unfair Competition Law in Academic Theory

（1） Debates on Different Theories

Regarding the relationship between copyright law and anti unfair competition law, some scholars advocate for supplementary protection, stating that behaviors that are not regulated by copyright law can be regulated by the anti unfair competition law, similar to the relationship between icebergs and seawater, Many courts recognize the complementary role of the Anti Unfair Competition Law in areas not covered by the Copyright Law, such as unregistered packaging and decoration works [see Civil Judgment No. 4 of Zhejiang Zhoushan Intermediate People's Court (2019) Zhejiang 09 Minchu]; Some scholars advocate for limited protection, stating that the Anti Unfair Competition Law should extend protection on the premise of not contradicting intellectual property legislation policies. Objects explicitly excluded by the Copyright Law will no longer be protected by the Anti Unfair Competition Law, Typically, works that have exceeded the copyright protection period are no longer protected by anti unfair competition laws. Some courts hold this view that the issue of game adaptation rights has been negatively evaluated within the framework of copyright, and the scope of copyright control has been clearly defined. Actions outside the scope of control should be included in the public domain, We should not make repeated judgments [Lu Chunxin, "Determination of the Application Boundary of the Anti Unfair Competition Law in Intellectual Property Protection," Law Journal, Issue 9, 2019.]; Some scholars also recognize the parallel protection theory, which advocates that the two are independent and parallel claims, and there is no priority application, no supplementary relationship, and no normative competition. [Zhang Weijun, "The Relationship between Anti Unfair Competition Law and Intellectual Property Law from the Case of Jin Yong v. Jiangnan", "Intellectual Property Law", Issue 10, 2018.] In judicial practice, some courts have directly supported the parallel protection theory in their judgments. He believes that the legal interests protected by copyright law and anti unfair competition law are different. The purpose of copyright law is to protect the intellectual achievements of rights holders, while the purpose of anti unfair competition law is to protect fair competition, The subjects, scope, methods, and focus of protection for preventing unfair competition are different between the two. For rights holders, remedies in copyright law may not necessarily compensate for the damage caused by the same behavior with unfair competition. [Refer to Hainan Provincial Higher People's Court's Civil Judgment (2018) Qiongminzhong No. 552.]

The main difference between the two laws lies in whether the rights are clear. The Copyright Law specifies the constituent elements of exclusive rights, while the rights protected by the Anti Unfair Competition Law need to be determined in individual cases. The above characteristics determine the certainty, comprehensiveness, and efficiency of specialized law protection for intellectual property, and become an important reason for supporters of the theory of supplementary protection to prioritize the application of specialized law protection. However, the certainty of copyright law protection is not absolute. In situations where the ownership and originality of copyright are unclear but the visibility and significance of product packaging are clear, the judgment of unfair competition behavior is more clear. In terms of the frequency at which the two are applied together in practice, parallel protection will not cause inefficiency and complexity in overlapping protection. Courts can already distinguish the legal interests and purposes of the two protections, and the special provisions of Chapter 2 of the Anti Unfair Competition Law have formed comprehensive and complete judgment rules. The determination of unfair competition behavior is not more complex than the determination of copyright infringement.

（2） Looking at the Relationship between the Two from the Perspective of Historical Development

From the perspective of historical development, the Anti Unfair Competition Law did not rely on the development of intellectual property law, but derived from the general rules of tort law to protect the interests of honest operators and public market order. However, as the color of protecting public interests gradually deepens, it also has a certain public law attribute. Wei Zhi: "On the Relationship between Unfair Competition Law and Intellectual Property Law", Journal of Peking University (Philosophy and Social Sciences Edition), Issue 6, 1999

The Anti Unfair Competition Law originated in Europe after the Industrial Revolution in the second half of the 19th century. With the disintegration of guilds and the development of free trade, the original trade order was greatly challenged, and the market urgently needed a law to regulate unfair trade practices. Kong Xiangjun: "On the New Positioning of Anti Unfair Competition Law", Chinese and Foreign Law, 2017, Issue 3. French judges directly apply the general rules of the French Civil Code infringement law to stop unfair trade practices. Afterwards, German law developed a written law on unfair competition, and the first article of this law was also derived from the general clause on infringement in the German Civil Code. [Liu Xiaochang, Copyright and Anti unfair Competition Protection of Literal Works Elements: From the Perspective of "Tongren Works", Trial Research, WeChat official account, July 26, 2019. Quoted from Xie Xiaoyao: Between Experience and System: Research on the Typology of Judicial Cases of Unfair Competition, Law Press, 2010 edition, page 151.]

One of the functions of unfair competition law at its inception was to fill the early legislative gaps in industrial property protection, providing peripheral protection for industrial property, mainly regulating industrial property rights such as trademark law and patent law. The Paris Convention for the Protection of Industrial Property explicitly regulates acts of unfair competition, therefore unfair competition is also included in the scope of industrial property protection. However, with the continuous expansion of the protection scope of the Anti Unfair Competition Law, some unrelated intellectual property behaviors have also been covered. Correspondingly, in the system of China's Anti Unfair Competition Law, the confusion behavior in Article 6 has a supplementary effect on the protection of industrial property rights. However, other behaviors, such as commercial bribery in Article 7, false propaganda in Article 8, infringement of trade secrets in Article 9, and unfair competition on the Internet in Article 11, It has little to do with protecting intellectual property rights. It can be seen that with the further development of specialized intellectual property laws, the auxiliary protection function of anti unfair competition laws is weakening and the competition function is strengthening. Although copyright does not fall within the scope of industrial property rights, it can also have the meaning of identifying sources and highlighting quality through use and promotion, and can also have the characteristics of industrial property rights. Therefore, although intellectual property law and anti unfair competition law intersect, they are only a small part, and anti unfair competition law has independent protection scope. And for the cross section, the supplementary and auxiliary function in function does not affect the independence of legal application.

The Anti Unfair Competition Law of China was promulgated and implemented in 1993. With the deepening of reform and opening up and the development of the market economy, market vitality has erupted, and there is an urgent need for a law to regulate market behavior and market entities. Our country's Anti Unfair Competition Law has been formulated based on foreign legislative experience and has undergone two revisions. The legislative purpose of the Anti Unfair Competition Law has expanded from protecting the interests of operators to protecting the interests of consumers and the public. Its multiple protection legal interests can no longer be covered by intellectual property specialized laws.

Therefore, from the development process of the Anti Unfair Competition Law, it can be seen that the Anti Unfair Competition Law has established different protection paths and objectives from specialized intellectual property laws such as copyrights. This is also the legal basis for copyright law and anti Unfair Competition Law to evaluate the same behavior for parallel protection.

3、 The Definition of the Relationship between Anti Unfair Competition Law and Copyright Law in Current Law

（1） Analysis of the New Judicial Interpretation of the Anti Unfair Competition Law

Article 1- Supplementary protective effect of general provisions of the Anti Unfair Competition Law

The relationship between the Anti Unfair Competition Law and specialized intellectual property laws such as copyrights is not directly explained in current laws. The first article of the new judicial interpretation of the Anti Unfair Competition Law explains the conditions for the use of general provisions of the Anti Unfair Competition Law. General provisions can be applied in situations other than those not specified in the specialized law and Chapter 2 of the Anti Unfair Competition Law, but it does not specify whether general provisions can be applied in cases where there are provisions. The person in charge of the Supreme People's Court of China stated in an answer to reporters' questions: "This not only clarifies the application relationship between general provisions and specific behavioral provisions, as well as the provisions of the Intellectual Property Law, but also clarifies the basic application status of general provisions to other intellectual property laws such as the Anti Unfair Competition Law and Trademark Law, https://www.court.gov.cn/zixun-xiangqing-351301.html Visited on June 23, 2022 From the perspective of judicial interpretation, the general provisions of the Anti Unfair Competition Law have a protective effect on other special provisions. When the game screen is not protected by copyright law in the watching mode [see Shanghai Intellectual Property Court (2015) Hu Zhi Min Zhong Zi No. 641 Civil Judgment], and when the elements of the work, such as character names, are not protected by copyright law [see Guangzhou Tianhe District People's Court (2016) Yue 0106 Min Chu No. 12068 Civil Judgment], the general provisions serve as supplementary or protective measures.

Article 24- Denying the Rationality of the Theory of Parallel Protection

Article 24 of the new judicial interpretation states that "if the court has already determined the infringement of copyright and ordered the parties to bear civil liability for the same infringement committed by the same infringer against the same subject at the same time and within the same geographical scope, and the parties demand civil liability for constituting unfair competition, it is not supported." This article clearly denies the theory of parallel protection. Therefore, supporters of the parallel protection theory fiercely criticize the irrationality of this article, believing that it confuses the object and object in civil law, where the object is a factual element in civil legal relations and the object is the rights pointed to by civil legal relations. Seeking protection for different objects on the same object does not constitute duplicate remedies. A painting is an object that can form copyright or a packaging of well-known goods. The two belong to different objects and can request protection separately. [He Peng, "Haihua Research | Differentiated Protection of Different Rights and Interests by Special Law on Intellectual Property Rights and Anti unfair Competition Law", Haihua Yongtai Law Firm's WeChat official account, April 12, 2022, So the key to resolving whether the same infringement can be protected by both copyright and anti unfair competition laws is to judge whether the purposes of exercising the two claims coincide based on the concept of competing claims. Professor Wang Zejian believes that the competition of claims refers to the coexistence of multiple claims for the same purpose of payment, and the parties may choose to exercise them. When one claim is extinguished due to the achievement of the purpose, the other claims are also extinguished due to the achievement of the purpose. [Wang Zejian: "Civil Law Thinking - Basic Theoretical System of Claim Rights", Peking University Press, 2017 edition, p. 131.] Some courts have also pointed out that the competition of claim rights refers to the fact that a fact meets multiple legal components, thus establishing multiple claim rights, but with only one purpose. [Refer to the Civil Judgment No. 564 of the Nanjing Railway Transport Court (2017) Su 8602 Min Chu], it can be seen that the competing claims not only need to meet the legal requirements of multiple claims at the same time, but also have the same purpose between multiple claims. The reason for repeated evaluation in cases where the law prohibits the competition of claims is to prohibit repeated gains. However, when there are differences in the purpose and legal interests of copyright law and anti unfair competition law protection, choosing a particular claim may result in the inability to compensate for the losses suffered by the victim. If the compensation amount is determined solely based on the popularity and originality of the work when infringing upon copyright and competing with false advertising, and the legal compensation determined due to the lack of popularity or low originality of the work is lower, if the establishment of false advertising is not judged, the losses caused by the victim's unfair competition behavior of false advertising cannot be compensated. In practice, although courts may consider both copyright infringement and unfair competition when applying statutory compensation, without sufficient examination of the constituent elements of the act, it is inevitable that the nature and impact of the act may be biased. When the choice fails to achieve the purpose of compensating for the losses of the parties, it does not constitute a situation of competing claims, and copyright infringement and unfair competition behavior need to be recognized separately.

In the above-mentioned cases, 14 have identified the existence of concurrent claims, while a few have denied the existence of concurrent claims. There are two reasons why courts rarely apply the theory of concurrent claims in dual protection cases: firstly, in many cases, different behaviors constitute infringement of copyright and unfair competition, and multiple behaviors are placed in one litigation procedure due to their relevance; The second is that the court has determined whether the behavior meets the constitutive requirements of both, and considered the subjective malice that constitutes both copyright infringement and unfair competition behavior when compensating the amount [see (2014) Hangbinzhichu Zi No. 111 (2014) Hangbinzhichu Zi No. 111 Civil Judgment].

（2） Opinion of the Supreme People's Court on the Application Scope of the Parallel Protection Theory

1. The Three Connotations of the Opinions of the Supreme People's Court

In the opinions of the Supreme People's Court on Several Issues Concerning the Service of Intellectual Property Trials under the Current Economic Situation and on Several Issues Concerning Fully Utilizing the Function of Intellectual Property Trials to Promote the Great Development and Prosperity of Socialist Culture and Promoting Autonomous and Coordinated Economic Development, the relationship between handling intellectual property specialized laws and anti unfair competition laws is elaborated in greater detail. The author summarizes this section into the following three meanings: firstly, the supplementary protection effect of the Anti Unfair Competition Law shall not conflict with the legislative policies of the Intellectual Property Law; Secondly, where specialized laws have already made exhaustive provisions, the Anti Unfair Competition Law no longer provides supplementary or additional protection in principle. However, within the scope of compatibility with the legislative policies of specialized laws, protection can still be provided from the perspective of preventing unfair competition; The third is the relationship between the principles and special provisions of the Anti Unfair Competition Law. The exhaustive provisions in the special regulations, such as behaviors explicitly prohibited, can only be regulated in accordance with the special regulations. For competition behaviors that have not been specifically regulated, only those that have harmfulness and unfairness and are not enough to maintain a fair competition order without stopping can be regulated by applying principles and regulations.

The opinion of the Supreme People's Court affirms the complementary role of the Anti Unfair Competition Law in the intellectual property specialized law. Therefore, some people believe that the Supreme Court has adopted the theory of supplementary protection, and that the factors that need to be considered in the measurement of interests between the Intellectual Property Specialized Law and the Anti Unfair Competition Law are highly overlapping. Therefore, there is no significant difference in the legislative purpose and adjustment object between the two. [Zeng Fengchen, "The Doctrinal Development of Judicial Policy on the Relationship between Anti Unfair Competition Law and Intellectual Property Law", "Jiao Tong University Law", Issue 2, 2021.] The author does not agree with the above viewpoint. Anti Unfair Competition Law can only be used when it does not conflict with specialized legislative policies, and the Supreme Court more accurately adopts the theory of limited protection. Moreover, although there is some overlap with the specialized law on intellectual property rights in terms of regulating objects and protecting legal interests of the Anti Unfair Competition Law, it is more of an independent component. From the perspective of legislation, the purpose of copyright law is to encourage the creation and dissemination of works, regulating the rights and obligations between authors, disseminators, and audiences; The Anti Unfair Competition Law safeguards the legitimate rights and interests of operators and consumers, as well as the fair competition order in the market. There are significant differences in the legislative purpose, adjustment objects, and protection of legal interests between the two.

Therefore, with the expansion of the protection scope and legal benefits of the Anti Unfair Competition Law, the independence of the Anti Unfair Competition Law has become increasingly prominent, and the foundation of the supplementary protection theory has also been shaken.

2. Space for Parallel Protection - Comment on "Compatibility with Legislative Policies"

The Supreme Court has also created exceptions to the limited protection theory, believing that even if there are provisions in specialized laws, within the scope compatible with the legislative policies of specialized laws, unfair competition behavior can still be regulated from the perspective of maintaining a fair competition order. That is to say, from the perspective of legislative policy compatibility, there is still room for the theory of parallel application. However, what constitutes "compatibility of legislative policies" is a difficult point to identify in practice. The author believes that if the legitimate rights and interests to be protected are not equal to the rights protected by specialized intellectual property laws, or if the anti unfair competition law has legal interests independent of the protection of specialized intellectual property laws, it is compatible with the legislative policies of specialized laws. Compatibility implies coexistence. If the interests of anti unfair competition law and copyright protection do not overlap, it is necessary to apply the protection of both in parallel and independently in order to jointly achieve the legislative objectives of the two. Taking both the composition of a work and the influential packaging and decoration as examples, the former protects the exclusive rights enjoyed by the rights holder over the work, essentially protecting an intellectual achievement. The latter focuses on saliency and recognition, breaking away from the recognition of the constituent elements of the work. As packaging and decoration are used, the work already has a labeling function due to its popularity, and essentially protects the business results, The benefits brought by the two achievements cannot be mutually covered, therefore parallel and opposing protection is needed. Therefore, the legal interests protected by the Anti Unfair Competition Law can be divided into two categories: independent and supplementary. Independent legal interests refer to general competitive interests that are independently protected by the Anti Unfair Competition Law, such as false advertising, commercial bribery, internet unfair competition behavior, etc. Supplementary legal interests refer to legal interests that are not within the scope of specialized law protection but are necessary for protection, such as the names of works that cannot be protected by copyright law. According to the relationship between the protected legal interests and specialized intellectual property laws, there are various legal interests within the anti unfair competition law system, which also determines that the relationship between the claims based on the two is not a single supplementary or parallel relationship, but rather a parallel use when infringing on independent legal interests protected by the anti unfair competition law, and supplementary protection when infringing on supplementary legal interests.

4、 Conclusion

The supplementary protection role of the Anti Unfair Competition Law in copyright law has been clearly recognized in China's legal and judicial practice. However, with the increasingly prominent independent value of anti unfair competition law, the relationship between copyright law and anti unfair competition law is no longer purely a supplementary protection relationship. The introduction of the judgment method of "compatibility with legislative policies" has left room for the parallel application of the two. The advantage of parallel protection rules is that they not only focus on the independent protection purposes and legal interests of copyright law and anti unfair competition law, but also better protect the interests of rights holders.

——This article won the second prize at the 2022 Taizhou Lawyer Industry Excellent Paper Seminar

Reference:

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[4] Xie Xiaoyao: "Moral Interpretation of Competitive Order", Law Press, 2005 edition.

[5] Fan Changjun: "Research on German Anti Unfair Competition Law", Law Press, 2010 edition.