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从理论上说,知识产权的对象可以凭借其自身具有的一定程度的创造性或区别性,来实现其独立化及与其他知识产权对象的区分,但问题是创造性和区别性等概念本身也具有不确定性和模糊性。知识产权保护范围的划定虽然可以在一定程度上改善知识产权权利界限的模糊性,但不能一劳永逸地解决问题。立法者有必要基于政策上的考量,践行知识产权法定主义,尽可能地缓和知识的公共性与知识产权的私权性之间的紧张和对立。
In theory, the object of intellectual property can, by virtue of its own certain degree of creativity or distinctiveness, realize its independence and differentiation from other objects of intellectual property, but the problem is that concepts such as creativity and distinctiveness also have their own Certainty and ambiguity. Although the delimitation of the scope of intellectual property protection can improve the ambiguity of the boundaries of intellectual property rights to some extent, it can not solve the problem once and for all. It is necessary for lawmakers to practice the statutory doctrine of intellectual property based on policy considerations and to ease as much as possible the tension and opposition between the publicity of knowledge and the private rights of intellectual property.