Research On The Localization And Internationalization Of The Legal System Of Intellectual Properties Of The Chinese Medicine

The model of human economy has transformed from agriculture to industry to knowledge. In the age of knowledge economy, knowledge interests become the important form of wealth, the allocation to which has been paid much attention. Nevertheless, the developed countries have taken charge of the arrangement about how to allocate the knowledge interests in the world for a long time, and disregarded the protection of intellectual properties of advantaged traditional knowledge owned by the developing countries, which makes the international protection of intellectual properties unbalanced. As a result, the weak protection of intellectual properties has been used as a means of developing the infantile national industries in many developing countries. And the infringement of the intellectual properties of high-teched products which is protected in the develoed countries becomes the most practical means to absorb the science and technology owned by the industrial nations. Subsequently, the international conflicts and frictions dealing with intellectual properties occur and become acute continuously.With the advent of the age of globalization, the disadvantages not to protect the intellectual properties become clear increasingly, and the developing countries begin to rethink the relations between the international protection of intellectual properties and the development of national industries. They come to realize that the protection of the backward or isolation from the international environment is not only improper but also can not enhance their own ability of competition, which makes the national industries avoid the international competition and make them unable to make progress synchronously with the developed countries. So the deveoping cuntries adjust their policies of intellectual properties one after another, and tend to make a promise to protect the intellectual properties internationally.As to the selection of the approach to protect the intellectual properties internationally in the developing countries, Chengsi Zheng points out that "there are two ways. One is to lower the level of the protection of intellectual properties including patent, trademark, and copyright; the other is to broaden the extent of the protection of intellectual properties to include the concerned objects and to enhance the level of the protection, which give the developing countries an advantage over the developed but are not protected (or not protected by most countries) now." The first approach is not feasible theoretically or practically, so the second way is only choice to protect the intellectual properties. The Chinese medicine is one of the few intellectual properties of which our country controls the antonomy of technology, but is also the weak part of the protection of intellectual properties. Thus the research on the legal system of intellectual properties of the Chinese medicine is an useful attempt to improve the systems of intellectual properties in our country or even the developing countries. But the research has not been done by anyone theoretically and would have been the innovation of systems practically so far. The article attempts to make a research on the localization and internationalization of the legal system of intellectual properties of the Chinese medicine theoretically and practically, which may be helpful to construct the legal system of intellectual properties of the Chinese medicine of our country and to improve the international legal system of intellectual properties.This article is composed of six parts.The introduction is the background, basis and premise of this article, which defines the matters the text wants to discuss. The central concepts in the article include as follows: firstly, the legal system of intellectual properties of the Chinese medicine, meaning the aggregate of systematical legal norms which are concerned with rights generated by the intelligent innovative activities of the Chinese medicine, under the direction of some legislative idea; secondly, the localization of legal system, meaning the assimilation and integration of the external law by the internal law; thirdly, the internationalization of the legal system of intellectual properties, meaning the interdependent and interconnected tendency of development of international legal system which is shaped through participation in the international rule-making dealing with the protection of intellectual properties of the Chinese medicine, the formation of international practices of protection of intellectual properties of the Chinese medicine, and the further promotion of coordination and convergence of the systems of intellectual properties of the protection of traditional knowledge in various countries.In the first chapter, this article wants to comment and reflect the legal system of intellectual properties of the Chinese medicine. This part summarizes and comments the legal system of intellectual properties of the Chinese medicine, for the purpose of providing the directive goal. In my view, the existing legal system of intellectual properties of the Chinese medicine have three levels in our country: firstly, the basic laws and rules of intellectual properties enacted by our country; secondly, the laws and rules applied to the Chinese medicine specially; thirdly, the international treaties of intellectual properties through participation and the bilateral or multilateral agreements of the protection of intellectual properties signed by our country. The basic laws and rules of intellectual properties have been amended several times for more than twenty years, and their ideal and basic norms have conformed to the international standards basically so far. Thus, this article collectively calls the first and the third level of the legal system of intellectual properties of the Chinese medicine the existing legal system of intellectual properties, after this article's investigation, whose essence is regarded as the promotion of the innovation of intelligent creation having the promising prospect of market, through granting the workers and investors and operators of the intelligent innovation the monopolies of market. The laws and rules specially applied to the Chinese medicine mainly mean The Act of Protection of kinds of the Chinese medicine, which is distinctive legal system of intellectual properties in our country special for the Chinese medicine. The system is a kind of supplement to the existing legal system of intellectual properties, designed to explore the approach of protecting the kinds of the Chinese medicine which can not be protected by the basic laws of intellectual properties.There are three major problems in the existing legal system of intellectual properties of the Chinese medicine. Firstly, the legislative idea falls behind. Medicine is a special kind of commodity concerned with people's heath, and our country has promoted the realization of people's rights of health for a long time through the weak protection of intellectual properties of medicine. This damages the dynamics of innovation of enterprises producing the Chinese medicine, and leads the industry of the Chinese medicine to make little progress. Secondly, there is lack of assimilation and convergence of the legal system of intellectual properties according to the characteristics of the Chinese medicine. There are grave conflicts between the laws and rules of intellectual properties applied to the Chinese medicine and the general existing laws and rules of intellectual properties, which leads to the mess of the protection of intellectual properties of the Chinese medicine. Thirdly, there is lack of international rules of intellectual properties of the Chinese medicine. In the international systms of protection of intellectual properties, the developed countries effectively make their own knowledge the special resources and productive elements which are protected by the international law, participate in the collocation of resources, and obtain a benefit. But the heritages of traditional knowledge owned by many developing countries can not be converted into the resources protected under the existing framework of international legislation. The next three chapters will discuss this problem, and explore the solutions.In the second chapter, this article wants to study the rationality of the legal system of intellectual properties of the Chinese medicine. This part analyses the rationality and irrationality of the existing legal system of intellectual properties on the philosophical level, and further explores the rational legislative idea of intellectual properties of the Chinese medicine, to provide the theoretical basis for constructing the legal system of intellectual properties of the Chinese medicine. In my opinion, the legal system of intellectual properties don't rest on the theory of labour which belongs to the theories of natural law, but designed to protect the achievements of intellectual creation which is the important dynamics of the development with the progress of technology. The rationality of the systems lies in that from the perspectives of the pursuit of interests rooted in the human nature and the objective laws according to which the economy of market operates, they play full role in promoting the economical increase and enhancing the social weath. And the irrationality of the legal system of intellectual properties lies in that they are short of the humanistic spirit of respecting the dignity of human themselves and benefiting the human; that only attach importance to the economical effects neglects the social effects; and that only pay attention to the pursuit of truth lacks of the pursuit of good. All these lead them to cause many social problems while inspiring the innovation and advancing the development of economy at the same time.In the twenty-first century, with the conflicts between the legal system of intellectual properties and the ultimate goal of human subsistence and development gradually becoming clear, the development of the legal system of intellectual properties tends to eliminate their irrationality gradually that is too much instrumentality and utility, and to be blended with the rationality of value. They will more emphasize the social effectes and goals, not merely limited to the requirements of uniformity and standardization of technology. They will pay more attention to the ultimate results, more tolerant to the diversity of process. They will more embody the pursuit of humanistic meaning, more consider the interests of the counterpart, and make themselves harmonious with the contemporary spirit and return to the rationality.In my opinion, in China, the rational legal system of intellectual properties of the Chinese medicine should study the next two problems: on the one hand, it should be harmonious with the goal of legal system and the developmental depth of politics, economy and culture; on the other hand, it should to realizate of rights of human health by inspiring the innovation of the Chinese medicine, promoting the development of the industry of the Chinese medicine. The legal system of intellectual properties of the Chinese medicine is rational because of qualify for these conditions.In the third chapter, this article wants to study the localization of the legal system of intellectual properties of the Chinese medicine. This part discusses how to assimilate and integrate the legal system of intellectual properties according to the characteristics of the Chinese medicine, and further put forward the basic framework of legal system of intellectual properties of the Chinese medicine of our country. The Chinese medicine embodies the rational core of Chinese culture and the idea of harmony among human and nature and themsevles. But it can not absorb the advanced achievements of modern science and get rid of its deficiencies of age and technology because of lack of encourage from effective systems. The legal system of intellectual properties have been the best approach which is designed to inspire innovation so far. However, they are disputed much because of lack of humanistic care. So we should transplant the rational core of legal system of intellectual properties inspiring innovation, and promote the modernazation and development of the Chinese medicine through the inspiration of the systems. Meanwhile, we innovate the legal system of intellectual properties through the protection of the Chinese medicine which is a special kind of drug of humanistic care, attempt to overcome the internal deficiencies of legal system of intellectual properties, and realize the localization of the legal system of intellectual properties.In the forth chapter, this article wants to study the internationalization of the legal system of intellectual properties of the Chinese medicine. This part discusses the significance of participation in the international rule-making of protection of intellectual properties of the Chinese medicine, and the desirability of internationalization of the legal system of intellectual properties of the Chinese medicine; and makes some oriented suggestions for internationalization of the legal system of intellectual properties of the Chinese medicine. The existing international rules of intellectual properties shaped under the charge of developed countries provide full protection of intellectual properties of the Western medicine, but are absent of rules to protect the traditional drugs including the Chinese medicine, which leads to the unjust allocation of interests of knowledge globally. So the attempt to participate in the international rule-making of intellectual properties in this field will be helpful to the fair and reasonable allocation of interests of knowledge throughout the world, the best approach for the developing countries to realize the right of development. Thus the limits of the existing international rules of intellectual properties will be overcome, and the international systems of protecting intellectual properties will be perfected.With the advent of age of globalization, many factors make the internationalization of the legal system of intellectual properties of the Chinese medicine feasible. Firstly, the transformation of human notion of health and models of medicine and pharmacology offer the real basis. Secondly, the development of science and technology offers the technical support. Thirdly, the transformation of the model of progress of the western science and technology offers the cultural basis. Therefore, the developing countries should make full use of international institutions and groups, such as UN, WTO and non-governmental organizations to coordinate the distribution of interests with the developed countries through the mechanisms of balances, and promote the internationalization of the legal system of intellectual properties of traditional medicine such as the Chinese medicine.The conclusion outlines and summarizes the central points of this article. Generally speaking, in my opinion, the Chinese and western medicines based on the east and west cultural backgrounds respectivelly have their own characterstics. Both of them are the treasure of human civilization, and should be protected by the legal system of intellectual properties. But the Chinese medicine could not be protected by the legal system of intellectual properties for historical reasons. However, with the advent of age of globalization, human cultures tend to synthesize each other, and the legal system of intellectual properties of the Chinese medicine tend to be reconstructed and internationalized. This article makes suggestions for the localization and internationalization of the legal system of intellectual properties of the Chinese medicine theoretically and practically.