On The Protection Of Traditional Knowledge In International Law

Traditional knowledge refers to the know-how,skills,innovations,practice,teaching and learning of indigenous peoples,local communities and other traditional knowledge holders.It is a kind of important value resources for the survival and development of the human society.Its value mainly shows: protecting the ecological environment,promoting native economic development and safeguarding human rights of indigenous peoples.In recent decades,with the development of modern science and technology,traditional knowledge which originally only benefits generations of indigenous peoples in the traditional community more and more frequently breaks through original geographical boundaries,becomes an important innovation source of modern science and technology,and is to be copied,spread and used in different countries and different districts.The great value of traditional knowledge both inside and outside the traditional community is increasingly remarkable.However,the problems come: traditional knowledge facing survival crisis;the phenomenon of free plunder in the developed countries and multinational piggybacking on traditional knowledge occurred frequently;the interests appealing of traditional knowledge holders conflicting with the traditional knowledge users,and existing international legal protection system dissatisfying the demand of the protection of traditional knowledge,etc.At present,any countries establishing a system for traditional knowledge protection at the national level have no barrier.However,there are major differences on the way how to realize the international protection of traditional knowledge on the basis of balancing interests in the international community.Thus,the protection of traditional knowledge in international law becomes the focus of attention.The protection of traditional knowledge in international law has made some progresses.CBD is the first International Convention related to traditional knowledge.Since then,some important international platforms have discussed this issue and achieved some results: from the perspective of the ecological environment,CBD,Nagoya Protocol and International Treaty on Plant Genetic Resources for Food and Agriculture are the main results;from the IP perspective,the negotiations around TK have lasted more than 10 years and TK has been included in the priority of issues under WTO Doha declaration;from the perspective of human rights,there are a number of international legal instruments directly or indirectly related to the protection of traditional knowledge.Current,the protection of traditional knowledge in international law can't fully realize the protection of traditional knowledge.The problems mainly displays as follows: First,it lacks a guiding international convention to protect traditional knowledge.Second,there are major differences of opinion in the selection of traditional knowledge protection ways in the international community.Third,the characteristics of traditional knowledge hinder itself to obtain sufficient international legal protection of intellectual property rights.To solve these existed problems of the protection of traditional knowledge in international law,it can consider the following solution.First of all,it can rely on WIPO to conclude and manage the Convention on Protection of Traditional Knowledge.This Convention is available from the latest negotiation results of WIPO which is The Protection of Traditional Knowledge: The Draft Articles.Besides,it should build a multiple protection mode of the protection of traditional knowledge by international law system.The system mainly consists of the intellectual property protection and other ways besides intellectual property protection.At last,for the conflict between characteristics of traditional knowledge and intellectual property system,it should coordinate through strengthening the system of theoretical research and seeking breakthrough way.China should adopt the corresponding countermeasures for reason that establishing an effective international law system to protect the traditional knowledge is a long way.Specifically,China can adopt the strategy of "attaching great importance to" and "walking on two legs" when deals with the problem of the protection of traditional knowledge in international law."Attaching great importance to" refers that China shall attach great importance to traditional knowledge protection in the epistemological level."Walking on two legs" refers that at the domestic level China shall actively develop national strategy of traditional knowledge protection and form the specific protection measures.At the international level,it shall actively participate in and promote the negotiations about the protection of traditional knowledge in international law.