The International Protection Of Traditional Knowledge And China's Choice

The legal protection of traditional knowledge, especially the intellectually property right of traditional knowledge, has become one of hottest issue in the world. Most developed and developing countries are trying to achieve the integration of the protection of traditional knowledge. However, so far there is still no uniform international standards of protection, but only some guiding principles. Because of the lack of traditional knowledge law, more and more traditional knowledge holders'right has been damaging. As the greatest developing country, China needs to make deep research on traditional knowledge protection, because she possesses a large quantity of traditional resources. Based on the understanding of Chinese present situation of traditional knowledge protection and some successful practices in other countries, this essay is trying to put forward effective legislative suggestions of Chinese traditional knowledge protection. There are three chapters in this essay. The main points are as follows:Chapterâ… is the basic theory of traditional knowledge and the station of traditional knowledge on international protection. This is the foundation and source of the paper. This chapter is divided into two parts, firstly, author explains the meaning of traditional knowledge, summarizes the characteristics of traditional knowledge, points out the problem of the protection of traditional knowledge, and sums up the rights which traditional knowledge holders want. Traditional knowledge is based on the traditional or traditional literary, artistic and scientific works, performances, inventions, scientific discoveries, designs, Property, traders and markings, the information has not been public, as well as the intelligence, the innovation and creativity on the basis of tradition from all other industrial, scientific, literary and artistic activities, it is traditional, continuity, collective, spreaded orally, geographical features, the protection of traditional knowledge is facing to "biopiracy" and other major issues. The traditional knowledge holders do not get the rights they expect to be protected. The second part mainly elaborate on the modern international community's attitude of the traditional knowledge . This part take the activities of the World Trade Organization and the World Intellectual Property Organization as the main line, listed the "Trade-related Intellectual Property Rights Agreement" and several other influential international conventions on the protection of traditional knowledge Status. With the traditional value in the knowledge economy being explored, legal protection of traditional knowledge has become more widespread attention by the international community, but the international status to protect the traditional knowledge was not optimistic. The protection of traditional knowledge so far has no breakthrough in the progress of international coordination, the legal protection patterns is one of the focus controversies in traditional knowledge.Chapterâ…¡deep analyses the legitimacy of traditional knowledge for intellectual property protection. This part is the core theory. First, the author explains different opinions on legal protection pattern of traditional knowledge, we can summarize two issues: First, the traditional knowledge should be included in the systems of intellectual property or not? Second, if included in the protection of intellectual property rights system, what can we do when the intellectual property system is not suitable for traditional knowledge, make appropriate adjustments expansion of the intellectual property system or make special provision for the protection of traditional knowledge? Then, by a new thorough analysis on the "public domain" theories, author point out that the intellectual property in the public domain is not a static concept. The definition of"public domain"is never static. Either from the human rights protection, or from traditional knowledge and intellectual property, there is sufficient evidence: protecting traditional resources through the intellectual property system is not only legitimate but also necessary. Traditional knowledge for the protection of intellectual property rights is in line with the principle of equality, respects for human rights, playing an important role in the use of traditional knowledge. The author argues that traditional knowledge should make use of the existing intellectual property system and formulate the specific requirements applicable to traditional knowledge.Chapter III describes what China should do when the main international protection of traditional knowledge is not perfect enough. This is the most important part. In this part, author firstly analyze the status of traditional knowledge in China. China's traditional knowledge resources can be divided into three categories: traditional medicine, folk literature and art and bio-diversity related with traditional knowledge. However, in a globalized market and the developing process, they are facing to various crisis, then effective protection measures are needed; the essay discusses the status of the protection of traditional knowledge resources synthetically; Finally, from the domestic legislation and international treaties, according with the international protection status of the traditional knowledge, China must make a decisive choice as soon as possible, in international negotiations, the author advocates that we should stand to putting the traditional knowledge into the framework of TRIPS. actively contribute to establish the traditional knowledge protection system within TRIPS; Meanwhile, according to our station, China should insist on the combination of public law and private law. The public protection of traditional knowledge is Administrative protection, private protection is the protection by intellectual property law. There are close relationship between them. Public protection is the foundation of Private protection, only the preservation of traditional knowledge in modern society, the private right can be protected. And, the correct private law is also good for the realization of public law. Therefore, in order to improve the protection of traditional knowledge systems, we must attach importance to the public and private law together, "two hands", "attaching equal importance to both." In the private level, the author proposes to draft some special provisions applicable to traditional knowledge by the existing intellectual property protection system. In the meanwhile, through analyzing"profit balance theory"deep, author seek to construct a fair and reasonable balance between the interests to improve the protection of traditional knowledge systems.At present, the international community is just beginning to discuss the whole issue of international protection of traditional knowledge. Many are still under the unknown condition. Well, this is difficult to reach a consensus in the current situation, the developing countries should take positive action to emphasize traditional resource protection. Because in the short term, it is unlikely to get the equal competition with the developed countries by technical innovation and knowledge, Only by putting the protection of traditional resources into the TRIPS, we can make those vulnerable people have a reasonable interest in the process of economic and social development before the traditional resources vanish. As the country which have the most rich traditional knowledge in developing countries, China should play an important role, on the one hand, in domestic legislative level, continuously explore effective legislation patterns and ways to protect traditional knowledge; on the other hand, strengthening international cooperation and exchanges to achieve an early international treaty on the protection of traditional knowledge.