Legal Protection Of Traditional Knowledge In China

"Traditional knowledge"(TK) has been used in two sense. In general sense, TK embraces traditional culture expressions/expressions of folklore and technical traditional knowledge. In strict sense, TK refers to technical traditional knowledge, which is used by most international fora. In this thesis, TK is also used in strict sense.In recent years, the value of TK has been widely recognized, and many multi-national enterprises collect TK freely from less developed countries for research and commercial utilization. Based on TK, they make technical creations in a short time, and these creations are granted patent in their countries, which bring them rich profit. On the contrary, less developed countries must pay high price for the use of patented technology and products. This situation is not fair. The unequal utilization of knowledge resource between developed and less developed countries has widened the gulf of economy between the two parties. So some less developed countries require the international society to provide legal protection for TK. On international dimension, Convention on Biological Diversity (CBD), World Intellectual Property Organization (WIPO), World Trade Organization (WTO), Food and Agriculture Organization of United Nations (FAO) and etc. have discussed the legal protection of TK, and some of them have cooperated on this issue. But because of benefit conflicts, the conformity with other international conventions, the international legal protection standards and etc., the process of international legal protection is very slow. On national dimension, some countries, such as Philippine, India, Thailand, Peru, Costarica, Panama, have provide legal protection for TK in their constitution and other laws.China is a country with a long history. Our people have created a lot of TK in the areas of medicine, health-care, agriculture, biology and etc., which have great value in science research and commercial utilization. But because of its unique characters, TK cannot be well protected in existing intellectual property system. So, discussing the legal protection of TK is important to our country.The ultimate reason for the legal protection of TK is benefits sharing: some TK has commercial utilization value, but its right holder is not acknowledged by law, that is why some countries require protecting TK. So it's suggested in this thesis that our country should provide legal protection for TK in the perspective of commercial utilization, taking the commercial utilization and commercial benefits sharing of TK as our policy objectives.This thesis consists of introduction and seven chapters.Introduction consists of three parts. The first part introduces the background and the meaning of this writing; second part gives review to the international research and legislation; third part analyzes the research object, research methods and research approach. Chapter one mainly analyzes what is TK and what are the unique characters of TK compared with modern knowledge. Chapter two demonstrates the justice and the necessity of providing legal protection for TK. Chapter three demonstrates the policy objectives and basic principles of TK legal protection. Chapter four analyzes the international legal protection for TK and some foreign countries'legislation of TK protection, from which our country can use for reference in our legislation of TK protection. Chapter five consists of three parts. The first part analyzes the existing legal protection of TK in China; second part analyzes what policy objectives China should take. And based on the two parts, the third part proposes that China should firstly establish a sui generis system for the positive protection of TK. Chapter six consists of three parts. The first part analyzes what TK should be protected in the sui generis system, and proposes that TK protected in the sui generis system should conform to"commercial novelty","culture relativity"and"commercial utility". Second part analyzes who can be the right holder of TK, and points out that the individual of local community, the local community and the state can be the right holder of TK. The last part analyzes the rights on TK, limitations to the rights, the registration of TK and the expiration of rights. Chapter seven analyzes how the right holders to realize their rights and how they can get right relief when their rights were infringed.There are some novelties in this thesis:First, this thesis suggests that the legal protection of TK in our country should based on the perspective of commercial utilization, taking the utilization of TK and commercial benefits sharing as main policy objectives.Second, based on the unique characters of TK and the policy objectives of China, three standards of objects are proposed,"commercial novelty","culture relativity"and"commercial utility".Third, based on the limitation of TK right holders, it's suggested that the right holders can realize their benefit through private trust.