The Study On Legal Protection Of Traditional Medicine Knowledge From An International Perspective

Traditional medicine shows unique advantages in medical practice even today when science and technology are experiencing rapid development day and night.That is why some western companies and other units are making use of it to generate enormous economic returns.However,people who contribute significantly to the formation and accumulation of traditional medicine through long-term efforts are not getting reasonable benefit in this process.Obviously,it is unfair.In China,legal gaps still exist in laws and regulations on traditional medicine.Particularly,the features of traditional medicine knowledge are not reflected in Intellectual Property Law, including Patent Law,Trademark Law and Copyright Law.Therefore,it is difficult to provide effective protection.This thesis compares and analyses efforts by the international community for the protection of the traditional medicine knowledge and practices by other developing countries.Then the tendency and features on this issue would be identified and suggestions for protection in traditional Chinese medicine knowledge would be offered.In the first chapter,such definitions as traditional medicine knowledge,traditional knowledge and traditional Chinese medicine knowledge are given and compared so as to make sure of their relations.Traditional medicine knowledge belongs to traditional knowledge which includes traditional Chinese medicine knowledge.Therefore,under most circumstances, methods or legal provisions for traditional knowledge could be applied to protection of traditional medicine knowledge.Meantime,protection system for traditional medicine knowledge should be considered and covered by that for traditional knowledge.The second chapter discusses relations between traditional knowledge and modern intellectual property system.This question is so important as to decide the protection model for traditional medicine knowledge.The intellectual property system was established by Western civilization in order to encourage the innovation in modern intellectual property rights.Given the unique features of traditional knowledge, conflicts between them are inevitable.The existing system of the in intellectual property right has its defects and could not provide adequate protection for traditional knowledge in practice.However,as a relatively ripe and complete legal system,it can play a proactive role in protecting biological resources and traditional knowledge. Therefore,the existing system of intellectual property right should be fully made use of since the special regime for protecting traditional knowledge has not been set up completely. In the third chapter and the fourth chapter,the international and internal contexts are introduced.The former part explains the international consensus as well as the problems.The analysis on several typical cases shows the differences between developed countries and developing ones on the issue in question.The latter part discusses the features of traditional Chinese medicine knowledge as well as the protection situation.In particular,related rules are explained and the most recent progress in modification of the patent law and the trademark law and legislation of traditional medicine law are analyzed.The fifth and sixth chapters are in regards to the international practice in the protection of traditional medicine knowledge.This chapter discusses the international efforts at a perspective of human right.It introduces relative international treaties such as the Convention on Biological Diversity and practice by some global institutes including World Intellectual Property Organization.In particular,laws and practices of such typical countries rich in traditional medicine as Zimbabwe,India,Laos and Thailand are given in detail.Also,the legislation model of these countries are summarized and commented.Governments could play an active role in protecting traditional medicine knowledge.Through separate legislation or comprehensive legislation,developing countries may establish and improve special laws on intellectual property right protection for traditional medicine knowledge.The seventh chapter provides suggestions on the completion of intellectual property law and special legal regime for the protection of traditional medicine knowledge. Given the unique features of traditional medicine knowledge,the existing western modern intellectual property law regime could not offer full protection and would not be conductive to the succession,protection and promotion of traditional Chinese medicine knowledge.So,based on accurate,comprehensive understanding of the features of traditional medicine knowledge,global cooperation should be strengthened and efforts should be made to improve intellectual property law and special protection regime.Only by this,would a legal protection system on the problem in question be established in line with the context of globalization,informationization and the requirement of the development of traditional medicine.