Research On Intellectual Property Protection Of Genetic Resources And Traditional Knowledge

Genetic resources are the materials containing genetic function units. They arefrom the plants, animals, microbial or other sources and have actual or potential value.According to the Convention on Biological Diversity (CBD), the definition oftraditional knowledge is made by the local community or indigenous people, thetraditional knowledge is relevant to the conservation and sustainable use ofbiodiversity, reflect the traditional ways of life. Along with the development ofmodern biological technology, more and more people realize the genetic resourcesand traditional knowledge’s great research and economic values, so many countriesare beginning to give enormous attention to the development and utilization ofgenetic resources and traditional knowledge. At present, the developed countriesplace more importance to biological genetic resources. Australia, New Zealand andother countries even look genetic resources management as the important base ofnational sustainable development, or as the symbol of national sovereignty.Compared with the developed countries, developing countries didn’t pay enoughattention to biological genetic resources and traditional knowledge management, thuspaid great cost. Developed countries rely on their own strong economic and scientificand technological strength, and adopt cooperative research, contributive buy or evensteal way to get and control the developing countries’ biological genetic resourcesand traditional knowledge in free or low-cost. The developed countries use advancedtechnology to develop the new products, such as drug or crop varieties, then apply forintellectual property rights protection, get patent technologies and patent productswhich are sold in high prices to make a profit. This is what developing countriescalled "biological pirates" phenomenon. Intellectual property rights promote the useand development of genetic resources in developed countries. Now even the organismitself can also be protected as the object of intellectual property rights by the intellectual property system. This trend was promoted and strengthened by TRIPSmade by the world trade organization in the global scope.The intellectual propertysystem has to be some methods and tools used by developed countries andbiotechnology company to conduct "biodiversity enclosure" or "biologicalplagiarism". The core values of genetic resources is intellectual property rights whichare exclusive owned by the developed countries. The biological technology andmedical companies of the western developed countries tear large amounts of geneticresources through various means from developing countries, and receive huge profitsthrough the genetic resources development, but the developing countries who are asthe genetic resources sovereign states who provide the genetic resources andtraditional knowledge did not get due rights and interests for a long time, especiallythe intellectual property rights and interests. Therefore how to modify the currentintellectual property right system in order to reach to protect genetic resources andtraditional knowledge, to prevent the biological pirates, is of great significance for theproblem.This article has three parts which are the introduction, the text and theconclusion. The main part has five chapters.The first part introduced the concept and characteristics of the genetic resourcesand traditional knowledge, expounds the huge value of genetic resources andtraditional knowledge in agriculture, medicine and maintaining biodiversity etc.The second chapter interpreted the legality of intellectual property protection ongenetic resources and traditional knowledge from value foundation and legal basistwo aspects. From the standpoint of the value foundation, on the one hand, thedeveloping countries and indigenous people have contribution in the retention, supplyand utilization of genetic resources and traditional knowledge, from the viewpoint ofbenefit shall be fair shared, they should share the resulting economic interests; On theother hand, due to developing countries in the reality encountering "biologicalpirates", making the genetic resources and traditional knowledge protection ofintellectual property rights become necessary and urgent."Biological pirates" is thatdeveloped countries relies on there strong scientific and technological and economicstrength to pirate genetic resources from developing countries, and use intellectual property system to get patent rights, then get high profits from the patent rights.Developing countries were not so profitable, more worse, they have to buy the relatedpatent products from the developed countries in a high price. From the standpoint oflegal basis, some international convention and international organizations related tothe protection of genetic resources and traditional knowledge such as the conventionon biological diversity (CBD), the world intellectual property organization (WIPO)make up the legitimacy base of genetic resources and traditional knowledgeprotection.The content of chapter3is about the protection on genetic resources andtraditional knowledge and the reconstruction of intellectual property protectionsystem. Today’s international intellectual property protection system is based on theinterests of the western developed countries. Now the scope of intellectual propertyobjects is being infinitely expanded, such as some living organisms also become theobject of intellectual property, as well as its high level and high strength protection,just making the current international intellectual property system become tools usedby developed country to contact biological pirates and get huge profits, at the sametime developing countries cannot fairly share the portion of interests. Between TheTRIPS agreement and CBD, there exists conflicts which makes the CBD can’tactually protect traditional knowledge and genetic resources very well, therefore, thepresent international intellectual property system need to be revised to effectivelyprotect the genetic resources and traditional knowledge and to realize the fairdistribution of the interests between developed counties and developing counties, andalso to achieve the purpose of protecting biological diversity.The fourth chapter discusses how to use the specific intellectual propertyprotection mechanisms such as the farmers’ right, commercial secrets, geographicalindication protection and so on to protect the genetic resources and traditionalknowledge. This part also analyzed the shortcomings of each mechanism when theyare use to protect genetic resources and traditional knowledge.Chapter5mainly introduced the present situation of the loss of legislation aboutgenetic resources protection in our country. Our Chinese don’t have speciallegislation on genetic resources, and the current laws are also lack of regulations about benefit-sharing mechanism advocated by international society. We should learnexperience from international society and other countries’ excellent legislation, toperfect our country’s genetic resources protection system.