Academic journal article Journal of Legal, Ethical and Regulatory Issues

How Is the Owner of "Traditional Knowledge Right"? a Perspective of International Law and the Case of China

Academic journal article Journal of Legal, Ethical and Regulatory Issues

How Is the Owner of "Traditional Knowledge Right"? a Perspective of International Law and the Case of China

Article excerpt


The definition of traditional knowledge (TK) commonly adopted by the international community is that proposed by the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) of the World Intellectual Property Organization (WIPO) in "The Protection of Traditional Knowledge: Draft Articles (The WIPO Treaty)."1 Article 1.1 of the WIPO Treaty specifies that traditional knowledge includes know-how, skills, innovations, practices, teachings and learning's developed within an indigenous or local community and that is passed on from generation to generation. According to the "Convention on Biological Diversity" (CBD), traditional knowledge is "knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.2 Article 2 of "Intangible Cultural Heritage Law of the People's Republic of China (Intangible Cultural Heritage Law)"3 defines intangible cultural heritage as "various traditional cultural manifestations which are handed down by the people of all ethnicities from generation to generation and regarded as a constituent part of their cultural heritage and physical objects and premises related to the traditional cultural manifestations." Although the definitions of intangible cultural heritage mentioned in the "Intangible Cultural Heritage Law" and the traditional knowledge (associated with biological and genetic resources) discussed in this study are closely correlated, they are two different concepts of two different areas.4 Intangible cultural heritage focuses on the protection of "manifestations," whilst traditional knowledge emphasizes the tradition-based "knowledge and information" in the fields of agriculture, medicine, environment and biodiversity.5 The intangible cultural heritage referred to in the Intangible Cultural Heritage Law is highly consistent with the "traditional culture expressions" discussed in the WIPO system at both the connotation and denotation levels.

Since decades, there is increasing awareness of TK value on the global market. The research of TK protection has been stimulated the fierce debate persists in the international community. In recent years, China's legislation in this area has progressed rapidly6. To a certain extent, the legal vacuum in this regard7 has been filled in the relevant fields in Chinese law. However, numerous questions in this field remain not answered. For example, it is a feasible approach to protect TK following the Intellectual Property system? Who is the subject (owner/holder) of TK? For whose benefit shall TK be "protected"? If TK involves rights, who should be entitled to these rights and how should these rights be enforced? More specifically, how to define the "rights" in TK that is typically bound to an ethnic group or region and thus fairly difficult to delineate?

This study proceeds in four parts. Part 2 addresses the divergence between the TK and the intellectual property right (IPR) regimes. After a brief summary of the controversies in academia regarding the proposed "property rights" of TK, Part 4 and Part 5 address the recent global developments in TK-related issues, focusing on the question as how to identify the subjects/right holders of TK. Part 6 discusses the two most controversial issues left by the WIPO Treaty regarding the subject matter of the paper and Part 7 presents a conclusion.

The Essential Divergence between the TK and the Intellectual Property (IP) Regimes

In terms of the protection of the (documented) TK, the following questions are especially noteworthy: Should the protection of the TK be subject to the same mechanisms adopted for public or private knowledge rights? Should the existing systems of intellectual property (IP) rights be applied to protect TK or should a sui generis system be established to protect the "rights" of TK? If so, what would the subject, object and content of such rights? …

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