Legal Protection Of Traditdional Knowledge

Traditional knowledge is the foundation of the survival and development as to a nation,a country and even to all mankind.The protection of traditional knowledge is utmost importance not only in the maintenance of cultural diversity,but in the promotion of a culture of excellence as well.It also plays an irreplaceable role in the development of economy and in the sustenance of social aspects."China Agenda 21", adopted on March 25,1994 by the executive meeting of China’s State Council,has clearly highlighted the importance of the protection of traditional knowledge.Many developing countries believe that the protection of traditional knowledge,whether it is domestic legislation or international legislation,it should not be considering on how to incorporate traditional knowledge into the protection by the existing intellectual property laws;rather,the legal protection of traditional knowledge should be separated from the regime of intellectual property protection and should be based upon the special attributes and characteristics retention,maintenance and reproduction from generation to generation of the traditional knowledge.It is needed to establish its own legal protection systems and mechanisms by the adoption of domestic legislation,law enforcement and judicial activities to protect the traditional knowledge,and these systems and mechanisms shall be laid as a foundation for the regional agreements and international conventions. The reason as discussed in this paper for legalizing the protection of traditional knowledge is that it is a must to establish a functioning legal order for the use of traditional knowledge,and the mechanism shall be established by a country,a government organization or a particular group who shall organize the "management system of utilizing differentiation" and the mechanism of "the use by taking a license",and thus achieve the "make the best use of" purpose.With respect to the "management system of utilizing differentiation",the paper develops the concept of "public domain" and the "proprietary domain" in determining the scope of protection for traditional knowledge.The paper also provides a suggestion that the "traditional knowledge in public domain" and the "traditional knowledge in proprietary domain" should be drawn a clear line in between and should be protected by different laws.In addition,regarding the context of "the use by taking a license",this paper maintains that "collecting societies" based on the premise of a market force,through which,as a tool,all interested parties of traditional knowledge can be united for the holders of traditional knowledge to obtain economic,social and cultural gains,and it is the most effective means the protection and development of traditional knowledge.Meanwhile,this paper discusses that it should be clearly identified that the protection of traditional knowledge is a systematic project.The complexity of traditional knowledge itself has determined that the protection of traditional knowledge should be relying upon a comprehensive means,and the tangible approach should also be in line with local conditions,which may vary in different forms.It can be considered to set up a framework or a principle by domestic legislation for the protection of traditional knowledge and to give sufficient authorization to the individual local region.As for the international legislation,this paper mainly bases on the protection mechanism set forth in the documents of the United Nations (UN)/Convention on Biological Diversity(CBD) and World Intellectual Property Organization(WIPO) to conduct an in-depth research and to explore,through the research results and practical experiences gained by a variety of international organizations and national researches.It also elaborates the comparison among the different protection mechanisms used by traditional knowledge,intellectual property protection,and CBD to contribute the overall understanding of the essence and its practical measurements for protecting and using the traditional knowledge from the international dimension.The purpose of this paper is to form an all-round comprehensive legislation mechanism,to develop a practical and effective measurement to protect the traditional knowledge,and finally to achieve the goals of protection,sustenance and innovation of traditional knowledge.