A Research On The Ownership Of Biological Genetic Resources

The high value of biological genetic resources in economy,science,ecology,and culture lures most northern―gene-poor‖nations to carry out―bio-piracy‖against the―gene-rich‖yet underdeveloped southern countries.Given the exploitation of development opportunities by northern States,The Convention on Biological Diversity（CBD）was signed and came into effect during the last decade of the 20^th century.CBD affirms that States parties enjoy national sovereignty over biological genetic resources within their territory.Sovereignty,by its very nature,is the abstract appearance of the equal status among different nations under the international law,which only means that the State party‘s government has the right to freely choose domestic policies to protect and control their own biological genetic resources,without interference from other entities.Therefore,having the sovereignty over the genetic resources cannot,by itself,justifies the national ownership of such resources.The key factor that determines what policy should be chosen to protect and control genetic resources,is the value demand of Chinese society towards such resources.China enjoys high amount of genetic resources whilst suffers from a severe drain of them;in addition,China also has a relatively strong ability to utilize genetic resources.These realities respectively determine that the genetic resources control policy in China must realize the value needs of safety,justice,and efficiency.Among all kinds of private rights systems,the ownership（as one of the rights in rem）system can achieve these three value goals at the same time,and thus should be the optimal solution for China‘s policy choice.However,considering that the intellectual property right system is also capable of protecting genetic resources,the object category of the genetic resources ownership should be limited to biological species,genetic materials,and digital sequence information（genetic information）as scientific discoveries.Although genetic information is an intangible object,the digital sequence information formed after digitization is corporeal.In terms of controllability,present human science and technology can simultaneously realize factual and exclusive control of biological species,genetic materials,and digital sequence information.As for the specificity requirement,biological species,namely,wild animals,plants,and microbial populations,can be specified by means of population investigation,establishment of protection list and registration of ownership.The specificity of digital sequence information needs to be generated by the blockchain technology of non-fungible tokens（NFT）.The NFT can provide the distinguishable appearance required by the specification requirement.In the aspect of circulation ability,although digital sequence information is easy to be copied,its scarcity can be artificially created,as in the field of software distribution.Biological species,genetic materials,and digital sequence information except those restricted and prohibited by civil law can be exchanged.The ownership of the ownership of biological resources should not adopt the national unitary model,instead,the legislator should form a three-tier structure with state ownership as the main part,community,and individual ownerships as the supplement.The boundaries of ownership among the three should be obtained by combing the current separate legislation of natural resources.To implement the national demand for establishing property rights of natural resources and promote the separation of ownership and use rights of natural resources,the Civil Code should provide the basis of claim for the right holders of natural resources,and an ideal way to achieve this is to establish an―usufructuary right of natural resources‖.By establishing this new type of usufructuary right,the Civil Code can provide protection for various utilization rights of natural resources and can also relate to the future Environmental Code to jointly form the systematic protection of biological genetic resources.However,to create such right,legislators must regard―separation and acquisition‖as one of the contents of the biological genetic resource‘s ownership.At the same time,the activities of editing and modifying biological gene and digital sequence information are different from the use and disposal of things.Therefore,gene editing and modifying should be unique types of the contents of the biological genetic resources‘ownership.