| Traditional Knowledge(TK) is invented and used by Indigenous People in a long history.Meanwhile,it is one favourable wealth of developing countries to play with developped countries.However,some cartels of developped countries,with competitive advantages,have been franchised for Intellectual Property privileges by re-analysing TK of Indigenous People in developing countries.In accordance with favourable rules of International IP,these cartels have obtained vast profit of bussiness,but Indigenous People who possess these TK have nothing about it.Consequently,why and how we strengthen protection of TK is one problem of deserving research.This article is divided into four parts except the foreword and the epilogue,and synopsis of it is following:Partâ… ,by retrospect and analysis,makes an introduction of TK,including the definition, the legal characteristics and the realistic significance of TK.According to definitions of TK of international organizations,TK has two implications:TK lato sensu comprises Expressions of Folklore,Traditional Scientific and Technological Knowledges and Traditional Marks;TK stricto sensu,based on tradition,exclusively refering to Technical Knowledges of agricuture, medicine,biology and live,is invented by intellectual actions and can be used in market-directed economy.By differentiating TK,Genetic Resource and Express of Folklore, we can take a conclusion:In order to avoid attaining outcome of discussion inconsistent and inordinate in sessions of WIPO-IGC,TK being comprehended to TK stricto sensu is indispensable.Therefore,"TK" of this article largely refers to TK stricto sensu.In the meantime,author of this article also analyzes the legal characteristics and the realistic significance of TK.Partâ…¡analyzes the legitimacy of TK protection.Legitimacy In Law refers to interpretation of Legality.As opposed to Max Weber,Habermas's opinion is that Legitimacy legal domination of Positivism comes of morality implied in legal forms.Therefore,the legitimacy of protection of TK is based on natural jurisprudence inseparate from morality. Analyzing from natural jurisprudence,exploitation of TK is beneficial to improve Ingenious People's life and to solve problems of public health of them.By strengthening the protection of TK,it is useful to promote overall development of Indigenous People's economy,health and lives.Moreover,it is useful to accomplish the human rights of Indigenous People. Meanwhile,Rawls's Theory of Justice tell us that,by strengthening the protection of TK besides conservation and development of TK,together with accomplishment of Access and Benefit Sharing(Differential Principle in international IP system),Formal Justice can be made into Substantial Justice.Analyzing from economics,Externalities tell us that,protection of TK accordinated by multiplex ways can achieve balance,which can reduce total cost of public action,between holder of TK and public users.According to Matthew Effect of economics, Biopiracy results in phenomenon that Indigenous People will lose their existent space and capability of development and they will be more distressed than before.Consequently,we must confront and protect TK resources of Indigenous People in broad developing countries.Partâ…¢interprets conflicts between TK and IP system thoroughly.Firstly,by comparing public domain issues,including the implication,purposes and reservation of public domain in IP laws,with TK issues including the definition,the legal characteristics of TK,we can conclude that protection of TK isn't inconsistent with public domain in IP laws.Secondly, because Inventiveness of IP becomes open state of endless development and TK belonging to dynamic knowledges is not conservative knowledge,Tradition of TK isn't inconsistent with Inventiveness of IP system.Lastly,analyzing from the essential characteristics and tropism of development,IP right essentially belongs to civil rights of economic body in market-derected economy.The group character of TK's holder can not explain the public right of TK,and TK right can be understanded to a civil right of indigenous group.However,holder of TK In Legal Level would be prescribed multiplexly.Multiplex holders of TK,including natural persons,legal persons and some other organizations,would exert the functions and affections of every body in market system.In a word,the group character of TK's holder can be harmonious to the body character of IP.Partâ…£constructs material pathway of TK protection.IP system wasn't and isn't the only instrument to protect intellectual outcomes and other knowledge's achievements past and now. Accordingly,whether we put TK into objects of IP right or exclude TK from objects of IP right,it can not become obstructor and negation for protection of TK in itself.Because there is a profound relation between TK and objects of IP,IP system becomes an organic component of the multiplex protection system of TK.Therefore,the problem of TK protection is actually how to make coupling and transcendence between protection of TK and IP system. As same as IP rights,TK rights can be divided into positive rights and defensive rights: Positive rights of TK refer to rights that holders of TK can obtain,and defensive rights refer to rights that holders of TK can exclude from usage of others.Consequently,the synthetic protection of TK includes positive protection and defensive protection.Positive protection mainly includes property protection system,Compensatory liability Regime,and respecting customs and rules.Defensive protection mainly inclues documentation of TK and Disclosure of Origin regime.The key to protecting TK is how to bring to fruition the function of these systems.In a word,protection of TK is one synthetic system of works.It is dispensable for our country to erect one systematic protection regime of TK from conservation&succession to usage&protection thoroughly.Meantime,we should realize that,if we only strengthen the protection of TK itself without caring for social cutural circumstance of TK or neglecting the rights and interests of TK holders,it will run counter to initial purpose of TK protection and disorder the operation of TK protection system. |
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