中国民族地区遗传资源及传统知识的保护与惠益分享

On Protection and Benefit-sharing of Genetic Resources and Associated Traditional Knowledge in the Ethnic Areas of China

遗传资源及相关传统知识的保护与惠益分享已成为国际生物多样性和知识产权等论坛的重要热点议题。《生物多样性公约》(CBD)正在谈判建立遗传资源及相关传统知识获取与惠益分享的国际制度。中国广大少数民族地区遗传资源及相关传统知识非常丰富。但由于大规模经济开发和外来文化渗透,遗传资源和传统知识正面临丧失威胁。本文根据中国实际,阐述了与生物多样性相关传统知识的概念与范畴;介绍了国际上有关遗传资源和相关传统知识"生物剽窃"的案例背景;分析了《生物多样性公约》等国际论坛在建立遗传资源及相关传统知识获取与惠益分享国际制度方面的谈判进展。并针对中国在传统知识保护方面存在的问题,提出加强遗传资源及相关传统知识保护的行动措施。

Protection and benefit-sharing of genetic resources and associated traditional knowledge （TK） has become an issue under heated discussion in the international forums on biodiversity conservation and intellectual property protection. An international regime for access and benefit-sharing of genetic resources and associated TK is underway for inter-governmental negotiations under the Convention on Biological Diversity （CBD）. Other international forums, such as WTO/TRIPS （World Trade Organization / Trade-Related Aspects of Intellectual Property Rights） and WIPO （World Intellectual Property Organization）, also focus on this issue for discussions or inter-governmental negotiations. As China has a long agricultural history and is a country with mega-biodiversity, there are rich genetic resources and associated traditional knowledge in the vast territory of ethnic minority areas in the country. In many places of these areas, local people and communities still keep the traditional cultivation modes and lifestyles, which are beneficial for biodiversity conservation and the sustainable use of biological resources. However, the increasing scale of economic development and cultural invasion in these ethnic areas seriously threaten genetic resources and associated traditional farming modes and practices, many of which have faded out. In this paper, the concept and categories of traditional knowledge associated biodiversity are clarified according to actual situation in China. They are traditional genetic resources for crop varieties and animal breeds, traditional medicines, traditional farming modes and traditional processing technologies as well as traditional lifestyles, traditional cultures-involved biodiversity conservation and the sustainable use of its components, and geographical indicators for traditional bio-goods. Also, international cases of＂bio-piracy＂ are introduced, such as traditional rice in India and wild soybean in China. Furthermore, current progress of negotiation of an international regime on access to and benefit sharing of genetic resources and associated traditional knowledge under the Convention on Biological Diversity is analyzed and other negotiations under WTO/TRIPS and WlPO on patent issue of genetic resources and TK are also introduced. In addition, based on the analysis of current problems in the TK protection in China, a series of countermeasures and actions are proposed and discussed, i.e. to establish national legal and policy framework to protect TK and associated genetic resources, including establishing certificate system for the origin of genetic resources and TK, to require source certificates of genetic resources and TK when a relevant patent is applied, and to enhance survey, inventory, documentation and database for TK and associated genetic resources in ethnic minority areas of China.