TRIPS框架下保护传统知识的制度建构

Protection of Traditional Knowledge in the TRIPS Framework:System Construction

基于TRIPS规定的利益平衡目标,可以将传统知识保护领域的利益关系区分为不同的形态,其利益平衡可以通过承认和保护传统知识的在先权利和知识产权等途径实现。新的机制可以通过对现有TRIPS规则的利用、改造和更新来建立。按照TRIPS的修正机制,积累在传统知识保护方面可能导致TRIPS改变或修正的新发展,是国际社会当前必须做出的努力。

To protect traditional knowledge in the TRIPS framework is an important topic for the change and development of international intellectual property system in the post--TRIPS era. Al- though TRIPS council has not discussed this topic materially, intensive and detailed research on this topic in academics will promote the discussion and provide it with relevant theoretical basis. The regime of TRIPS regulations is an important systematic resource to protect traditional knowledge. Therein to, provisions concerning to condition and procedure to get intellectual prop- erty can be used to avoid claims of intellectual property on traditional knowledge by others besides its holders. And provisions relating to the type of intellectual properties can make the holders of traditional knowledge claim intellectual property on it. However, it should be admitted that the regime of TRIPS regulations is still not sufficient to protect traditional knowledge. It is still a dif- ficult task to explore effective methods and forms to protect traditional knowledge in WTO. Al- though introducing new obligation to disclose the source of traditional knowledge in the existing TRIPS rules is of some help, it would provide more comprehensive and direct protection for tradi- tional knowledge to construct a special system suitable for its characteristics. It ＇s still an uncertain issue whether system arrangement to protect traditional knowledge, es- pecially the system arrangement related to change and innovation of TRIPS, will come true or not in WTO. Therefore, international society should exert to accumulate new developments that can lead to change or correction of TRIPS for traditional knowledge on the basis of correcting mecha- nism of TRIPS. Such efforts may include expanding domestic legislation on protection of tradi- tional knowledge, concluding a legal document on protection of traditional knowledge in WIPO as soon as possible, and adopting a Ministerial Declaration on protection of traditional knowledge as soft law in the Doha Round of WTO.