生物遗传资源权属国际制度安排的冲突、协调及中国的应对策略

Conflicts and Harmonization in the International Regime for Proprietorship of Biological and Genetic Resources and Policy Options in China

在现有知识产权制度安排下,曾经作为全球性公共物品的生物遗传资源正不断被发达国家利用植物新品种权、基因专利等工具竞相圈占为其私有物品,生物多样性丰富的发展中国家对此非常不满,要求在国际间建立公正的遗传资源惠益分享制度。本文主要从揭示遗传资源圈占与利益矛盾的问题根源出发,通过总结近20年来生物遗传资源权属国际规则的制定和演进过程,剖析《生物多样性公约》、《粮食和农业植物遗传资源国际条约》、《与贸易有关的知识产权协定》和《植物新品种保护国际公约》等相关国际制度在遗传资源获取、惠益分享与知识产权等问题的矛盾与冲突之处,最后提出现有国际体制的协调措施,以及我国为满足国际遵约要求的应对策略。

Within the context of the current intellectual property right system,developed countries are now increasingly making use of plant variety rights and gene patents to claim biological and genetic resources and then dominate these former global public goods as their private goods.Ironically,as the primary upstream providers of resources,developing countries could not gain any returns from the downstream utilization although they contribute substantially to the conversation and proliferation of plant genetic resources for a long time.So in international negotiations over the past two decades,developing countries have always been criticizing developed countries’ bio-piracy actions and advocated establishing a fair benefit-sharing mechanism.This study firstly explored the origin of problem and summarized the progress of international arrangements over the proprietorship of biological and genetic resources.In particular,conflicts in the subject of access and benefit-sharing and intellectual property in different regimes,such as Convention on Biological diversity（CBD）,International Treaty on Plant Genetic Resources for Food and Agriculture（ITPGRFA）,Trade-related Aspects of Intellectual Property Rights（TRIPS）,and International Union on the Protection of New Varieties of Plants（UPOV）,were analyzed.Finally,some possible approaches to harmonizing the international governance and policy options for China were proposed.The main findings were summarized as the following.Developed countries stand by the TRIPS and UPOV system,which strengthen private exclusive rights of intellectual property on the use of genetic resources.Developing countries favor CBD and ITPGR,which pay more attention to the interests of resources providers.So the international governing regime is inherently contradictory and essentially impedes the progress of benefit-sharing.While the CBD advanced in adoption of the Nagoya ABS protocol,which is seen as a great milestone in the ABS issues,the CBD still merely give policy recommendations to each member state.Neither disclosure nor international certificates of origin are mandate obligations.The actual implementation completely depends on national legislation and policy initiatives of member countries.Moreover,member countries,if they are also WTO members,must comply with TRIPS requirements when consider working out the relevant domestic ABS framework according to CBD.Obviously if TRIPS doesn’t accommodate CBD,any proposed ABS scheme will not function very well in the end.China has not carried out the practical ABS institutional system to keep in line with the ABS requirements of Nagoya protocol.At present,the first step the government should take is to establish a domestic registration system for genetic resources which is the technical infrastructure of the ABS system,and then promote the standard material transfer procedure with indispensable ABS provisions between the providers and users.