论中医药传统知识权利主体的类型——兼谈我国立法的完善思路

Discussion on the Types of Subject of Right of Traditional Chinese Medicine Knowledge:On the Improvement of Legislation in China

我国颁布的《中医药法》对中医药传统知识的保护问题作出了原则性规定,赋予了中医药传统知识持有人以相关的权利。但“中医药传统知识持有人”不能涵盖中医药传统知识权利主体的全部类型,还应当赋予中医药传统知识拥有人、传承人以相应的权利。因此,需要完善立法中关于中医药传统知识权利主体的规定,目的是对真正应当享有权利的主体赋予权利。当前可以采取的立法思路有三种:一是尽快出台“中医药传统知识保护条例”,二是适时修改《中医药法》,三是研究制定“传统知识保护法”。

The Law of Traditional Chinese Medicine has made principled provisions on the protection of traditional Chinese medicine knowledge, which gives the holders of traditional Chinese medicine knowledge relevant rights. However, the “holder of traditional Chinese medicine knowledge” can not cover the types of subject of right of traditional Chinese medicine knowledge, and we should also give the owner and inheritor of traditional Chinese medicine knowledge the corresponding rights. Therefore, we need to improve the legislation on the subject of right of traditional Chinese medicine knowledge, in order to give the right to the subject who should really hold the right. At present, there are three ideas to be adopted: first, to promulgate “the Regulations on the Protection of Traditional Chinese Medicine Knowledge” as soon as possible;second, to amend the Law of Traditional Chinese Medicine at the right moment;and third, to study and formulate “the Law on the Protection of Traditional Knowledge”.