Journal of Legal, Ethical and Regulatory Issues (Print ISSN: 1544-0036; Online ISSN: 1544-0044)

Abstract

How is the Owner of "Traditional Knowledge Right"? A Perspective of International Law and the Case of China

Author(s): Chenguo Zhang

Traditional Knowledge (TK) used to be deemed as public domain excluded from the protection of intangible property right. Despite the fierce debate proposing a special intellectual property right (IP) to protect TK, this paper finds that TK is substantially different from latter and sui generis mechanisms to protect TK are required. Following the analysis on the recent discussions in international communities such as Convention on Biological Diversity (CBD) and World Intellectual Property Organization (WIPO), the paper addresses the most difficult question as who is the subject/owner/right holder of TK and how this could be defined. The paper proposes to protect TK as a collective right in in Chinese law comparable to the diffuse interest protection in German law, adopting the mechanisms introduced by CBD and WIPO, inter alia, the prior informed consent and fair benefit sharing.