Social Science
Intellectual property protection for traditional medical knowledge in China's context: a round peg in a square hole?
Nan Xia
Nan Xia
Faculty of Business and Law, Queensland University of Technology, Brisbane, Australia
Peer Reviewed
Abstract
This article is an examination of the extent to which traditional medical knowledge in China can be protected by intellectual property laws. The analysis begins by providing a global picture with regard to the historic origin of intellectual property, exploring the reasons why China does not have indigenous counterparts to the western system of intellectual property rights protecting its traditional knowledge (including traditional medical knowledge) and stating the problems of transplanting western intellectual property standards in China. A discussion follows on how China, under foreign pressure, has made efforts to comply with the changing standards mandated by various international, regional, and bilateral arrangements related to intellectual property, with examples of the development of China's patent law. China's approach towards the protection of traditional medical knowledge in various international fora related to intellectual property is explored. Finally, there is a specific examination of the compatibilities between the western system of intellectual property rights and traditional medical knowledge in China, at the national and community levels. This article argues that the system of intellectual property rights does not easily fit with China's traditional medical knowledge because of China's unique cultural traits, distinctive historical context and wide ethnic, religious, and local community diversity.
Key Questions
What challenges exist in protecting traditional medical knowledge (TMK) in China under current intellectual property (IP) laws?
China's unique cultural traits, distinctive historical context, and wide ethnic, religious, and local community diversity present challenges in applying Western IP frameworks to protect TMK. The communal nature of TMK and its transmission through generations complicate the application of individual-centric IP rights.
How has China's approach to IP laws evolved concerning TMK?
Under international pressure, China has made efforts to comply with evolving IP standards mandated by various international, regional, and bilateral agreements. This includes developments in China's patent law to accommodate the protection of TMK, though challenges remain in aligning these laws with traditional practices.
What are the limitations of transplanting Western IP standards to protect TMK in China?
Western IP systems often emphasize individual ownership and innovation, which may not align with the communal and traditional nature of TMK in China. This misalignment can lead to inadequate protection and potential misappropriation of traditional knowledge.
How does China's cultural diversity impact the protection of TMK?
China's vast cultural diversity means that TMK varies significantly across different ethnic and local communities. This diversity complicates the creation of a one-size-fits-all IP protection framework, necessitating more tailored approaches that consider the specific needs and practices of each community.
What are the potential solutions to improve the protection of TMK in China?
Potential solutions include developing sui generis systems specifically designed for TMK protection, enhancing documentation and databases of traditional knowledge, and fostering community-based approaches that empower local practitioners to manage and protect their knowledge.
