Within the context of building a community for the Chinese nation, fine traditional Chinese culture has emerged as a core competitiveness in advancing the Chinese path to modernization. However, the current absence of a benefit-sharing mechanism for this culture, and its systemic incompatibility with the Western-dominated intellectual property system, are detrimental to building a community for the Chinese nation. Exploration reveals that, based on the Marxist labor theory of value, fine traditional Chinese culture can be justified as property; and based on Locke’s labor theory of property, it should be accorded property rights. Thus, fine traditional Chinese culture can be included as the subject matter of property rights. Protecting fine traditional Chinese culture aligns with the original purpose of the intellectual property (IP) system, which should not be confined to safeguarding “knowledge innovation” but should also emphasize “knowledge transmission.” Expanding the IP system to protect fine traditional Chinese culture is conducive to China’s engagement in the global intellectual property landscape. A new form of intellectual property—traditional cultural property rights—should therefore be created. Traditional cultural property rights refer to the direct and exclusive rights held by rights holders, defined as the communities in specific regions, over specific traditional cultural expressions according to law. The protectable subject matter would encompass cultural traditions characterized by their intergenerational continuity, communal identity, and intrinsic value. The scope of these rights would include control over use, authorization of use, and the right to benefit from such use. The construction of a protection system for traditional cultural property rights should establish the principles of perpetual protection, collective protection, and regional protection.
The topics concerning intellectual property and the protection of traditional resources have been under international discussion coordinated by the World Intellectual Property Organization (WIPO) for more than 20 years. The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge was achieved based on the consensus of the origin-disclosure principle and defensive protection preventing the erroneous grant of patents, which leaves a gap with the “prior informed consent + sharing of benefit” mechanism championed by the Convention on Biological Diversity. For the traditional cultural expressions or folklore available in public, the copyright-like protection is controversial due to the obvious divergence between the view of exclusive rights protection and that of free public domain. From the trend of negotiations on reaching an international instrument, a shift from the expectation of “license & royalty” to “attribution & moral rights” as a bottom line might be more realistic for the protection of such folklore already in the public domain, and it is desirable to fully utilize the existing intellectual property system to safeguard the transmission and utilization of folklore by local communities. Adjustments to domestic law should follow the same rationale.
As a crucial component of traditional Chinese medicine (TCM), the traditional knowledge of traditional Chinese medicine (TKTCM) holds significant value in health care, economy, science and technology, culture, and ecology. However, it currently faces a dual predicament: misappropriation and unauthorized use by foreign entities, coupled with inadequate preservation and protection domestically. The existing legal framework is incapable of providing comprehensive and systematic protection, making the establishment of a sui generis protection system imperative. This sui generis protection system should address four core issues: defending against foreign misappropriation and bio-piracy, protecting the rights of TKTCM holders while regulating knowledge access and utilization, reconciling the interests of rights holders and broader public interests, and establishing effective integration with the current legal system. Accordingly, we propose that a sui generis protection system for TKTCM should comprise four key mechanisms: a defensive mechanism to block improper foreign patent applications, a rights protection mechanism for knowledge holders, an interest balance mechanism to mediate between holders’ rights and societal public interests, and an integrative mechanism to ensure synergy with existing legal frameworks. Through these mechanisms, the system aims to promote the protection, preservation, innovation, and development of TKTCM.
As an integral part of fine traditional Chinese culture, fine ethnic medicine constitutes a crucial element in forging a strong sense of community for the Chinese nation. In recent years, China has placed high priority on the legal protection of ethnic medicine, establishing a relatively preliminary and comprehensive legal protection system for fine ethnic medicine. However, due to factors such as the inherent uniqueness of ethnic medicine, its development still faces challenges. These include the need to expand and clarify the scope of protection, insufficient legal safeguards for its survival and inheritance environment, weak legal protection for development and transmission, and a lack of operational feasibility and regional distinctiveness in relevant legislation. To address these issues, it is imperative to construct a unified and coordinated legal protection system, optimize the entry system for ethnic medicine according to law, improve the protection system for ethnic medicine culture within a legal framework, strengthen the supervision and management system for ethnic medicine in accordance with the law, and ensure the correct development direction for ethnic medicine culture through legal means.
As an independent type of intellectual achievement, genuine geographical indications (GIs) are essentially product categories rather than commercial marks, and the legislation on them is a product protection system rather than a set of rules for mark protection. The scarcity, non-industrial nature, and public nature inherent to GIs are attributes of product categories. Their premium effect, their role in safeguarding traditional culture, and their function in supporting local development are all realized through product protection. A genuine GI system follows the legal logic of products in matters such as name genericization, reputation attributes, the scope of protection, and the relationship with trademarks. And its operational mechanisms in terms of the allocation of authority, the forms of expression, confirmation review, enforcement supervision, and even extraterritorial effect are all centered on product compliance supervision, which falls squarely within the domain of public law. The compromise and co-existence of product protection and mark protection in positive laws are the result of international realpolitik. Sui generis legislation, trademark law, and comprehensive industrial property codes providing the protection of GIs, according to the attribute orientation, could be divided into product protection mode, commercial mark mode, and hybrid mode. It is recommended that China’ s legislative approach to GIs be unified under a dedicated special statute, anchored in a product protection mode, and integrated with a national quality management system. GIs should be divorced from private law so that the protection of GI trademarks could be withdrawn from the product-specific regime and governed by the general law applicable to commercial marks.