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传统知识的处境如今颇为矛盾。传统知识在逐渐被侵蚀的同时,也日渐成为科学家感兴趣的研究对象。在这种语境下,传统知识拥有人抱怨他们的知识被剽窃,并且提出两组要求。首先,要求对他们的知识产权进行某种程度的保护。其次,要求尊重他们的习惯法,认为他们并不是要求获得新的权利,而只是要求尊重他们已有的权利。关于第一组要求,虽经多年争论,但仍无多大进展;这可能是因为参与辩论的人依赖基于权利的辩护理由,但这些辩护理由无助于设计有效的、可转移的财产权。我建议采取双重路径:首先,着眼于传统知识拥有人的实践;其次,采用实用主义的辩护理由,这类理由能为设计有效的财产权提供有用的见解。我的结论是:有强有力的论证支持创建传统知识数据库。第二组要求因为被视为要求自决权的政治主张,因而没有取得任何进展。我同样建议采取实用主义的进路,这样就能把这类主张视为将基于习俗或规范的创新体系与知识产权法的法律体系相结合的要求。我们于是便能够检视已在其他一些基于规范的创新体系中得到检验的解决方法,这些创新体系同样需要加入知识产权的法律体系。
The situation of traditional knowledge is quite contradictory. As traditional knowledge is gradually eroded, it becomes an increasingly attractive subject for scientists. In this context, traditional knowledge owners complain about the plagiarism of their knowledge and ask for two sets of requirements. First, there is a call for some degree of protection of their intellectual property. Second, there is a call for respect for their customary law, believing they are not asking for new rights, but only for respecting their rights. With respect to the first set of requirements, there has not been much progress in the debate over the years; this may be because those involved in the debate rely on rights-based defense reasons, but these defense grounds do not help to design effective transferable property rights. I suggest a dual approach: first, focusing on the practice of traditional knowledge owners; second, using pragmatic justifications that provide useful insights into the design of effective property rights. My conclusion is that there is a strong argument that supports the creation of databases of traditional knowledge. The second set of demands did not make any progress because they were regarded as political claims that required the right of self-determination. I would also like to suggest a pragmatic approach so that such claims can be seen as a requirement to combine an innovation system based on customs or norms with the legal system of intellectual property law. We will then be able to examine solutions that have been tested in other normative innovation systems that likewise need to be part of the legal system of intellectual property.