The clash between the global North and South through the lens of a Chinese observer

The chapter written by Jianqiang Nie “The Relationship between the TRIPs Agreement and the Convention on Biological Diversity: Intellectual Property and Genetic Resources, Traditional Knowledge, and Folk Protection from a Chinese Perspective” in the book “China´s Influence on Non-Trade Concerns in International Economic Law” provides an insight into the complex world of intellectual property, genetic resources, folklore and traditional knowledge. The common denominator of these subjects is that they do not fit to prescribed categories. Due to their overlapping nature, their regulation represents a herculean task for legislators aiming to respect and balance the often-competing interests of the stakeholders involved. Even though the author looks at the topic through the lens of a Chinese observer, the chapter illustrates also a deeper conflict between two worlds: on the one hand, the world of individual intellectual property rights regime, underscoring the importance of inventiveness and novelty. On the other hand, there is the world of genetic resources, traditional knowledge, and folklore. This world is built on the idea of community, traces of which might be found in still existing or long gone local and indigenous communities. It is not a coincidence that intellectual property rights have established themselves as one of the stepping stones of the Western civilization´s progress, i.e. their importance is emphasized mainly by the countries of the global North. The countries of the global South, where most of the genetic resources and related traditional knowledge are located, are confronted and need to cope with the Western intellectual property rights regime, which has often the ambition to subject them to its protection. This is not an easy task, due to many reasons. According to one of them, characteristic of traditional knowledge or folklore is their collective nature, while the notion of “collectivity” runs contrary to the idea of individual intellectual property rights. For this reason, countries might be motivated to propose a special kind of protection for them, respecting their collective nature and their embeddedness in indigenous culture. Hence, any kind of attempts to regulate and protect genetic resources, traditional knowledge and folklore should respect and pay due account to indigenous traditions and culture. Such an approach is one of the necessary steps to prevent that intellectual property rights evolve into a form of hidden colonialism, rendering indigenous traditions, values, and culture meaningless.