▨ Muhammad Tizar Adhiyatma*47)
<국문초록>
전통지식 및 이와 관련된 유전자원에 관한 다양한 문제가 인도네시아 또는
그밖의 국가에서 국ⅱ적으로 발생하고 있다. 이러한 문제는 생물다양성협약
(Convention on Biological Diversity : CBD) 당사국ⅲ의 회의와 지적재산권, 유
전자원, 전통지식의 보호에 관한 정부간회의와 같은 국제적 포럼 속에서 다양
한 구성원의 주의를 끌고 있다. 이 논문은 인도네시아에서의 토착민ⅲ의 전통
적 창작으로서 전통지식】 유전자원의 적극적 보호를 보장하기 위한 성문입법
의 급박한 필요성에 촛점을 둘 것이다. 성문입법을 통한 규제는 법규 ⅱ 형벌
적 조항】 함께 법적 확실성을 제고할 수 있는 정보로써 기능할 것이다. 특히
다국적 기업을 포함하여 외국 당사자에 의하여 자행될 수도 있는 유전자원의
생물학적 해적행위(biopiracy) 그(고인도네시아의 전통지식】 관련된 해적행위
로부터 인도네시아국민을 적극적으로 보호할 수 있을 것이다. 이 법은외국당
사자에 의한 인도네시아 유전자원 및 전통지식 등에 대한 착취와 해적행위에
대항하기 위한 지역토착민의 공동의 권(를 제공해 줄 것이며, 나아가 인도네
시아의 지속가능한 경제 및 사회복지를 위한 초석이 될 것이라 생각한다.
◾주제어 : 전통지식, 유전자원, 인도네시아, 적극적 보호, 방어적 보호
* Consultation and Legal Aid Unit of Hasanuddin University
The Urgency of the Legislative Regulatory
Formulation on Traditional Knowledge and
Genetic Resources in Indonesia
-목 차
Intergovernmental Committee on Intellectual Property Right and Genetic Resources,
Traditional Knowledge, and Folklore (hereinafter referred to as WIPO IGC). This
forum is a committee established to negotiate texts of an international law
instrument particularly the one that guarantees protection of genetic resources
cultural expressions and stocktaking session. In this forum, panel of indigenous
people and local community has been established. The panel delivered presentation
with topics covering protection, promotion and preservation of TK, traditional
cultural expression, as well as GRs.2)Issue of TK protection is also discussed in
Conference of The Parties of Convention on Biological Diversity (hereinafter
referred to as COP). COP holds the highest authority among countries parties that
ratified Convention on Biological Diversity (hereinafter referred to as CBD) which
is held once in two years to discuss unresolved problems concerning biological
diversity, set priorities and be committed to work plan, agree on various
international issues in order to reach the goal of CBD which is conservation,
sustainable utilization of biological diversity and profit sharing for the utilization
of GRs. The latest meeting of this conference was held on 4-17 December 2016
WIPO IGC has given recommendation in WIPO/GRTKF/IC/7/5 suggesting that
all participants in the committee implement either national or regional approach
for the protection of TK. Moreover, in the 13th meeting, COP set agenda of reporting
The Ad-hoc Open-ended Inter-sessional Working Group for Article 8(j) and
associated provisions related to CBD in the 9th meeting in Montreal, Canada 4th – 7th November 2015 that has adopted 5 recommendations regarding of voluntary guidance for mechanism development, law or other precise initiatives to ensurethe
[free] prior informed consentor [approval and involvement] of indigenous people
and local communities to access their knowledge, innovation and practice, fair
profit sharing as a result of the use and the application of those knowledge, relevant
innovation and practice for conservation and sustainable utilization of biological
diversity, and for the report and prevention of a deprivation that violates the Law
of TK. Accordingly, Indonesia should have easily formulated national act in order
to prevent Indonesian TK from misappropriation or any form of biopiracy for its
GRs. For example, the case of the utilization of Indonesian GRs associated
with TK has been done by Shiseido Cosmetic Company Japan. This company
proposed a patent for some of efficacy of herbal formula as cosmetic potion
to make anti-agents and hair tonic. They succeeded in getting some patent
rights with register number 10316541 for product from Indonesian plants that
are KayuRapet(ParameriaLaevigata), Kemukus(Pipercubeba), Tempuyang
(SonchusArvensis), Belantas(PlucheaIndica L), Mesoyi(Massoia Aromatic Becc),
Pule (AlstoniaScholaris), Pulowaras(AlyciaReindwartii BI), and Sintok
(Cinnamomumsintoc BI).3) This is possible because the existing regulation, and
even until today, is still very weak to guarantee these TK to be protected properly.
In addition, protection (either in the form of positive protection or defensive
protection) will halt developed countries to accuse developing countries as the
violators of intellectual property right. Like when United States accused developing
countries of various piracy of intellectual property that made them suffer the loss
of royalty as much as $202 million a year. Nevertheless, in terms of GRs associated
with TK, it is in fact developing countries which would have suffered the loss.
United States owes $302 million for agricultural royalty and $5.1 billion for
medication.4) In addition, this protection is also useful to avoid unnecessary lawsuits
from developed countries like in the case of Yellow Bean (Phaseolus Vulgaris)
from Mexico that has been patented by POD_Ners. Plc, Amerika (US Patent No.
5,984,479). This patent right was then used as the basis of lawsuit to Mexico
company. Another case happened in 1991 involving a craftsman from Bali
(Indonesia) who was sued in TheNew York District Court for using Borobudur
motif. Moreover, local people do not know that TK that they have got hereditarily
conveys economical advantages especially TK about medications. Therefore,
government has to provide protection for indigenous people and local communities
and also guarantee the moral right of the ownership of TK associated with GRs
from the practice of misappropriation and biopiracy.
This paper focuses on the urgency of formulating Indonesian national legislation
in order to guarantee the protection of TK and GRs as the form of traditional
creativity belonging to indigenous people. The study in this paper will be supported
with The Black Box Theory5) by David Easton whose scope is limited only to
TK, particularly the one closely related to GRs and will be elaborated by examining
gap perception between developed and developing countries in terms of TK
protection as well as in terms of differences between the concept of public domain
and the concept of communal right. This study is necessary in order to convince
government that protection through the system of intellectual property right is no
longer appropriate so that stronger protection in the form of national legislation
with sui generis model which isactis needed.
4) Vandana Shiva, The Vandana Shiva Reader, The University Press of Kentucky (2014), p. 169 5) Black Box theory will provide clear description that a policy can be well implemented and
Ⅱ. Traditional Knowledge and Genetic Resources
Sometimes international public is mistakenly considered TK as folklore. In fact,
those two terms are substantially different. Michael Blakeney explained that folklore
is discussed more in copyright or copyright plus or, in other words, it includes
in domain which protection is covered in copyright law.6) The definition of TK
is developed by The International Council for Science (ICSU) by developing the
characteristics of TK itself. Here is the definition:
”Traditional knowledge is a cumulative body of knowledge, know-how, practices
and representations maintained and developed by peoples with extended histories
of interaction with the natural environment. These sophisticated sets of
understandings, interpretations and meanings are part and parcel of a cultural
complex that encompasses language, naming and classification system, resource
use practices and ritual, spirituality and worldview.”7)
In addition, CBD defines TK as original knowledge, innovation and practice from
local people. Therefore, based on the definitions aforementioned, TK covers
creative expressions, information, knowhow which particularly has its own
characteristics and can identify social units.
Meanwhile, GRs itself is a common term used in international policies related
to agriculture, environment, intellectual property right, and trade.8) GRs, for the
first time, bring its influence to the food and agriculture organization commission
on plant GRs. In CBD forum itself in 1992, GRs became a hot issue discussed
at that time and was an issue that was thoroughly brought to international stage.9)
6) Michael Blackeney, The Protection of Traditional Knowledge under Intellectual Property Law (2000), EIPR 22(6) 251-261 in Suyud Margono, Hukum Kekayaan Intelektual (HKI): Mencari Konstruksi Hukum Kepemilikan Komunal terhadap Pengetahuan dan Seni Tradisional dalam Sistem Hak Kekayaan Intelektual (HKI) di Indonesia, Pustaka Reka Cipta (2015), p. 180 7) ICSU and UNESCO, Science, Traditional Knowledge and Sustainable Development (ICSU Series
on Science for Sustainable Development No. 4, ICSU, Paris 2002) in Tobias Kiene, The Legal Protection of Traditional Knowledge in The Pharmaceutical Field, Waxmann (2011), p. 25 8) Kent Nnadozie, Robert Lettington, etc, Africa Perspective on Genetic Resources: A Handbook
Article 2 CBD defines GRs as a genetic material that is actual or has potential
coming from plants, including reproductive and vegetative propagation materials
containing heredity functional units.10)
Ⅲ. International Instrument for Traditional
Knowledge and Genetic Resources
TK and GRs have been regulated both in international area, as international
legal instrument, and in Indonesia area. As international legal instrument, both
TK and GRs have been formulated in CBD, Nagoya Protocol, FAO and International Providing Legal Certainty?”, in Sebastian Oberthur and G.Kristin Rosendal (eds.), Global Governance of Genetic Resources: Access and Benefit Sharing after the Nagoya Protocol, Routledge (2014), p. 18. See also Bevis Fedder, Marine Genetic Resources, Access and Benefit Sharing: Legal and Biological Perspective, Routledge (2013), Manuel Ruiz Muller, Genetic Resources as Natural Information: Implication for The Convention on Biological Diversity and Nagoya Protocol,Routledge (2015), Lyle Glowka, A Guide to Designing Legal Frameworks to Determine Access to Genetic Resources, IUCN (1998), p._
1. Convention on Biological Diversity(CBD)
preserve nature, respect, protect and maintain knowledge, innovation and practices
benefit sharing through Standard Material Transfer Agreement(SMTA)in
https://en.wikipedia.org/wiki/International_Treaty_on_Plant_Genetic_Resources_for_Food_and_Agr iculture#cite_note-1, accessed on 6th April 2017
12) Agus Sardjono showed in his book a research conducted by Steven R. King stating that 74% of raw material of pharmacy industry is derived from physic or medicinal plants used by traditional people or local people who mostly live in developing countries. Curtis M. Horton, “Protecting Biodiversity and Cultural Diversity Under Intellectual Property Law: Toward a New International System”, Journal of Environmental Law and Litigation, Vol. 10 (1995), p. 5 in Agus Sardjono’s book, Hak Kekayaan Intelektual dan Pengetahuan Tradisional, PT Alumni (2010),p. 65
13) The mechanism of profit sharing was assigned to the participants of the convention, Article 19 paragraph (2) CBD stated that “Each Contracting Party shall take all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to thе results and benefits arising from biotechnologies based upon GRs provided by those Contracting Parties. Such access shall be on mutually agreed terms.”
of indigenous and local people that reflect life style with traditional characteristic
s.15) This formulation is stated in Article 8(j) and is the main provision of CBD
related to indigenous people and local people. In addition, Article 10(c) of the
convention requires the participants’ countries to protect and encourage the
utilization of natural resources based on the practices of traditional culture.16)This
provision is a particular protection given by each country participant of the
convention to indigenous people and local communities. Moreover, this convention
also demands its participants to initially obtain first information from the party who
provides the natural resources before accessing the natural resources.17)
2. Nagoya Protocol
Nagoya Protocol is protocol under CBD, and as guidelines for the implementation
of CBD itself, CBD is established in order to manage access to genetic resources
and fair profit sharing of its utilization. Therefore, as a formulation of the
implementation of CBD regulation regarding the granting of access and its profit
sharing, this protocol is aimed at giving access and profit sharing for the utilization
of GRs and TK, including the utilization of its derivative products. Another aim
is to prevent the stealing of GRs, or usually called biopiracy. Principally, the intent
and purpose of Nagoya Protocol is to manage: access to GRs and TK associated
with GRs; fair and balanced profit sharing of the utilization of GRs and TK associated
with GRs; and to prevent GRs stealing (biopiracy). The main objects regulated
in Nagoya Protocol are:
15) Article 8(j) CBD states that subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.”
16) Article 10 (c) CBD states that protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements
Fair and balanced profit sharing of utilization of GRsand TK given based on
Mutually Agreed Terms/ MAT.18) Profit sharing can be in the form of monetary
and non monetary;19)
Access to GRs and TK associated with GRs which is conducted through Prior
Informed Concern/PIC involving the owner or the supplier of GRs;20)
Simplification of steps to access for non-commercial researchers and special
consideration in emergent situation in health, environment, and food;21)
Cross-countries Mechanism of global multilateral benefit sharing of GRs and T
K;22)
The authorized institution has to be appointed as National Competent Authority
(NCA). NCA is an institution which authorizes to give written access permit and
also to assign National Focal Point as a liaison of CBD Secretariat.23)
Providing Clearing House as a place of information exchange mechanism and
data basis regarding GRs;24)
Structuring national regulation acts in relation to GRs;25)
Establishment of checkpoint for the purpose of monitoring;26)
Structuring and model of mutually agreed clause contract;27)
Code of ethics, guidelines and the best practice, and/or standard;28) and
Improvement of capacity, technology transfer, and partnership.29)
This protocol gives a country a mandate to make efforts to ensure that TK
associated with GRs owned by indigenous people and local communities is
accessed through prior inform consent that involves associated indigenous people
18) Article 5 paragraph (1) Nagoya Protocol 19) Article 5 paragraph (4) Nagoya Protocol
20) Article 6 paragraph (1) Nagoya Protocol see also Article 7 in the protocol 21) Article 8 paragraph (1) Nagoya Protocol
22) Article 10 Nagoya Protocol 23) Article 13 Nagoya Protocol 24) Article 14 Nagoya Protocol
25) Article 15 and Article 16 Nagoya Protocol 26) Article 17 Nagoya Protocol
27) Article 19 Nagoya Protocol 28) Article 20 Nagoya Protocol
and local communities and mutual agreement that has been established.30) The
implementation of this protocol in national law must take into account adat law
or custom law, a protocol and procedure concerning with TK in relation to GRs
that applies in the society.31)
3. International Treaty on Plant Genetic Resources for Food
and Agriculture
This Treaty is in harmony with CBD. It has similar goal to CBD, however, the
issue exposed in this treaty is focused more on the problems of food and
agriculture. Object of this treaty is in the form of conservation and sustainable
use of GRs plants for food and agriculture as well as “fair and equitable sharing
of benefits” arising from its utilization. Regarding indigenous people, this treaty
states that in order to support the efforts of indigenous people and local
communities, in situ conservation of relatively wild plants and wild plants to
produce food should be promoted. This treaty is similar to CBD. Both do not
specifically refer to indigenous people. This treaty even gives very limited portion
to discuss indigenous people. The main topic is farmers’ rights instead.
Ⅳ. Protection Model for Traditional Knowledge and
Genetic Resources in Indonesia and other Countries
1. Indonesia
TK protection in Indonesia also takes into account the protection of GRs.
Unfortunately, the existing protection is less sufficient to protect TK associated with
GRs. As for example, on the issues on GRs, the transport of wild animals and
plants into and out of Indonesia is managed by ministry of environment and forestry
as an authorized management in Indonesia. Minister of environment and forestry
will give the release of wild plants and animals after getting permission from LIPI
as a scientific authority in Indonesia. Before foreign researchers bring Indonesian
plants and animals, first they must sign a MTA. MTAdepends on the type of GRs.
As for example for agriculture GRs, the MTA must be issued by the ministry of
agriculture. If biological sample is related to health, the MTA must be issued by
the minister of health and must fulfill the requirements of Kepmenkes (Health
ministerial decree) No. 732/Menkes/SK/VII/2009. If the sample is a wild plant
and/or a wild animal, the MTA must consider ministerial decree 447/Kpts-II/2003.
MTA itself is regulated in Peraturan Pemerintah (Government Regulation) No.
41/2006 on MTA.
GRs-basis TK in Indonesia is only protected by giving access permit and
utilization permit and through contract instrument. The utilization of GRs which
is also integrated with TK in Indonesia begins by applying permit to access
information about the resources desired. Access permit is differentiated between
access for common interest such as for educational purpose and access for
commercial interest in the form of a research for products development for an
industry. For information access related to GRs and/or TK for the purpose of
holding the right of intellectual property and commercialization, the next step is
to get utilization permit. To get utilization permit, benefit sharing for the utilization
of GRs and/or TK is required. Utilization permit is given after the applicant accesses
the information about GRs and/or TK. After that, a utilization agreement is made.
This agreement is an integral contract instrument in access and utilization permit
application procedure. This utilization agreement must formulate clauses about
diversion of biological material and any matter arising from the diversion. This
contract instrument is what we call utilization agreement. Utilization agreement
involves at least three parties concerned consisting of user party (researcher or
industry), supplier country (represented by competent national authority) and local
people as the holder of rights of GRs and TK. To make decision, local people
associated with the asset must be involved in order to participate in the negotiation
apply for utilization permit, utilization agreement is required. This agreement is
made between user party and the resources community with the help of an
associated government institution. This utilization agreement must be enclosed in
the application of utilization permit as a document. In utilization agreement,
particularly the one related to access and utilization permit, PIC can include in
the agreement. Application of access permit followed up with registration of
intellectual property or commercialization requires PIC to communicate the interest
of the resources community and supplier country to the interest of the user.
<Flow Chart 1> Flow of the utilization protection of genetic resources and traditional knowledge associated with genetic resources in Indonesia.
TK and GRs in Indonesian legal context is not protected using a proper system
and tends to be prone to biopiracy, however, Indonesian indigenous people has
been recognized in Article 18B paragraph (2) Indonesian Constitution32)and some
other regulations.33)
There some issues which still come up in operational level regarding procedure
and mechanism of obedience to “good scientific practices”. Synergy among
researchers, research institutions, authorized parties and partners (national and
international) does not run well because of the various levels of understandings
32) Article 18B Indonesian Constitution states, “The State recognizes the existence of indigenous people along with their rights and traditional”
and other factors such as rules, institution capacity, and so forth. Manual book
to guide the implementation of profit sharing system can be used as general
platform.
Abundance of GRs owned by Indonesia as well as property of TK is in contrast
to the lack of acts that have capacity to provide proper legal protection. Indonesia
needs to protect them whether by issuing national legislation (positive protection)
or establishing a new institution and/or even immediately setting up a project to
inventory all GRs associated to TK owned by Indonesia (defensive protection).
Protection of TK and TK associated with GRs should be based on protection
system offered in WIPO IGC, TRIPS Agreement and CBD as well as Nagoya
Protocol. Those agreements provide solution and are an ideal integrated protection
to be applied in Indonesia especially in terms of Indonesian local wisdom. As
a member of WTO, Indonesia has harmonized its regulations; one of them is TRIPs
agreement. Adopting intellectual property rights and launching sui generis system
are the best ways to protect TK and TK associated with GRs in Indonesia. It is
necessary to have fair access and fair benefit sharing. The holder of a patent needs
to mention home country where an invention is from (in this case an invention
deriving from plants and associated with TK) and developed. Furthermore,
Indonesia also needs to be concerned with the inventory of GRs associated with
TK, like in India, they have “Traditional Knowledge Digital Library” (hereinafter
referred to as TKDL) or in Korea, they have database system called “Korean
Traditional Knowledge Portal” (hereinafter referred to as KTKP). It is important
to note that strict permit issuance, whether animals and/or plants are allowed to
be brought out of Indonesia, is also necessary, like Brazil’s protection system.
Although Indonesia has had some sectorial regulations for the issuance of permit,
those regulations are still weak considering the hierarchy of Indonesian laws and
regulations.34) Ministerial regulation is on the lower level of the hierarchy, for
34) Drafting procedure of laws and regulations in Indonesia is regulated in Act No. 12 of 2011 on Legislation Drafting Procedure in Article 7 paragraph (1) stating that Types and hierarchy of legislations consisting of :
example Regulation of Minister of Health No. 657/Menkes/per/VIII/2009 on the
shipment and the utilization of clinic specimen, Biological Material and its
information content. Indonesia needs a national regulation in the form of Act that
has strong protection like in India. The regulation must also be based on the
balance of interest, like what Peru and Philippines have. In these countries, the
states recognize the interest of their indigenous people. Therefore, the regulation
must be in the form of legal regulation which applies criminal sanction as for
example acts, provincial ordinance and district or municipal ordinance.35)
2. The Kingdom of Norway
b. Tap MPR (People Consultative Assembly Resolution); c. Acts/ Government Regulation in Lieu of Law; matters of crime provisions contained only in the following:
a. Acts;
b. Provincial Ordinance; or c. Municipal Ordinance.
36) Sami People is indigenous people that populate the northern part of Fenno-Scandinavia and Peninsula city. Sami indigenous people is spread across four countries (with total population reaching around 137,477 people). However, they still share the same identity. Sami
of Norway’s Nature Diversity Act states that this act is aimed at protecting
biological, geological and other diversity and ecological process through
conservation and sustainable utilization. According to this act, environment
provides the basis of human activities, culture, health, and welfare, for the present
and the future, including basis for Sami culture.37) Norway’s Nature Diversity Act
indicates that this act is formulated by taking into account Sami Culture that comes
with the relation of Sami people with their nature. This Act mandates an authorized
institution in Norway to prioritize knowledge based on multiple generations that
experience the utilization and interaction with nature, including the utilization of
Traditional Sami.38) Genetic material obtained from natural environment is
communal resources owned by Norway’s people in general and is managed by
the state. This genetic material will be used optimally for the sake of environment
and human both in national and international context, particularly in taking the
right step for the sharing of the benefit arising from the utilization of genetic
material. This is necessary in order to protect the interest of indigenous people
and local community.39) Based on Norway’s Nature Diversity Act, King can make
regulation about application containing information about the utilization of
knowledge of indigenous or local people. The regulation made by the king should
explain how the interest of the landowner and indigenous people as well as local
community can be properly protected.40) Furthermore, based on this act, any
individual who get genetic material from public collection must hold him/herself
not to claim the intellectual property right or other rights of the material. The
claim of intellectual property right may limit the use of the material, such as its
use as food and in agriculture, either in Norway or abroad.41) The individual can
claim the right only if the claim is modified that in turn will also alter the substance
of the material. If the individual still claims the genetic material, a competent
authority must take legal actions.
3. India
42)India has established Traditional Knowledge Digital Library/TKDL containing 34
million pages that consist of 2.26 million medical formulations in some languages.43)
In 2003, India issued an Act of Biological Diversity aimed at conducting
conservation of biological resources associated with knowledge and facilitating its
access sustainably. Then, through Act of Biological Diversity, Authority of Biological
Diversity is formed. This authority is in charge of approving or refusing applications
proposed by an individual who wishes to have biological resources or associated
knowledge for the need of a research or for the need of commercialization or
for bio-survey and bio-utilization existing in India.44) According to India’s Biological
Diversity Act, no one, including every non-resident Indian or Indian who does
not live in India or Corporation or organization body that is not registered in India
or that has non-Indian capital share or non-Indian management, can transfer the
result of a research concerning biological resources that is in India or that is
obtained from India for monetary purpose without granting permission from Indian
National Biological Diversity Authority, as defined in Section 30 sub-section 2 of
The 1961 Income-Tax Act.45)Biological Diversity Act of India also prohibits anyone
to have intellectual property right inside or outside India without initially granting
permission from Indian National Biological Diversity Authority.46)
TKDL is designed as sources of information for patent office in providing the
information for prior art test. Through TKDL, India presents information about their
42) India recognizes the existence of indigenous people in their Constitution in Section 161 Sub-section (1). This Section requires that minister be in charge of tribe welfare. In addition, Section 131states that custom as one of laws that is recognized by the constitution, in http://lawmin.nic.in/coi/coiason29july08.pdf, accessed on 4th April 2017
43) Indian Traditional Knowledge Protection in www.wipo.int/wipo_magazine/en/2011/03/article_ 0002.html, accessed on 4th April 2017
44) Section 3 sub-section 1 Biological Diversity Act of India. 45) Section 4 Biological Diversity Act of India.
TK and prevents misuse by third party using the GRs and then patenting it. Sui
generislegislation also facilitates patent examiners in patent offices to search for
prior art in medical formulation proposed to be patented in their offices. Therefore,
the system facilitates the examiners in determining whether the applicants who
propose patent application for an invention that is considered new or that is in
the form of “discovery”.47)
4. Brazil
48)Brazil is one of countries that have focused on biological diversity since 1933.
It can be seen from the fact that there are many decrees and acts concerning
biological diversity applied. After becoming the member of CBD, Brazil then gives
a very serious attention for the existing issues.49) Responding to CBD, Brazil issued
MedidaProvisoria 2186-16/2001 (hereinafter referred to as M.P. 2186). One of its
provisions claims that TK is supposed to be protected by this act in order to avoid
illegal use, exploitation and other dangerous or unauthorized actions. M.P. 2186
recognizes the rights of indigenous people and local community to decide the
review of the utilization of their TK as GRs.50) In addition, M.P. 2186 emphasized
that indigenous people and local community who create, develop, hold or preserve
TK associated with GRs is guaranteed a right to be recognized as the source of
all TK accesses in all publication, utilization, exploitation and spread, and prevents
third party who is not authorized to utilize, test, research or use commercially
their TK or spread, transmit or forward the data or information of the TK. They
47) There are some views regarding the granting of patent for biopiracy and bioprospecting invention. The first view considers that any invention, including things associated to GRs and TK, can always be patented as long as it fulfill all the requirements that are general standard stated in TRIPS Agreement that is novel, inventive and useful. The second view sees basic argument in novelty requirement for the invention associated with GRs or TK cannot be patented because the novelty requirement is not fulfilled.
48) Brazil Federal Constitution in Article 231 states that protection of indigenous people as a legal entity that can fight for their rights and interests in court.
also receive benefit of economy utilization by third party directly or indirectly for
they who hold the right.51) Article 31 M.P. 2186 also emphasizes that the granting
of industrial property right for process of product that is from or is derived from
GRs needs to be conditioned in this law. For those who apply for intellectual
property right, whether a person or an institution, must inform the source of the
GRs and GRs associated with TK as it is supposed to. Brazil also has 3945/2001
Decree that is meant to formulate laws and regulations related to the establishment
of Genetic Resources Board of Management/ Conselho de
GestaodoPatrimonroGenetico(hereinafter referred to as CGEN), that has been
mentioned in Article 10 M.P. 2186. M.P 2186 functions to create and maintain
database of TK that is relevant for conservation of biological diversity as well as
to establish procedure and approve the process for genetic access agreement. The
issuance of regulation and policy of intellectual property in Brazil, such as sui
generis, is necessary because Policy of National Biological Diversity states requires
to build sui generis legal system for the protection of collective rights of intellectual
property associated with TK and biological diversity. The entity that has authority
for the Policy of National Biological Diversity is National Biological Diversity
Commission. There is also 5092/2004 Decree that is meant for issues on
conservation priorities, sustainable utilization and fair benefit sharing of biological
diversity.52)
Based on the discussion on those three countries aforementioned, positive
protection system that is given by Norway for Sami indigenous people in their
country, particularly for the protection of culture and also GRs, can be a good
reference for Indonesia. Moreover, positive and defensive protection system in India
and in Brazil can be a very important review for Indonesia and also other countries
which have similar problems in order to save and prevent the misuse and piracy
of their GRs and TK by foreign parties.
51) Article 9 M.P. 2186
Ⅴ. Sui Generis for The Protection of Traditional
Knowledge associated with Genetic Resources
in Indonesia
As the option that is considered to protect plant varieties and TK and as an
alternative model apart from the implementation of intellectual property right
regime, sui generis in TRIPS Agreement has been allowed to be applied in national
law of countries WTO members, particularly the one related to plants and animals
(Article 27.3 of TRIPS Agreement). Some countries have enacted sui generis system
to protect their GRs against foreign parties, particularly GRs associated with TK
like in India, Brazil, and Norway. Suigeneris is a form that is used to identify
a given legal classification independently from other classifications. This form will
distinguish between TK and GRs protection and intellectual property right regime.
Sui generis has its own terminology that means in a class by itself or something
is unique. TK and TK associated with GRs are unique aspect of the existing
intellectual property. One of uniqueness of TK is its communal ownership. This
is different from individual ownership of intellectual right. Therefore, how sui
generis, for the protection of TK and TK associated with GRs in Indonesia, can
be applied using Black Box Theory by David Easton will be explained.
1. Perception Gap between Developed Countries and
Developing Countries for The Protection of Traditional
Knowledge
Issues of TK protection and TK associated with GRs emerge different perception
between developed countries and developing countries. Developed countries
basically need TK protection based on the existing system which is through
protection mechanism of intellectual property right. On the contrary, developing
countries wish that TK needs to be protected using a mechanism which better
(1) Developed Countries Perception
United States argues that TK and TK associated with GRs need to be protected
by the existing intellectual property right protection system. According to United
States, protection system of intellectual property right can be used or adapted to
solve certain issues concerning TK, including economy and non-economy. To
protect TK, exception that applies under the existing system will also apply for
TK associated with GRs. For instance, certain expressions of TK will fulfill the
requirement of copyright protection. Exception and limitation that are provided
in Copyright Act will apply. Some provisions in intellectual property right law can
be adapted to address specific issues and concern of indigenous people and local
community, even according to United States, principles and doctrines of intellectual
property may also be integrated using indigenous right approach.53)
European community has similar response to that of United States saying that
branches of intellectual property right law can have a role in either direct or indirect
protection without reducing existing protection under intellectual property right.
TK associated with GRs has to be protected against any forms of misappropriation
that consists of acquisition, stealing or utilization of TK associated with GRs in
an unfair or illegal ways. European community has preferences for non-binding
legal outcome, which is sui generis, and other non-binding preferences. European
community stresses that TK protection must be consistent with existing protection
system of intellectual property right and other international agreements. Thus, it
can be said that European community supports the establishment of sui generis
and other non-binding preferences, yet final decision of TK protection must be
given to individual contracting party. European community also stresses that TK
is creation under public domain so that European community questions the
definition of TK and the goal that is expected to be achieved. Therefore, European
community suggests that public domain concept also need to be well discussed.54)
Japan also states their concern of the expansion of intellectual property right
protection for TK. Japan believes that there are no clear or justified reasons why
TK fulfills the requirement of intellectual property right. According to Japan,
GRs-based TK can meet the requirement to be protected by patent right if the
protection gives incentive for the next creation that will lead to industrial
development and if TK is guaranteed by proper intellectual property right
protection. If TK is protected by intellectual property right protection, it must be
in the context of its protection, and the validation is only for limited period of
time in order to keep the balance between the holder of the right and public
interest. Japan sees that If TK is protected under intellectual property right without
term of time, there will only be certain generation that is able to feel the benefit
of TK that has long been inherited. On the other side, Japan also considers that
it is improper to grant lifetime intellectual property right because it will be unfair
to limit the scope of public domain.
(2) Developing Countries Perception
Another perception arises from developing countries. Brazil, for example, argues
that providing protection for TK must be implemented using defensive protection,
positive protection, PIC and Benefit Sharing. The protection must also be done
through international dimension. Brazil's defensive protection is aimed at restricting
the misuse of TK, particularly to prevent the granting of intellectual property right
without authority from TK holder. For example, through disclosure requirement
in patent system, when an applicant proposes patent application, the applicant
must inform the source of the invention in the application, especially if the
invention is associated with GRs. Furthermore, applicant must have proof of
obedience to PIC and Benefit Sharing. Besides defensive protection, according to
Brazil, positive protection will also protect TK through sui generis system. PIC
and Benefit Sharing are meant to ensure that people can have and use their right
of TK with PIC provision as requirement for third party that wishes to utilizeGRs
and/or associated with TK and also to ensure fair and proper Benefit Sharing.
to facilitate the enforcement of national acts on TK protection are available.55)
TK protection through intellectual protection right protection is seen by South
Africa improper because there is limitation in the right to privately monopoly. South
Africa argues that TK as part of people cultural heritage inherited from generation
to generation should not be privatized or exploited communally for individual
interest. Therefore, South Africa states that the first TK beneficiary must be
community that is directly connected to the knowledge accessed and protected.56)
South Africa also supports idea stating that TK should be protected without time
term limitation. It is obvious that TK protection is to maintain the sustainability
and developing of TK. It requires protection for social, economic, cultural, and
spiritual context of TK. Those are things that cannot be reached within limited
time period. South Africa also establishes an instrument that can protect holistically,
inseparably, collectively and more widely than merely the protection of economy
benefit.57)
Another argument comes from another developing country that is Tunisia.
Tunisia argues that TK cannot be protected only by single legal system through
intellectual property right protection because the ownership is communal and is
considered vague. Intellectual property regime itself does not recognize collective
right and knowledge that is inherited from generation to generation. Tunisia argues
that protection regime that does not prevent sharing and transmission model of
TK is needed.58) For Tunisia, TK protection on national level is essential.59)
2. Public Domain and Communal Right
Public domain in intellectual property right generally consists of intangible
materials that is no longer intellectual property and is available to be freely
exploited by anyone.60) WIPO IGC forum has considered that TK and/or GRs based
TK may be in public domain.61) In general, intellectual property is aimed at
preventing a creation and innovation fall to public domain or certain period of
time. There are some views that refuse TK protection through intellectual property.
For instance, views of some WIPO participants stating that in order to be in public
domain, indigenous people and their creation or innovation should first be
protected as intellectual property. Therefore, as a creation that is intangible cultural
things and is regulated in indigenous law instead of intellectual property law, it
must be considered apart from intellectual property right protection concept in
public domain.
Regarding TK protection, public domain applies with exception for protection
provided by them although TK is similar to public domain material. For example,
sharing within community is common thing. However, it is different case with
TK that has social limitation because some of those creations are considered secret,
sacred and is part of inseparable cultural heritage. If TK is stated as public domain,
it will violate secret and sacred characteristic of many intangible elements that
belong to living heritage and will stress the damage side and deprivation of cultural
values. On the other side, there is argument saying that character of TK public
domain is valuable because it allows regeneration and revitalization for indigenous
people and local community. If TK exclusive right of private ownership is
established, no one in indigenous peoples or other community will be able to
create or innovate based on the intangible cultural heritage.
3. Analysis
Protection through sui generis system for TK associated with GRs is no longer
merely an issue in considering whether this system model is necessary or not.
However, what is necessary to be realized soon is adding another protection
mechanism to assist this protection system. The establishment of sui generis for
60) WIPO/GRTKF/IC/17/inf/8 Document, p. 1
TK protection is not a big deal, however, biological diversity and culture that are
the strength of Indonesia compared to other countries will become future problem
if this strength is not immediately protected by the state. Article 27 section (3)
TRIPS Agreement has allowed its member countries (in this case, the ones that
are the members of WTO) to provide national protection either through patent
system protection or sui generis protection. Through the concept under CBD,
referring to a country sovereignty concept, PIC, and various benefit in a fair and
equal way, the establishment of legal regulation of TK protection associated with
GRs is legitimate right of Indonesia. CBD through its provisions requires to respect,
to protect and to preserve knowledge, innovations and practices of indigenous
people and local community that reflect traditional life style. Knowledge of
indigenous and local community in some parts of Indonesia is simple innovations
and practices that are parts of traditional custom ritual so that it is necessary to
be respected by both other countries and their own country. Protection of TK
associated with GRs is protection that must also create condition that is necessary
for harmony between present utilization and conservation of biological diversity
as well as sustainable utilization of its components. Protection meant here is legal
protection, as stated by SatjiptoRaharjdo that legal protection provides protection
of human right that is violated by another person, and it is given to the people
so that they can have rights given by the law.62) Protection of TK and TK associated
with GRs is not only efforts to protect cultural heritage, but also efforts to protect
indigenous people under Negara KesatuanRepublikIndonesia/ the Republic of
Indonesia (hereinafter referred to as NKRI). Genetic resources, traditional
knowledge, and folklore (hereinafter referred to as GRTKF) are national assets that
are associated with national defense. It means that the protection of GRTKF is
protection of Indonesian national defense. This is where David Easton internal
environment is. Demand for protection of cultural heritage as national asset will
support Indonesian national defense.
The existence of GRTKF is intellectual creativity that is influenced by ideas,
values, norms or symbols that is believed for the purpose of security, happiness
and well-being of people community concerned. The prominent value is its
communal and spiritual value. This value generates sharing behavior and
non-monopoly behavior in Indonesian people. However, nowadays, TK associated
with GRs has attracted foreign researchers and multinational companies so that
government needs to give it serious concern.
External environment of David Easton’s thought is one of thoughts that demand
the establishment of legal protection for GRs based TK. This external environment
is an inevitable relation for Indonesia actualization in International forum. Not only
in Indonesia, international people also wish for the protection of anything related
to GRTKF particularly for them who live in developing countries. Developed
countries demand that the protection of GRTKF be below intellectual property
protection regime, meanwhile, developing countries insist for a different model
which is through sui generis system.
Different perspective and characteristics between developed countries as
countries which utilize TK and TK associated with GRs and developing countries
as the owners of TK. Developed countries consider GRs-based TK as common
heritage of mankind, as a creation of The one and only God thus it can be utilized
for all. Meanwhile, TK has belonged to public domain. Its utilization does not
need utilization permit, even its innovation is considered to be useful for the
advances of the society, contrary to how developing countries see it. Developing
countries assume that TK is people’s traditional works whose protection is necessary
because not only does it contain economical values but also spiritual values.
Condition of the internal and external environment is guideline factors and also
a support functioning as input sources to be processed. These factors can be issues
to be concerned and considered by members of people representative in political
process in DewanPerwakilan Rakyat or People's Representative Council (hereinafter
formulate legislations, in this case the formulation of GRTKF protection act. Thus,
the balance expected during the process of formulation of acts is the balance
between the interest of local people, indigenous people, business entities and
global interest through sui generis system that is different from intellectual property
protection regime which is individual. Legal advantages should not be only felt
and used by multinational companies, but also by indigenous people and local
community that have long been noticed and utilized the efficacy of natural resources
existing around their surroundings. Those people also have right to obtain their
happiness through those legal advantages. This happiness is emphasized by
Jonathan Stuart Mill as the only basis of morality. They never hope for anything
expect for their happiness. Therefore, law should give the right of TK and TK
associated with GRs to indigenous people or local community because it is their
need to reach their happiness.
<Flow Chart 2 > Scheme of Political Flow of Protection Policy of Traditional Knowledge and Associated with Genetic Resources
Source : Adaptation of David Easton’s Political System Flow Model
With this political system, it is expected that the discussion of legislation draft
formulation must balance all the interests so that the legislation can give justice
to all parties and can provide protection for individual right as the creativity
innovator. The protection can be implemented by giving serious concern for the
creativity. This needs to be done in accordance to local wisdom of the local people
and indigenous people to see whether the granting of intellectual property right
obtained from local people and indigenous people will violate communal
ownership right of those people or the dignity of indigenous people, which conveys
spiritual values and creativity. Therefore, protection of communal right must always
be attention in the act or legislation. This needs to be conductedbecause the
formulation of this act, although it is concerned with individual ownership, is not
as exclusive as the ownership of intellectual right. This is the value Pancasila (the
Five Principles) 63) that must be highlighted in the acts for protection of TK and
TK associated with GRs. It means that the protection is implemented through
individual ownership for the sake of social interest. In addition, it must also
recognize communal right of indigenous people for their traditional works.
Ⅵ. Conclusion
The protection of Indonesian traditional knowledge and associated with genetic
resources by implementing positive protection and defensive protection is necessary
to be carried out immediately. The protectionis needed because an Act as written
rule as well as information that isconsidered having legal certainty along with all
its criminal provision is tools of defense for Indonesia to protect its genetic resources
from any biological piracy by foreign parties including their multinational
companies. Expecting intellectual property rights regime to protect all genetic
resources is impossible without government involvement in the associated country
in forming its defensive protection, considering the individualistic characteristic of
intellectual property right and protection that is timed. Furthermore, these
protections will also guarantee communal right of local people for TK and TK
associated with GRs to be protected against exploitation and piracy by foreign
parties, and will give sustainable economic and social benefit as well. Just as some
countries that have taken defensive protection for their traditional knowledge of
indigenous people and local community associated with genetic resources,
Indonesia and the countries having the same issue should immediately form a portal
that can be accessed online as a documentation as well as an inventory media
for traditional knowledge associated with genetic resources.
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[Abstract]
The Urgency of the Legislative Regulatory Formulation on Traditional
Knowledge and Genetic Resources in Indonesia
Muhammad Tizar Adhiyatma
Various issues regarding traditional knowledge and associated with genetic resources have arisen in domestic area either in Indonesia or other countries. These issues have drawn attention of many elements in international forums such as WIPO Intergovernmental Committee on Intellectual Property Right and Genetic Resources, Traditional Knowledge, and Folklore and conference of the Parties of CBD. Therefore, this paper will focus on the urgency of legislative regulatory formulation in order to guarantee positive protection of traditional knowledge and genetic resources as traditional creativity of indigenous people in Indonesia. Act, as written regulation, is considered as information that has legal certainty with all its crime provision. This act ispositive protection of Indonesian people against any forms of biopiracy of genetic resources and anything related to Indonesian traditional knowledge that may be committed by foreign parties, in this case including their multinational companies. This act will guarantee communal rights of local people for traditional knowledge and anything associated with genetic resources against exploitation and piracy by foreign parties. The act will also provide both sustainable economy and social benefits.
