Dewi Sulistianingsi1
Faculty of Law, Semarang State University [email protected]
Abstract
Indonesia and Brazil are developing countries that have rich biodiversities. In the richness of their biodiversities, there are varieties of plants that can be used as medicines. Those medicines are processed traditionally and become traditional remedies that are used by their natives. The traditional medications are made by applying the natives’ knowledge for generations. The traditional knowledge is used and developed by the natives and is considered as cultural heritages that are employed from generations to generations. The traditional knowledge in medications needs to be protected because of its huge economical potentials. In addition, there are also biopiracy practices done by developed countries and transnational companies. Biopiracy has happened in the field of traditional knowledge of medications, including in patent regimes. The form of protection of the traditional knowledge of medicines can be the same or even different among nations, including between Indonesia and Brazil. The basic assumption of this paper is to know the comparisons of the protection of traditional knowledge on traditional medicines between Indonesia and Brazil.
Keywords: Legal Protection, Traditional Knowledge, Patent Regimes, Indonesia, Brazil.
INTRODuCTION
Indonesia is a country with rich biodiversities that can be developed as traditional medications. Traditional medications are made from ingredients comes from plants, animals, minerals, galenic, or the mixtures of those ingredients, which are used for generations as medicines based on the experiences. The phenomena of traditional medications do not only exist in Indonesia, but also in the majority of developing countries, including Brazil. Brazil (the Federal Republic of Brazil) is the biggest country in South and Latin America. Brazil is the five biggest geographical area and population in the world. It has the Amazon rainforest, which has the richest biodiversities in the world.
Not only Indonesia and Brazil have great potentials of biodiversities, but also traditional knowledge of plants that can be used as traditional medicines. Traditional medications have,
The traditional knowledge is known by the societies for generations. From the perspective of WIPO, traditional knowledge has a broad definition, including indigenous knowledge and folklore. The traditional knowledge definition, as said in CBD, can be categorized into two kinds: first, the traditional knowledge related to biodiversities and second, traditional knowledge related to arts or folklore.
As a country with rich biodiversities and traditional knowledge, Indonesia has many kinds of traditional medicines. This condition is similar to Brazil that also has diverse medical plants that can be used as research subjects for pharmacy companies. This condition is ideal for every country, because it is interesting to investigate and develop the research on medical plants to finally create modern medicines. The use of traditional knowledge of the local people to make traditional medicines as a foundation of research and development (R&D) purposes without the permission of the local people where the traditional knowledge from is called biopiracy.
One somewhat recent case of biopiracy existing in Brazil centers on the Cupuaçu fruit, which belongs in a family similar to cocoa. This fruit has become the source of an intellectual property dispute between Brazil, Japan, and the European Union. Two challenges are being made to existing patents, discovered the existence of several worldwide patent applications on cupuaçu oils and chocolate. It also found that the name of the fruit had been registered as a trademark in the EU, US and Japan by Japan’s Asahi Foods and its allied US companies, Cupuacu International3.
Apart from Brazil, India and Indonesia are also rich of medical plants and cannot avoid biopiracy.
In the Congres of Indigenous People of Indonesia in Jakarta in 1999, the biopiracy issue of Dayak Benuaq tribe was raised by a representative of an NGO. The tribe had a traditional medication that used a certain kind of plant to cure cancer. However, there were a group of foreigners entered their territory and took a sample of the plant. Apparently, the sample was brought back to their country and further be developed into a certain medical product4.
Another example was the case of curcuma xanthorrizha Roxb patent by LG (South Korea).
South Korea developed curcuma xanthorrizha Roxb as an ingredient of toothpaste, anti-dandruff shampoo, and anti-aging cream. The findings on the commercial advantages of curcuma xanthorrizha Roxb were the research findings of a researcher from Bandung, Indonesia, named yaya Kurayadi, who worked as a research professor in yonsei University, South Korea5.
Those cases show how important the government’s and communities’ attention toward the traditional knowledge system and technology in Indonesia. Traditional knowledge becomes a collective possession and there has not been any appropriate protection of such an intellectual property since there are many Indonesian traditional knowledge that has been patented by foreign countries. Therefore, Indonesia realizes to keep protecting it6. Traditional knowledge in Indonesia is an intellectual property that should be protected.
3 Sam Himes, Biopiracy and Brazil: Does Biopiracy Encourage Isolationism. https://hnrs353.wordpress.com/
politics-and-social-aspects-of-the-green-revolution/biopiracy-and-brazil-does-biopiracy-encourage-isolationism/
4 Sulaeman Kamil and Nugroho Aji, Hak Kekayaan Intelektual Pengetahuan tradisional dan Keanekaragaman Hayati, in Edi Sedyawati (peny.), Warisan Budaya tak benda (Masalahnya Kini di Indonesia), (Depok : Pusat Penelitian Kemasyarakatan dan Budaya Lembaga Penelitian UI, 2003), page 10.
5 Abhisam, DM, dkk, Membunuh Indonesia (Konspirasi Global Penghancuran Kretek), page 20
6 See Endang Purwaningsih, Perkembangan Hukum Intellectual Property Rights, Kajian Hukum terhadap Hak atas Kekayaan Intelektual dan Kajian Komparatif Hukum Paten, (Bogor : Ghalia Indonesia, 2005), page 245.
Protection toward Traditional Knowledge in Brazil and Indonesia
Knowledge about traditional medicines is parts of intellectual creativities that must be protected from biopiracy. Many biopiracy on traditional knowledge resources of traditional medications done by developed countries often based on patent systems7. Traditional knowledge has huge economic potentials so that efforts are done to protect from other parties taking the advantages. Generally, traditional knowledge is used by big companies to develop products. They take traditional products, along with the traditional knowledge and do research and development activities. The results of those activities are product developments with new packages, which they call as new products, such as in modern medications. The new medicines are requested to be registered in patents and are claimed to be their properties and eliminating the origin of the products. Actually, patents cannot be given to such multinational companies if the prior existence (prior art) of the products can be proven.
As a country with the riches biodiversity in the world, Bazil has issued many decisions and regulations on access on the biodiversities since 1993. Brazil has developed stronger attention toward traditional knowledge trough legal instruments after it joined CBD convention.
Brazilian legislators tried to create legal instrument related to traditional knowledge. It was not an easy job because the access, protection, usage and impact, as well as sharing benefit toward traditional knowledge were not a simple thing. The legal instrument ought to give guarantee to the local people to keep and preserve their traditional knowledge. In addition, the instrument should also be able to give rights for the local communities to: (1) own access and show the origin of the traditional knowledge in every related publication, use the traditional knowledge, and exploit it; (2) prevent the third parties to do researched on the traditional knowledge, use it, and utilized the genetic resources related to it; (3) prevent the third parties to publish information concerning the traditional knowledge without the permission of the knowledge’s owners (the local people); and (4) accept royalties, directly and indirectly, of the exploitation of traditional knowledge commercially.
Brazil also has a special concern toward biodiversities, which can be seen in the Article 255 of Brazilian constitutions. The constitution said that everyone has the right of having a balance ecological environment, which is an asset for public usage that is important to get a healthy life quality. Both the government and the community have the obligation to defend and preserve it for the current and future generations. As further stated in the Paragraph (1) in Article 225 of the Brazilian Constitution, the government has several obligations to ensure the effectiveness of the right, including to: (i) preserve and return the important ecological process and give medication to
of life, and the environment; (vi) promote environment education in all educational levels and community awareness toward the importance of environment protection; (vii) protect the flora and fauna by creating prohibitions based on the law from practices that risk their ecological functions, cause species extinctions or animal cruelty.
In the article 225, Paragraph (2) it is stated that those who exploit mineral resources must restore the damage environment, based on the technical solutions requested by the authorized public institutions, as determined by the law. Further in the Paragraph (3), it is regulated about the procedures and activities that are considered dangerous for the environment. Those who violate the law, both individuals and legal entities, should be punished by criminal laws and be given administrative sanctions, without decreasing the obligation to recover the environmental damages they have caused. Brazilian Amazon rainforest, Atlantic forest, Serra do Mar, Pantanal Mato- Grossense, and coastal zones are parts of national heritages, which have to be used, as regulated by law, in the condition that guaranty environmental sustainability, including the use of mineral resources (Article 225, Paragraph (4)). Empty lands or lands confiscated by the country through discriminative actions needed to protect the natural ecosystem cannot be revoked (Article 225, Paragraph (5)). Power plants operated by using nuclear reactors must have their location defined in the federal law, and may not otherwise be installed (Article 255, Paragraph (6)).
Brazil is one of the countries that has created a special legal system (sui generis) for the protection of traditional knowledge related to biodiversities, through a special Act known as Provisional Measures Number 2,186-16, of 23 August 2001, which aims to regulate the access to genetic heritages and traditional knowledge.
The protection of traditional knowledge is especially facilitated through access contracts that enable the third party to obtain special authorization to get genetic heritages for the purposes of scientific researches, bioprospecting, and other related technology developments. Therefore, the advantages obtained from the economic exploitation of a product or a process developed from the related traditional knowledge must be distributed fairly and equitably to all parties. In addition, Article 31 of the Brazilian Law states that all applications for patent protections from interventions of genetic resources and/or traditional knowledge must reveal the origins of the materials and traditional resources. The law particularly states that the access toward traditional knowledge must be authorized by the Brazilian Council for Management of Genetic Heritages, after the owners of the traditional heritage give their permission beforehand. It means that there is no contract between the users and providers without authorization of the Management Council. The law has taken all the possible steps to avoid the third party use the customs and traditional knowledge of the local people illegally. This is related to any activity involving exploitations, transmissions, disclosures, or retransmission of data/information of traditional knowledge. The law also gives sanctions, including fines, confiscations of illegal ingredients and products come from unlawful materials, the prohibition of distributions, cancelation of product patents or patent registrations, the loss of government incentives, etc.
Overall, the main purpose of the Brazilian Provisional Measures is to regulate the access toward genetic heritages and traditional knowledge. One of the weaknesses of the law is that the protections are limited to the knowledge related to genetic resources and genetic heritages in Brazil. The scope of the law must be broadened to include the situation when traditional knowledge is delivered through traditional cultural expression and folktales.
Other limitation is that the Provisional Measures that focuses on the protections against the misuse of traditional knowledge does not provide mechanisms for the conservations and promotions of traditional knowledge. It is said that every sui generis regime should have appropriate incentives to recover and protect the traditional knowledge, as well as to promote wider usage of the knowledge and innovations of the traditional system and encourage research activities, innovations and development of the traditional knowledge. It is also useful to add some verses to regulate the access and benefit sharing systems, especially related to the conservation and development of traditional knowledge, research developments, and sustainable use of biodiversities. In addition, although the law in Brazil discusses the indigenous rights, it does not give a specific definition of “Indigenous community” or even the definition of “community.” The definition can be broadened for these elements. Moreover, like what have been discussed earlier, Article 31 of the Law states that every application of the patent protection of the inventions based on genetic resources and/or traditional knowledge must include the origin of the related materials and traditional knowledge. However, in the Article 8 Paragraph (4) of the Law which emphasizes that the protection gives under the law cannot reduce or limit the rights concerning the standard provisions of the intellectual properties.
The statement is contradictory since it implies that the patent law does not require stating the origin of the product. Those issues need to be addressed effectively.
The point is, sui generis refers to the rights, which is designed to become unique for certain purposes that is not covered by the existing legal system. Some argue that the sui generis right is an alternative model made outside the existing intellectual property regime. It means that the protections given by sui generis law have been considered as an alternative for the existing intellectual property regime. If it happens, the national or regional sui generis systems that protect the traditional knowledge should interact with the existing intellectual property regime. However, in reality, the question is that whether the sui generis law should follow that of the intellectual property regime or it should be given flexibility to give broader protections based on special needs, cultures, or political conditions of each country.
Otherwise, another question is that whether some perimeters in the special protection system need some modifications. The issues have always been debated and have caused confusions to some countries.
For example, like what have been discussed earlier, Article 31 of the Brazilian Law states that all applications for patent protections from interventions of genetic resources and/or traditional knowledge must reveal the origins of the materials and traditional resources. However, Article 8 (4) of the same law emphasizes that the protection gives under the law cannot reduce or limit the rights concerning the intellectual properties. The two articles are contradictory because the standard patent law does not require revealing the origin of the product. The issues must be addressed effectively. Legal and practical
element of novelty and inventive step elements are difficult to obtain for TK-based herbal products because of the difficulty in conducting research and development for traditional medicine.
Conclusion
In Indonesia, the protection of traditional knowledge in the patent regimes can be done by amending the Patent Law in Indonesia by doing exception of invention that can be patented (including the traditional knowledge into the prior art by using the documentation of traditional knowledge). Indonesia can learn from Brazil that has a legal protection toward traditional knowledge in sui generis.
Technically, the protection toward traditional knowledge can be done by: (1) Making inventories/documentation/data base of traditional knowledge; (2) Revising the Patent Law; (3) The traditional knowledge can be protected by the law in sui generis or independently outside the Intellectual Property Rights; and (4) The mechanism of appropriate benefit sharing between the local community and the outside parties.
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