Protection of Indigenous, Ancient, and Traditional Knowledge

I.

Background

The era of globalization is facing serious problem to the international legal community to set new international legal standard for solve the problem of intellectual property protection. Protection of indigenous, ancient, and traditional knowledge communities is considered to be one of the most problematical issues. They are vulnerable for free exploitation without showing any respect to the origin. The developments of bioresearch, obviously demonstrate the usefulness of traditional knowledge for the development of new product of commercial importance such as cosmetic, medicine, etc. The necessity to protect the traditional knowledge is captured by the attention of the international community to protect traditional knowledge. Literally, Traditional Knowledge (TK) differs from Indigenous Knowledge in which it does not include contemporary Indigenous knowledge and knowledge developed from a combination of traditional and contemporary knowledge (Henderson: 2002). The two terms are, however, sometimes used interchangeably. Traditional Knowledge is the term used in most national discourses and virtually all the international forums. Traditional Knowledge (TK), used in early international discussions in the Convention on Biological Diversity, is techniques spiritual and religious institutions and their symbols; and various other forms of Indigenous knowledge. The term encompasses a broad range of Indigenous knowledge including ancient stories, songs and dances; traditional architecture and agricultural; biodiversity-related and medicinal, herbal and plant knowledge; ancient motifs, crests and other artistic designs; various artistic mediums, styles, techniques; spiritual and religious institutions and their symbols; and various other forms of Indigenous knowledge.1 In the other hand, the UNESCO (United Nations Educational, Scientific and Cultural Organization) defines traditional knowledge as the local knowledge that is unique to a given culture or society; It is the basis for local-level decision-

making in agriculture, health care, food preparation, education, natural resource management, and a host of other activities in rural communities.2 It is necessary to protect this traditional knowledge since it is under serious risk today from the legal piracy. The main problem is that academic knowledge created in laboratories is protected by strong law and legal patent; however, traditional knowledge as a result of heritage system is not protected by strong law and legal system.

II.

Indonesias Case: Batik

Batik, as Indonesias heritage, is a cloth that traditionally uses a manual waxresist dyeing technique and considering as a high level level arts. The patterns that exist in batik have a philosophy that is very closely with the Indonesian culture. Batik is a manifestation of national pride, an identity of that has Batik as been inherited since existence Indonesias identity is

hundred years ago. Unfortunately, the

vulnerable because the batik has also claimed by other nations to be registered as their heritage.

The copyright on batik is protected by the state as provided in copyright acts No. 19 year 2002, namely: "The state holds the copyright on the folklore and culture of the people; such as stories, tales, fairy tale, legend, chronicle, songs, handicrafts, choreography, dance, calligraphy, and other artwork. However, the law has not been encompassed protection of traditional cultural expressions including the traditional batiks pattern.

Furthermore, the control of intellectual property rights in the international community, written in the Trade Related Aspects of Intellectual Property Rights (TRIPS), has not accommodated the traditional knowledge. This phenomenon indicates that the legal protection of traditional knowledge in international community is still weak. The weakness of copyrights law, both in Indonesia and the international community in protecting traditional knowledge led to the dispute between Indonesia and Malaysia. Each country claims that batik is their cultural heritage. Fortunately, this case has been

won by Indonesia at international level and UNESCO endorses batik as Indonesias cultural heritage.

III.

National and International Initiatives to protect Indigenous, Ancient, and Traditional Knowledge

There are ten models that exist so far in the world as they (namely, African Union, Brazil, China, Costa Rica, India, Peru, Philippines, Portugal, Thailand, and United States) have undertaken the initiative to introduce specific laws to protect and regulate traditional knowledge within their borders. The ten models will be outlined under the following categories which are categories used by WIPO in analyzing on Sui Generis regimes, and commonly used by other UN bodies. 3 Most of ten models represent the first Sui Generis models for TK protection in the world. Most of these legislations and laws are relatively recent and many of the countries are just beginning to analyze the affects of their practical applications. Weather these mechanisms function effectively within the countries and Indigenous communities is also a matter for further analysis over time. However, these countries should be commended by Indigenous peoples and the international community for their progressive and groundbreaking work on the issues. The main international forums that have emerged as impacting and dealing directly with issues of TK are the CBD and WIPO. They are intended to set standards for Indigenous rights. International standards represent inclusive processes, which Indigenous people voice and vision has been heard rather than denied.

IV.

Principles and Solution in TK regulation

Besides copyright, patents and trademarks have been explored with regard to their

potential to protect TK, including: trade secrets and industrial designs. However, this paper does not go into those far. As an emerging models and strategies, I would like to give my opinions for this position paper.

First, Indigenous Nations must have an ownership over their traditional knowledge, and protected by international copyright system. In the development of international copyright system, royalty system could also be considered to fund the development of traditional knowledge. Then, the protection for traditional knowledge should be based Customary Law since it regulate indigenous societies and for many Indigenous peoples, their custodial relationship with their knowledge has Customary Law as its basis. In addition, some of traditional knowledge are prohibited in the public domain (listed in Customary Law) and should remain protected.

Furthermore, learning from Batik Case, Indigenous artists must have international license which grants them permission to adapt their particular traditional knowledge in their work. Non-Indigenous people and Indigenous peoples from other Indigenous nations do not allow adapting that traditional knowledge in their work unless they have permission to do it. When the permission is granted, they must list the information where it comes from. This idea based on Access and Benefit-Sharing (ABS), The principle that when Traditional Knowledge is accessed, there should be a benefit-sharing agreement between the user and the Indigenous peoples who originated the Traditional Knowledge.4

Traditional knowledge has now become a resource to be exploited economically such as natural resources have been the subject of exploitation. On the other hand, developing nations (Indonesia as one of examples) could form mutually beneficial through traditional knowledge regulation since there are many nation states whose Gross National Product benefits significantly from the exploitation of traditional knowledge. New regulation models should also incorporate royalty mechanisms to distribute capital back into Indigenous communities. It would also be possible to set up royalty sharing schemes between Indigenous peoples, innovators and corporations where traditional knowledge is transformed for new uses.

The World Intellectual Property Organization definition, that has come to be regarded somewhat as a standard definition, is on pages 193-194
2

http://www.unesco.org/most/bpindi.htm#definition World Intellectual Property Organization, Current National Models for Sui Generis Legislation, Geneva 2002 https://www.cbd.int/abs/infokit/brochure-en.pdf