Imas Rosidawati Wiradirja
Imas Rosidawati Wiradirja
Imas Rosidawati Wiradirja
Abstract
As one of countries member of World Trade Organiza tion (WTO) and World Intellectual
Property Organization (WIPO), Indonesia must concern on and participate on initiatives to prevent
infringement on intellectual property rights (IPRs).
The objectives of this paper are to analyze and find answers on several problems as follows: firstly,
to find the legal protection on intellectual property rights on traditional knowledge specific regulation in
Indonesia which has not yet available; secondly, to find the concept of the governance of traditional knowledge
which performs justice principle in term of supporting the economic development in Indonesia.
This paper found that, first, the legal protection for traditional knowledge using the regulations of
Intellectual Property Rights, in fact, cannot give a total protection. In essence, the protection of Intellectual
Property Rights is monopolistic, exclusive, and individualistic making it to be private domain. This is much
different from traditional knowledge more focused on public domain. The purpose of legal protection will not
only avoid an unfair competition with Misappropriation but also for the economic development. Second, the
governance concept of traditional knowledge will be perfectly designed by making a Sui Generis system, by
creating a comparing document (prior art) as a defensive protection mean which accommodate the “benefit
sharing” concept. In this concept, the custodian of traditional knowledge is the community. The existing
regulation of Intellectual Property Rights after Indonesia ratified TRIPs cannot give any justice for the
protection toward traditional knowledge for the existence of misappropriation.
A. Introduction
In the free trade era, there are many countries seeking for new alternative products to trade in market by
maximizing traditional knowledge based products from developing countries like Indonesia and trying to make
an acquisition of the products and develop them more. These efforts are intended to rule the global market
without giving any contributions to the countries who own the original products. 1
This is the case commonly found in developing countries like Indonesia where its biological and genetic
resources are fraudly explored, especially those related to traditional knowledge based products. This is due to
the increasing of biopiracy which takes place without any approvals from the rights owner and therefore not
giving any significant contribution or compensations. One of the cases is in Indonesia where the rights of
1
Sudarmanto, Produk Kategori Indikasi Geografis Potensi Kekayaan Intelektual Masyarakat
Indonesia, Lembaga Pengkajian Hukum Internasional Fakultas Hukum Universitas Indonesia, Jakarta, 2005, p.
109 – 110.
In 1997, WIPO established the Global Intellectual Property Issues Division with the purpose to identify
problems that may have significant impacts on Intellectual Property Rights (IPR).4 One of the global issues that
has impact on IPR is the one relating to traditional knowledge protection as one of the kind of intellectual
activity in the industrial, scientific, literary or artistic field.. 5 There are many forums coordinated by Convention
on Biological Diversity (CBD), World Health Organization(WHO) and UNESCO who conducted studies and
prepared inputs about things that need to study and to being given exact rules by developing international
agreement on utilization of biodiversity existed in a site.
From 2000 to 2012, negotiations intended to develop protection on Genetic Resources, Traditional
Knowledge, and Folklore in the forum of Inter-Governmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge, and Folklore (IGC IP-GRTK) on the World Intellectual Property
Organization (WIPO) still take place. Observation conducted by WIPO reported that the agreement commonly
2)
Misappropriation : “the unauthorized, improprer or unlawful use of funds or property for purpose
other than that for which intended”. Black’s Law Dictionary (6th ed., 1990), 998.
3
Agus Sarjono, Hak Kekayaan Intelektual dan Pengetahuan Tradisional, Alumni, Bandung, 2006, p.
12-17.
4
WIPO, Intellectual Property Needs. (Geneva, 2001), 16.
5
Pengertian intellectual property yang didefinisikan oleh WIPO mencakup bentuk tersebut, disamping
bentuk yang sudah lazim dikenal seperti inventions, industrial design, trademarks copyrights, dan lain-lain.
WIPO, Ibid., 15.
Internationally, especially those related to IPR, Indonesia has implemented the TRIPs Agreement as one
of the point of agreement in World Trade Organization (WTO). However, in the other side, developed countries
still have no serious intention to consider local people’s intellectual rights for traditional knowledge. Premises
developed in GATT Uruguay Round agreement, especially those related to world trade commodities with IPR
8
(TRIPs), could not yet able to consider the interest of local people; meanwhile in the other side, developed
countries are very much enjoying the benefits of access to genetic resources which widely available in
developing countries. There should not be discrimination in the utilization of genetic resources between local
and foreign bioprospectors.9
Moreover, there are many developed countries like United States showing different attitudes when third
world countries exclaim their concern on the utilization and exploration of biodiversity and traditional
knowledge through Convention on Biological Diversity (CBD). They refuse to sign the convention. The reason
why the United States refuses the convention is that CBD may inhibit the protection on intellectual property
rights.10 This is inconsistent with their interest in developing biotechnology industry.11
The demand on the protection of traditional knowledge and biodiversity resources firstly aroused in the
Convention of Biological Diversity (CBD) in 1992. Indonesia has agreed to the United Nation Convention on
Biological Diversity by enacting the Law Number 5 year 1994 about the Enactment of the United Nation
Convention on Biological Diversity which mandated the establishment of a protocol for Biosafety. And on
6
Claudio Chiarolla, Plant Patenting, Benefit Sharing and the Law Applicable to the Food and
Agriculture Organisationb Standard Material Transfer, The Journal Of World Intellectual Property, Blackwell
Publishing Ltd, Volume 11 Number 1 Januari 2008, p. 2-6
7
Philip Schuler, Biopiracy and Commercialization of Ethnobotanical Knowledge, in : Poor Peoples’s
Knowledge Promoting Intellectual Property In Developing Countries, J. Michael Fingerand Philip Schuler (ed),
A Copublication of the World Bank and Oxford University Press, Washington, 2004, p.160.
8
Frederick M Abbott, “Protecting First World Assets in The Third World: Intellectual Property
Negotiations in the GATT Multilateral Frameworld”, Vanderbilt Journal of Transnatonal Law, (Vol. 22, No. 4,
1989), 712-717.
9
Daniel Wiiger, Prevention of Misappropriation of Intangible Cultural Heritage through Intellectual
Property Laws, in : Poor Peoples’s Knowledge Promoting Intellectual Property In Developing Countries, J.
Michael Fingerand Philip Schuler (ed), A Copublication of the World Bank and Oxford University Press,
Washington, 2004, p.186.
10
Anthony D’amato & Doris Estelle Long, International Intellectual Property Anthology, (Cincinnati:
Anderson Publishing Co., 1996),p. 79.
11
Mark Anderson, “Convention on Biological Diversity”, Solicitor Journal, (16 Oktober 1992), p.
1030.
Traditional knowledge are innovations and the volume of knowledge continually developed, acquired,
used, practiced, transmitted and sustained by communities through generations supported by their ecology,
environment, life styles, attitudes, societies and culture. 12
The definition of Traditional Knowledge by WIPO is not difference to the one defined by Convention on
Biological Diversity (CBD). Traditional Knowledge is a key concept consisted in Article 8 (j) which determines
the importance of traditional knowledge roles as follows: …. To encourage the equitable sharing of the benefits
arising from the fillsation of such knowledge, innovation, and practices."
The complete statement of Article 8 (j) is as follows:
“ 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, innovation and practices and encourage
the equitable sharing of the benefits arising from the utilization of such knowledge, innovation and
practices. “
Of the following three focuses: Genetic Resources, Traditional Knowledge, and Folklore Expression,
genetic resources are the most interesting challenge for all stakeholders to develop a law in Intellectual Property
Rights (IPR) since it has concept, system, originality, ownership, and time-frame for protection which difference
to the well-known conventional IPR. Genetic Resources, Traditional Knowledge, and Folklore Expression
consist of ideas that have been preserved through oral and unwritten tradition. In term of ownership, all
conventional IPR regime, except Collective Brand and Geographic Indication, centered on individual ownership
and limited by time-frame. Meanwhile, Genetic Resources, Traditional Knowledge, and Folklore Expression are
communal ownership in nature and have no limit of ownership time due to its continual and generation to
12
Charles R. McManis, Biodiversity, Biotechnology and Traditional Knowledge Protection : Law,
Science and Practice, Biodiversity Law Intellectual Biotechnology Traditional, , Earthscan Sterling, VA,
London, 2007, p.4.
Costa Rica is the first country to have concern on traditional knowledge and enacted a law for
protecting it. The country enacted the law using Sui Generis system in which the Article 82 of The Biodiversity
14
Law of the Republic of Costa Rica of 1998 determined that:
"The State expressly recognizes and protects, under the common denomination of sui generis community
intellectual rights, the knowledge, practices, and innovations of indigenous people and local communities
related to the use of components of biodiversity and associated knowledge. This right exists and is legally
recognized by the mere existence of the cultural practice or knowledge related to the genetic resources and
biochemical; it does not require prior declaration, explicit recognition nor official registration; therefore it
can include practices which in the future acquire, such status. This recognition implies that no form of
intellectual or industrial property rights protection regulated in this chapter, in special laws and in
international law shall affect such historic practices."
The Philippine has also developed a regime for protecting its traditional knowledge. Section 17 in Article
14 of their constitution says that:15
“The State shall recognize, respect and protect the rights of the indigenous cultural
communities to preserve and develop their cultures, traditions and institution. It shall consider these in the
formulation of national plans and policies.”
Moreover, the constitution was described in Indigenous People Rights Act 1997 which consisted of the
following things:
“Indigenous cultural communities/indigenous peoples have the right to practice and revitalize their
own cultural traditions and customs. The state shall preserve, protect and develop the pass, present and
future manifestation of their cultures as well as the right to the restitution of cultural, intellectual,
religious and spiritual property taken without their free and prior informed consent or in violation of
their laws, traditions and customs.”
13
Miranda Risang ayu, Pentingnya Perlindungan Defensif Terhadap Sumber Daya Genetik,
Pengetahuan Tradisional dan Ekspresi Budaya Tradisional Indonesia, Penemuan Hukum Nasional Dan
Internasional, Dalam Purnabakti Prof.Dr. Yudha Bhakti, SH.,MH. , Fikahati Aneska, Bandung, 2010, p. 390
14
Andriana & Gazalba Saleh , Perlindungan Hukum Varietas Baru Tanaman Dalam Perspektif Hak
Paten dan Hak Pemulia, Raja Grafindo Perkasa, Jakarta, 2004, p. 43
15
David Daoas, “Efforts at Protecting Traditional Konwledge: The Experience of Philipines”,
Roundtable on Intellectual Property and Traditional Knowledge, (WIPO/IPTK/RT/99/6a, October 27, 1999), 9.
16
WIPO, Intellectual Property Needs, 64-65. Lihat juga Christine Haight Farley, “Protecting Folklore
of Indigenous Peoples: Is Intellectual Property the Answer?”, Connecticuit Law Review, (Fall, 1997), 4-7.
17
Rene David & John E.C. Brierley, Major Legal Systems in the World Today, 3rd ed., (London:
Stevens & Sons, 1985), p. 312-313.
18
Christopher May, The World Intellectual Property Organization Resurgence and the Development
Agenda, Routledge Taylor &Francis Group, London and New York, 2006,p. 3.
19
Ian F Spellerberg, Biological Diversity, Concerevation and Resource Management, Biodi versity
Conservation In Asean Emerging Issues & Regional Needs, Asean Academic Press, London, Printed and bound
in Malaysia 2007,p. 7
Indonesia could also take an action to refer to WIPO Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore (IGC-IPGRTKF). If it is agreed, there are
some important components that could be included in sui generis law as follows:
The objectives of providing protection for traditional knowledge through sui generis law system are as
follows:
a) Creating a preservation, protection, and development system of the traditional knowledge.
b) Protecting the rights of traditional knowledge owners.
c) Developing the community’s capacity who own the traditional knowledge in Indonesia.
d) Improving national capacity to innovate based on traditional knowledge.
20
WIPO, Intellectual Property Needs, (2001).
21
Michael Blakeney, “What is Traditional Knowledge? Why Should It Be Protect? Who Should Protect
It? For Whom?” Undestanding The Value Chain”, dalam WIPO Roundtable on Intellectual Property and
Traditional Knowledge, WIPO/IPTK/RT/99/3, (October 6, 1999), 2. Dalam perspektif WIPO, folklore adalah
bagian dari pengetahuan tradisional. See WIPO, Intellectual Property Needs, 26.
22
Agus Sarjono, Hak Kekayaan …………., Op. Cit.,p.304
Difference to the IPR regime, rights over traditional knowledge owned by people is not a timely limited
rights. The rights over traditional knowledge is granted without any time limitation. Therefore, the issue about
time limitation of rights is not relevance in sui generis law. The protection of traditional knowledge means
nothing if the law or regulation protecting the knowledge cannot be implemented effectively. One of the factors
supporting the effective implementation of the law is that the law implement sanctions in form of compensation
for breaching over the law. In the system of traditional knowledge in Indonesia, it is difficult to ask indigenous
people to actively participate on law enforcement efforts. Therefore, active initative should be taken by
government.
D. Conclusion
1. In conclusion I wish that the protection Traditional Knowledge of expressions of folklore should not be
undertaken for its own sake or as an end in itself, but “as a tool for achieving the goals and aspirations
of relevant peoples” including the respect for cultural rights and the protection of tradition-based
creativity as an ingredient of sustainable economic development. Apart from their core historical,
cultural, spiritual and social significance, they are also economic assets.
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Regulations
Law no. 5 year 1994 on ratified United Nations Convention on Biological Diversity
Law no. 7 year 1994 on ratified WTO
Law no. 5 year 2001 on Trademark
Law no. 19 year 2002 on Copy Rights
Law no. 21 year 2004 ratified Cartagena Protocol On Biosafety To The Convention On Biological
Diversity
Brief biography :
Dr.Imas Rosidawati Wiradirja, SH.,MH. :
Postgraduate Senior Lecturer, Nusantara Islamic University (UNINUS), Bandung, Indonesia.
Specialization Area : Intellectual Property Rights & Corporate Law. Program Coordinator of Business law
Postgraduate Islamic Nusantara University. Editor of Media Justitia Nusantara Academis Journal, Islamic
Nusantara University. E-mail: i_rosida_df@yahoo.co.id. Mobile Phone: +62 81322418864. Nusantara Islamic
University, Jln Soekarno Hatta 530, Bandung 40286, Bandung, Jawa Barat, Indonesia