PROTECTION SYNERGY: HOW WE LEARN TO STOP WORRYING ABOUT IPR AND OUR TRADITIONAL KNOWLEDGE

(Published in GREENERS Magazine, Bandung, Indonesia – November 2007 Edition)

 

As the home to world’s largest biodiversity second only to Brazil, as well as hundreds of different ethnic groups, it is fairly understandable if traditional knowledge can also be easily found among local communities in Indonesia. Traditional knowledge (TK), can generally be understood as a set of traits, wisdoms, and practices possessed and maintained by the beholding community, which emerged and gradually evolved through centuries of its mutual bounds and interaction with the respective surrounding nature. One of the common examples of TK, for instance, is traditional medicines made out of local plants/herbal substances.

 

While such traditional knowledge is indeed a priceless cultural heritage for the respective nation, sometimes it also holds economic potential of very significant values. This situation in fact often exposes the respective local community to the eminent danger of what is commonly referred to as biopiracy, which is outsider’s non-rightful commercial exploitation of traditional knowledge and natural resources.  The most common scene of biopiracy occurs when a local indigenous community openly exposes its own traditional knowledge to visiting foreigners, who later turn out to “steal” it for further commercial exploitation without making any appropriate attribution.

 

On the other hand, Indonesia has for years been member to a number of international treaties and conventions on Intellectual Property Rights (IPR), the most important of which would be Bern Convention 1886 for the Protection of Literary and Artistic Works and Paris Convention 1883 for the Protection of Industrial Property, and the recent Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) as one integral and inseparable part of the Agreement Establishing the World Trade Organization (WTO). Indonesia is also a member of World Intellectual Property Organization (WIPO).

 

WIPO defines IPR as rights that evolve from human intellectual activities in the fields of industry, science, literary, and arts. While no one is really sure about when it was coined for the first time, the term IPR itself primarily serves as the “blanket name” to refer to different kinds or regimes of exclusive rights protection system, with each and every single of which has evolved developed and also covers subject matters distinguishable from one another. Copyright, for instance, protects original artistic, literary, or scientific works; whereas patent protects technological inventions.

Slightly different, trademark protects distinctive marks used by a single business provider/operator as to distinguish the respective goods and/or services from goods and/or services endorsed by other operators. Among various and ever-evolving kinds of IPR, following its ratification of the TRIPS Agreement in 1994 Indonesia currently applies seven regimes of IPR: Copyright, Patent, Trademark, Industrial Designs, Integrated Circuit Layout Design, Trade Secrets, and Plant Varieties.

 

It is true that traditional knowledge is also having the sense of being “intellectual property” as it is actually resulted from long process of human intellectual creation. However, protecting traditional knowledge under the existing regimes of modern IPR system cannot be seen as a feasible solution. Both are actually working on different principles. Existing IPR regimes are based upon the concept of individual property rights, acting as a limited monopoly in the form of exclusive rights for the rights holder to exclude any other party to use the protected subject matter without his permission. In the contrary, traditional knowledge in the contrary is under the communal system of common proprietary and common use with the perpetual desire to always be that way.

 

More obstacles will thus appear within the technical aspects. Patents, for instance, can only be granted to inventions that are novel, meaning that it has never been disclosed anywhere in any form before; inventive, meaning that the invention is not obvious to any person skilled in the relevant art; and industrially applicable, meaning there is sufficient teaching with regard to composition, steps and/or procedures as to enable any one to perform the invention at any given time and place. It is difficult to expect traditional knowledge to fulfill those requirements as it would fail already at the very first test of novelty: as the name speaks for itself, all traditional knowledge have been existed for centuries long as each and every single one is inherited from generations to generations. Technically speaking, there should be no way that patent can be granted upon any traditional knowledge.

 

Technically speaking, am I correct? Well, actually there was in fact one shameful instance in which patent was granted upon a widely used traditional knowledge, at least until the patent was later invalidated. In 1995, the United States Patent and Trademarks Office (USPTO) granted patent to the University of Mississippi Medical Center for an invention entitled “Use of Turmeric in Wound Healing”. The patent immediately caused public outcries especially among Indian communities that have been very familiar to turmeric powder as household remedy for scrapes and cuts. Later in 1996 the patent was successfully challenged by the Council of Scientific and Industrial Research of India (CSIR) and thus revoked. However, the revocation succeeded not solely because turmeric had been in actual use for wound-healing in centuries, but more because CSIR was able to provide scientific documents and literatures indicating the relevant disclosure. Indeed, many people were still left wondering how this patent could even passed the USPTO’s novelty and inventive steps test at the first place.

 

Correct me if I’m wrong, but I also believe that the recent “Rasa Sayange” incident still lives in our memory, in which the use of the Indonesian folksong by Malaysian government for their tourism TV advertisement had, not surprisingly, succeeded in igniting public outcry in Indonesia. However, if we put aside for a while our “patriotic sentiment” and look closer, we would see that it is actually us who deserve more for the blame. The song “Rasa Sayange” as well as any other folk creations alike can hardly fit into the protection of “conventional” copyrights system, which requires the creator to be identifiable and had been around living up to at least fifty years ago[1]. On the other hand, up to this moment the Indonesian government is still unable to formulate the actual implementing regulation for what they call as “folklore copyrights” in the Law no.19/2002 on Copyrights, which should have been able to guard our cultural assets from misappropriation. For myself, however, I was kind of relieved to know that at least there is someone out there who is willing to take care of the beautiful “Rasa Sayange” before the song fall into obscurity, hidden in our “vault of cultural treasure”.

 

Anyway, the above incident and some other instances alike should not necessarily lead us to conclude that the present system of IPR is bad and harmful for the good of traditional people, their knowledge, and moreover, their way of life. The IPR system is already here with its own purpose and good: rewarding innovation as well as fostering more and more innovations; and has actually done quite a wonderful job on it. At this moment, a world without IPR protection is simply unthinkable of. As technological researches are getting more and more expensive, nobody would even think to engage in such activities without being sure of what he will reap in return of the investment. 

 

While knowledge and other creative works belong to traditional realms would hardly fit unto the protection of modern IPR, it is not impossible for us to design a specific protection system that will better accommodate the needs of traditional knowledge. In this regard, such protection must be able to preserve its sustainability and guarantee its availability to common good without becoming subject to exclusive individual ownership of any form.

 

One of the major obstacles to achieve above goal is that up to this moment we’re still lacking proper inventarization regarding what and which traditional knowledge we suppose to have, while documents and literatures regarding the subject are still rare and scattered in too many places. This is an unfortunate situation for us all, since a reliable database about our collection of traditional knowledge would make a good starting point for building a strong protection system thereof. . Remember, it was those scientific documents and literatures about turmeric that actually won the battle of patent invalidation, not the mere knowledge of its generic use for medication. In other words, we can never get anywhere without knowing what we actually have.

 

For safeguarding purpose, it is also important to raise the IPR requirements as to avoid granting exclusive monopoly upon works that should otherwise be available for everyone’s free enjoyment. Proposal for changes is being circulated and discussed among patent authorities in the world, for instance, which would add requirements for any patent applicant to include in his/her patent application a sworn statement indicating the use of genetic resources and/or traditional knowledge used within the claimed invention; accompanied with evidence of prior informed consent from the respective country of origin/local community. Such arrangement indeed would create a harmonious synergy between IPR and traditional knowledge as even though derived from development of existing traditional knowledge, an IPR-worthy innovation should not be denied protection it deserves.

 

Speaking about equality between holders of IPR and traditional knowledge especially in terms of economic gain, a fair benefit sharing arrangement can always be a possible solution[2]. An exemplary situation of such is when Aguaruna tribe of Peru succeeded in negotiating a know-how agreement with Searle after passing on medicinal plants and knowledge to the pharmaceutical company, and thus receives annual license fee that would move along with the market value. Another example is the Tropical Botanic Garden Research Institute (TBGRI)’s commitment to share its revenue from licensing a medicinal product based on Jeevani plant to a pharmaceutical company with the tribal Kani people in Kerala State, India.

 

At this end, no matter how far both differ from one another, it is clear that protection of IPR and traditional knowledge may actually work together in a synergy. More importantly, I suddenly remember a quote from an Oscar-winning movie “American Beauty” telling us to never ever underestimate the power of ignorance. The quote seems to me as never been so true before: the most dangerous threat to the sustainability of our natural resources, traditional knowledge and cultural assets we have always been so proud about, is nothing more than our own ignorance.  


[1] The minimum term of copyright protection according to the TRIPS Agreement is until 50 years after the death of the author/creator. Indonesia applies this minimum requirement, while USA and Germany have extended the term up to 70 years, enabling Mickey Mouse to keep enjoying copyright protection in his home country up to 2036. Interestingly, lobbies for this term extension were heavily supported by Disney, prompting people to jokingly refer to the Copyright Term Extension Act as the “Mickey Mouse Act”.

 

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Perihal Prayudi Setiadharma
Prayudi adalah penulis dan kontributor utama situs/blog marimengenalhki.com. Sebagian artikel yang ditulis Prayudi dalam blog ini juga telah diterbitkan dalam bentuk buku berjudul "Mari Mengenal HKI" oleh penerbit Goodfaith Production pada bulan Mei 2010. Prayudi telah menaruh minat yang mendalam pada bidang hukum hak kekayaan intelektual (HKI) sejak mengerjakan tugas akhir di Fakultas Hukum Universitas Padjadjaran, Bandung. Ia lalu memutuskan untuk menekuni minatnya tersebut dengan mengambil program Master of Intellectual Property Laws di University of Melbourne, Australia. Setelah menuntaskan program tersebut, Prayudi lalu bekerja di Law Firm AMROOS & PARTNERS, sebuah kantor hukum spesialis HKI yang berlokasi di Jakarta dan sejak Oktober 2010 berganti nama menjadi AMR PARTNERSHIP, hingga saat ini dimana ia berposisi sebagai Partner.

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