Last month 20 national delegations met in Bali for the Meeting of Like-Minded Countries (MLMC) on International Legal Instrument(s) for the Protection of Genetic Resources, traditional knowledge and expression of folklore (GRTKF). Participating countries included, Algeria, Mexico, Brazil, Ecuador, Egypt, India, Indonesia and Malaysia.
Delegations from international organizations such as the FAO, WTO and World Intellectual Property Organization (WIPO) also attended the meeting.
If you do not want to lose property that is rightfully yours, you have to not only protect it, but maintain it. The problem with intangible property, however, is that we are seemingly unaware of its existence, until they have already been used by a foreign party.
As happened recently to our traditional Pendet dance. Other intellectual property might include traditional songs or even ingredients developed from traditional skills and local ingredients.
But this is not only the problem in Indonesia. Today GRTKF has become a unit of concept.
There are at least two facts concerning GRTKF.
First, as GRTKF reflect the identity of a country and its people, they need international protection — the same as the intellectual property rights (IPRs) have.
Today GRTKFs still fall outside the jurisdiction of IPRs. They are not covered by the Trade Related Aspects of IPRs (TRIPs)/WTO Agreement.
Second, as property, GRTKF is often misappropriated or pirated by transnational companies — which causes losses to the country owning said GRTKF, while the transnational company secures IPRs to protect their new, stolen piece of intellectual property.
Many countries take two measures to deal with the issue of theft of their national property.
First is internal measures. They consolidate their efforts by preparing a database, often an organized digital database like in India, Brazil or China. Simultaneously they are improve their legislation.
Indonesia, for instance, is preparing a bill on the protection and utilization of its traditional knowledge (TK) and traditional cultural expression (TCE). It is also moving towards the same direction with regards to genetic resources.
However, it is prepared separately since genetic resources are already part of the 1992 Convention on Biodiversities that has been ratified by Indonesia. India has gone even further by requiring patent applicants to disclose sources of inventions if people are using elements of the country’s GRTKF.
Second is international efforts, because national efforts to win international recognition will only become effective if there is already a binding international convention.
Even though GRTKFs are not protected under TRIPs, since 2000 the WIPO has already conducted efforts to inventory this issue — before it formed an intergovernmental committee (IGC) made up of a
number of working groups to assess the different aspects of the problem.
Nevertheless, the IGC has assembled 15 times with no substantive results. The problem lies in how wide the gap is between developed countries and developing ones.
The first hold that they are very sensitive in the possibility of disturbing the property rights system, especially patents, should GRTKF be accommodated.
The traditional cultural expression working group referred to the African Group proposal, which concerned a need to completely examine, among others, the definitions and object of protection, exceptions, limitations and duration, moral and economic rights, beneficiaries, and sui generis options for protection.
The traditional knowledge working group emphasized the importance of clarification of the definition of traditional knowledge and its misappropriation.
Regarding the fair and equitable benefit sharing issue, there was a need to clearly identify who actually holds the rights to TK as well as to note the role of innovations arising from TK as well as other forms of the TK’s derivatives.
It is necessary to stress the binding nature of obligations with regard to prior informed consent – which would essentially come from the community as governed in domestic laws and regulations.
The genetic resources working group reported that disclosure was a significant principle for all developing countries.
It also recognized the interface between the IGC and other UN institutions such as the FAO, for example, to work toward the implementation of farmers’ rights at national levels.
The next elements to be considered for the coming IGC session should relate to the range of options available for the access and benefit sharing arrangements surrounding intellectual property that could
ensure disclosure requirements and alternative proposals for dealing with the relationship between intellectual property and genetic resources.
For Indonesia, the above recommendations are very relevant because it is now in the process of passing bills protecting the country’s traditional knowledge and traditional cultural expressions as revision of intellectual property rights laws.
As various related institutions were represented in the Indonesian delegation, based on experience, productive coordination will be extremely difficult. Thus, further hard work awaits.
Hopefully this is only a matter of practicality, not perception of concept. If we do not want our national assets stolen we need to preserve and manage them effectively.
The writer is a lecturer at Faculty of Law, University of Indonesia.
