Opportunity for protecting RI’s biodiversity

As a country with rich biodiversity, the protection of environment and the journey toward sustainable development are sine qua non for Indonesia.

The calls for those endeavors should even be stronger with the recent global attention to climate change threats. It is therefore a must for Indonesia to be one of the forefront players in combating the threats, as has been shown recently at the 2009 Copenhagen Summit.

It shall be noted that the protection of environment does not only deal with positive protection.

It should also be carried out through defensive protection by setting necessary measures against biopiracy. As commonly understood, biopiracy is a biological theft that has played significant part in biodiversity losses.

One way to protect biodiversity, or protect against biopiracy, is through the application of “disclosure requirement”. This legal provenance is applied through various mechanisms. Mostly, the provenance is applied through an intellectual property rights’ system, in particular the patent regime.

“Disclosure requirement” in a patent system is a legal provenance that requires a patent applicant to disclose the content of its technological invention or innovation.

In a simple way, the applicant must disclose the country of source and/or origin of the invention/innovation in the process of patent granting.

Furthermore, in a more comprehensive approach, the applicant must also incorporate the elements of prior-informed consent (PIC) and access and benefit-sharing (ABS) when submitting his or her application to the patent office.

By having the three elements — the certificate of source and/or origin, PIC and ABS — it is hoped that biopiracy can be minimized. Furthermore, the element of ABS is also of great benefit since the commercial value of patented products or processes will be shared with the country of source and/or origin of the biodiversity.

A number of megadiverse countries as well as emerging economies, such as India, Brazil, China and South Africa, have applied the “disclosure requirement” legal provenance in their patent system. Furthermore, they are also the countries who have been leading the fight to amend the provisions of WTO-TRIPS (Trade-Related aspects of Intellectual Property Rights) Agreement to incorporate the element of “disclosure requirement”.

Unfortunately, this fight is still being challenged particularly by deve-loped countries such as the United States and Japan. It is understandable because many cases of biopiracy involve multinational corporations from those countries.

As for Indonesia, the challenge remains at home where “disclosure requirement” is not yet applied in its patent law. Perhaps, one of the reasons is because the latest amendment of Indonesia’s patent law was done in 2001, whereas the “disclosure requirement” has only reached its momentum in recent years.

Nevertheless, since Indonesia’s patent law is under revision process, it is therefore an opportunity as well as high time for the country to apply the legal provenance of “disclosure requirement”.

Although there is no such proof that the implementation of provenance will hinder patent applications, it is certain Indonesia’s biodiversity will have stronger protection against biopiracy.

As Prof. Eddy Damian, an IPRs expert from the University of Padjadjaran, has mentioned, the losses of Indonesia against foreign patents (that exploit Indonesia’s biodiversity) amount to billion of rupiahs annually. (Kompas, July 7, 2007). It doesn’t take a genius to understand the urgency of such a warning.


The writer is a graduate of Oxford University and a co-author of Multilateral Diplomacy in Environment (in Bahasa Indonesia); he currently works in Geneva, Switzerland.