Horticultural development of bush food plants and rights of Indigenous people as traditional custodians – the Australian Bush Tomato (Solanum centrale) example: a review

2012 ◽  
Vol 34 (4) ◽  
pp. 359 ◽  
Author(s):  
L. Slade Lee
Keyword(s):  
Intellectual Property ◽  
Traditional Knowledge ◽  
Indigenous People ◽  
Value Chain ◽  
Customary Law ◽  
Food Plants ◽  
Benefit Sharing ◽  
Agricultural System ◽  
Research Information ◽  
New Crop

New crops are regularly being introduced into cultivation, typically accompanied by a very small agricultural knowledge base. Often, there is a lack of agronomic research information or production experience upon which to rely, nor plant varieties optimised for an agricultural system. The challenges of a new industry may be compounded by a lack of consumer awareness of the new product and value-chain models need to be developed to suit the product. Frequently the plant species being developed into a new crop is one traditionally used as a food source or for medicinal or other applications by Indigenous people. Thus a complex series of additional factors comes into play – consent of the original custodians, respect and acknowledgement of their traditional knowledge that may be exploited, and totemic, kinship and spiritual associations that may be impacted. Establishing benefit sharing for the hereditary stewards, and protection of traditional collective intellectual property is an important ethical consideration. In the 21st century, the previous unjust exploitation of the traditional knowledge of the original custodians without acknowledgement or benefit sharing, is no longer accepted. However, prevailing strategies to safeguard intellectual property and traditional knowledge associated with native plants, for instance, to ensure that benefit is captured for Indigenous hereditary custodians may be lacking or may contravene Indigenous customary law. Where scientific, cultural, ethical, legal and commercial issues interact at the emergence of a new crop industry, stakeholders from various perspectives will bring critical, sometimes conflicting, impediments to resolve. The challenges that arise in the commercial exploitation of the Australian Bush Tomato, Solanum centrale, and its horticultural development, are reviewed and the approaches to their resolution are discussed.

scholarly journals A Regional Review of Genetic Resource Access and Benefit Sharing – Key Issues and Research Gaps

2021 ◽  
pp. 1-24
Author(s):  
Clare Morrison ◽  
Fran Humphries ◽  
Charles Lawson
Keyword(s):  
Intellectual Property ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
National Level ◽  
Sustainable Use ◽  
Benefit Sharing ◽  
Comparative Approach ◽  
Future Research ◽  
Access And Benefit Sharing ◽  
Legal Mechanism

Countries are increasingly using access and benefit sharing (ABS) as a legal mechanism to support the conservation and sustainable use of the world’s biological diversity. ABS regulates collection and/or use of genetic resources/traditional knowledge and sharing benefits from their use with the provider. The purpose of this review is to assess the trends, biases and gaps of ABS literature using a regional comparative approach about the key topics of concern between each region. It analyses four key topic groupings: (1) implementation of international, regional and national ABS policy and law; (2) intellectual property and ABS; (3) traditional knowledge; and (4) research, development and commercialisation. Findings included gaps in: (1) analysing effectiveness of national level implementation; (2) addressing apparent conflicts between support for intellectual property promoting exclusivity for traditional knowledge and challenges to intellectual property exclusivity for patents; (3) examining traditional knowledge of local communities (in contrast to Indigenous Peoples); and (4) lack of practical examples that quantify benefit sharing from research and commercialisation outcomes. We conclude that future research addressing the identified gaps and biases can promote more informed understanding among stakeholders about the ABS concept and whether it is capable of delivering concrete biological conservation, sustainable use and equity outcomes.

scholarly journals Pelindungan Hak Paten atas Pengetahuan Obat Tradisional Melalui Pasal 26 UU No. 13 Tahun 2016 tentang Paten (Protection of Patent Rights on Traditional Medicine Knowledge Through Article 26 of Law No. 13 of 2016 Concerning Patents)

2019 ◽  
Vol 10 (1) ◽  
pp. 49-65
Author(s):  
Trias Palupi Kurnianingrum
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Traditional Medicine ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Trips Agreement ◽  
Patent Law ◽  
Benefit Sharing ◽  
Traditional Medicines ◽  
Patent Rights

Patent as a branch of Intellectual Property Rights (IPR) serves to protect inventions on the field of technology, one of them being medicine. The rise on the number of cases on the theft of genetic resources and traditional knowledge on the field of medicine for commercialization purposes shows that the protection of patent rights on traditional medicine knowledge is still not optimal. This article is the result of a normative juridical research which is supported by an empirical data, examines the protection of patent rights on traditional medicine knowledge and the implementation of Article 26 of Law No. 13 of 2016 on Patents (Patent Law year 2016). In the research results, it was mentioned that even though the TRIPs Agreement did not accommodate the traditional knowledge, the presence of Patent Law year 2016 complemented the Indonesian government's efforts to save the knowledge of traditional medicines from biopiracy and misappropriation. It is necessary to regulate the disclosure obligation in TRIPs agreement and further mechanism regarding benefit sharing and granting access to traditional medicines knowledge. AbstrakPaten merupakan salah satu cabang Hak Kekayaan Intelektual yang berfungsi untuk melindungi invensi di bidang teknologi, salah satunya obat-obatan. Maraknya kasus pencurian sumber daya genetik dan pengetahuan tradisional di bidang obat-obatan untuk tujuan komersialisasi menunjukkan bahwa pelindungan hak paten atas pengetahuan obat tradisional masih belum maksimal. Artikel ini merupakan hasil penelitian yuridis normatif yang didukung dengan data empiris, membahas mengenai pelindungan hak paten atas pengetahuan obat tradisional dan implementasi Pasal 26 Undang-Undang Nomor 13 Tahun 2016 tentang Paten (UU Paten 2016). Di dalam hasil penelitian, disebutkan meskipun Perjanjian Trade-Related Aspects of Intellectual Property Rights (TRIPs) belum mengakomodasi pengetahuan tradisional namun hadirnya UU Paten 2016 melengkapi usaha pemerintah Indonesia dalam menyelamatkan pengetahuan obat tradisional dari biopiracy dan misappropriation. Perlu pengaturan kewajiban disclosure di dalam Perjanjian TRIPs dan mekanisme lebih lanjut mengenai benefit sharing dan pemberian akses atas pengetahuan obat tradisional.

scholarly journals Indigenous Customary Law and International Intellectual Property: Ascertaining an Effective Indigenous Definition for Misappropriation of Traditional Knowledge

2020 ◽  
Vol 51 (4) ◽  
pp. 597
Author(s):  
Nopera Dennis-McCarthy
Keyword(s):  
Intellectual Property ◽  
Traditional Knowledge ◽  
Customary Law ◽  
World Intellectual Property Organization ◽  
Effective Protection ◽  
System A ◽  
Property System ◽  
The World ◽  
Definition Of ◽  
Property Regime

The effective protection of indigenous traditional knowledge from misappropriation is a fundamental challenge faced by the intellectual property system. A substantial aspect of this challenge is how the intellectual property regime can practically utilise or incorporate indigenous customary law as a means of protection against misappropriation, when there is an inherent tension between the former and the latter. Any international legal instrument intended to protect against misappropriation of indigenous traditional knowledge will have to contend with this tension: a definition of misappropriation ought to encourage use of local indigenous customary law, but it also must be practically applicable within the confines of the intellectual property system. Consequently, this article considers the challenge in two parts. The first part requires ascertainment of a potential international legal definition of misappropriation that will uphold and maintain indigenous customary law, in the context of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) draft articles. To ensure the definition effectively affirms indigenous customary law, it will be based on three key "approaches" to indigenous custom. The second part entails application of the definition to the domestic context, namely through the case studies of New Zealand and Australia, and a subsequent critique of the difficulties of application, to illustrate the challenge of incorporating indigenous customary law within the intellectual property system. This article concludes that the risks inherent in an aspirational definition of misappropriation which may have some challenges in application are outweighed by the potential of normalising and encouraging indigenous customary law as the foundational basis for truly effective protection of traditional knowledge against misappropriation.

scholarly journals Positive Protection: Protecting Genetic Resources Related to Traditional Knowledge in Indonesia

FIAT JUSTISIA ◽  
2018 ◽  
Vol 11 (2) ◽  
pp. 122
Author(s):  
Rohaini Rohaini ◽  
Nenny Dwi Ariani
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
Genetic Resources ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Patent Law ◽  
Intellectual Property Right ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
International Pressure

Genetic Resources is a foundation of human life, as a source of food, industrial raw materials, pharmaceuticals, and medicines. From its utilization may provide a financial benefit to the provider and the user of it. Unfortunately, most of it obtained from developing countries through biopiracy, including Indonesia. Furthermore, in the early 1980s, access and benefit sharing (ABS) to genetic resources became an international issue. It leads to the adoption of the Convention on Biological Diversity (CBD) in 1992. However, since it was approved, the whole ideas of excellence of it could not be implemented, a problem on it still arises. Intellectual property right laws, in certain aspects, are possible for using to protect traditional knowledge from their utilization. However, at the same time, intellectual property regime also becomes “a tool” to legitimate of biopiracy practices. Due to massive international pressure, mostly in developing countries, it proposes two kinds of protections, which are positive protection and defensive protection. This paper will examine one of it, which is positive protection. By using the normative method and qualitative approach, this paper identified at least two kinds of positive protections that we can develop to protect genetic resources related to traditional knowledge, which are optimizing the patent law and developing the sui generis law. Furthermore, it can be done by some revision by adding new substances, an improvement on the articles, or even by doing the deletion on certain articles. Moreover, in order to develop the sui generis law, it identified several minimum elements that shall be contained on it, inter alia: the purposes of protection; scope of protection; criteria of protection; the beneficiaries of protection: the holder of traditional knowledge; the kind of rights to be granted; how the rights acquired; how to enforce it; how the rights lost or expired; and dispute resolution.  Keywords: Positive Protection, Genetic Resources, Traditional Knowledge.

scholarly journals Protecting Traditional Knowledge through Biocultural Community Protocols in Madagascar: Do Not Forget the “B” in BCP

2021 ◽  
Vol 13 (18) ◽  
pp. 10255
Author(s):  
Manohisoa Rakotondrabe ◽  
Fabien Girard
Keyword(s):  
Traditional Knowledge ◽  
Value Chain ◽  
Plant Genetic Resources ◽  
Benefit Sharing ◽  
Special Importance ◽  
Access And Benefit Sharing ◽  
Social Conventions ◽  
Food And Agriculture ◽  
Ethnographic Studies ◽  
Wide Range

As in many other countries in the south, the traditional knowledge (TK) of local communities in Madagascar is facing extinction. Biocultural community protocols (BCP), introduced in Madagascar following the implementation of the Nagoya Protocol (2010) and defined by the Mo’otz Kuxtal Voluntary Guidelines as “a wide range of expressions, articulations, rules and practices produced by communities to indicate how they wish to engage in negotiations with stakeholders”, holds out hopes for TK protection. By analysing two pilot BCPs in Madagascar, one established around the Motrobe (Cinnamosma fragrans) with a view to strengthening the existing value chain (BCP in Mariarano and Betsako) and the second initially established around plant genetic resources for food and agriculture (BCP of the farmers in Analavory), this study aims to assess the place and value ascribed to TK in the overall BCP development process and to analyse whether or not the process has helped to strengthen and revitalise TK at the community level. The ethnographic studies show commonalities in both BCP, in particular their main focus on access and benefit-sharing mechanisms, this against the backdrop of an economic model which stresses the importance of financial and institutional incentives; and conversely, a relative disregard for what relates to the biocultural dimension of TK. Local taboos (fady) as well as traditional dina (social conventions), which have long allowed for the regulation of access to common resources/TK, are scarcely mentioned. Based on these findings, we conclude that in order to revitalise TK, the process of developing BCPs should recognise and give special importance to TK, considering it as a biocultural whole, bound together with the territory, local customs, and biological resources; or else, TK is likely to remain a commodity to be valued economically, or a component like any other.

Intellectual Property for Mystics? Considerations on Protecting Traditional Wisdom Systems

2010 ◽  
Vol 17 (3) ◽  
pp. 519-546
Author(s):  
Rosanne Trottier
Keyword(s):  
Intellectual Property ◽  
Complex Systems ◽  
Cultural Heritage ◽  
Traditional Knowledge ◽  
Customary Law ◽  
Intangible Cultural Heritage ◽  
Cultural Expressions ◽  
Traditional Cultural Expressions ◽  
Traditional Communities

AbstractEfforts to protect, if not revitalize, intangible cultural heritage in its traditional communities, cannot succeed without due attention to issues of ownership—cultural, environmental, intellectual, economic … “intellectual property” categories in a wisdom system such as that of the Baul of Bengal show that Traditional Knowledge, Customary Law and Traditional Cultural Expressions are inseparable “property,” and that “ownership” should be understood on traditional terms. Within such an integrated continuum, knowledge itself is not limited to it modern meaning.Is it possible to bring about a true and equitable dialogue between radically antagonistic intellectual property universes—the modern one driven by profit, and traditional ones rooted in complex systems of multiple values?The death of a wise old one is the loss of a whole library—L. S. Senghor

Trend on the protection of traditional knowledge associated with genetic resources within intellectual property chapters of Free Trade Agreements: the Peruvian experience

2019 ◽  
Vol 14 (9) ◽  
pp. 728-738
Author(s):  
Diego Francoise Ortega Sanabria
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
Genetic Resources ◽  
Traditional Knowledge ◽  
Free Trade ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Developed Countries ◽  
Benefit Sharing ◽  
Legitimate Interests

Abstract During negotiations of Free Trade Agreements, the bargaining power of developed countries has pushed developing countries to yield to higher standards of intellectual property protection in exchange of commercial benefits. However, there is evidence that developing countries can also seek and ensure the adoption of measures aimed at safeguarding their legitimate interests as a result of these negotiations. An example is Peru, which has sought to ensure the inclusion of provisions to require patent applicants to disclose the origin of the genetic resources and the associated traditional knowledge when they are used in the development of an invention, as well as the presentation of the evidence as to the prior informed consent from their legitimate owners and the corresponding equitable benefit-sharing. This article seeks to analyze whether the terms finally adopted have had a real impact on the protection of the Peruvian traditional knowledge associated with genetic resources.

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