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.

Genetic resources, biotechnology and intellectual property: The current debate and developing a constructive agenda for the South

2006 ◽  
Vol 3 (6) ◽  
Author(s):  
Manuel Ruiz
Keyword(s):  
Intellectual Property ◽  
Genetic Resources ◽  
Biological Diversity ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Current Debate ◽  
The South ◽  
Poor Countries ◽  
The North ◽  
Complex Relationships

AbstractOver the past few years, policy, legal and economic analysis of the complex relationships between genetic resources, biotechnology and intellectual property has multiplied. These relationships are fundamentally based on issues regarding rights over and control of biodiversity and related inventions and innovation. They notoriously confront biodiversity rich countries of the South, with technologically advanced but biodiversity poor countries of the North. Controversies are often captured under the general discussions on access to genetic resources and benefit sharing (ABS), as placed on the agenda by the Convention on Biological Diversity (CBD) after its adoption in 1992.

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.

scholarly journals PERLINDUNGAN HUKUM TERHADAP PENGETAHUAN TRADISIONAL MELALUI PENGEMBANGAN SUI GENERIS LAW

FIAT JUSTISIA ◽  
2016 ◽  
Vol 9 (4) ◽  
Author(s):  
Rohaini Rohaini
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
Traditional Knowledge ◽  
Qualitative Approach ◽  
Property Right ◽  
Intellectual Property Right ◽  
International Pressure ◽  
Property Regimes ◽  
Scope Of Protection

It’s cannot deny that intellectual property right laws, in certain aspects are possible for using to protect traditional knowledge from their utilization. However, in the same time, intelectuual property rezim also become “a tool” to legitimate of biopiracy practices. Due to the massive of international pressure, mostly developing countries, and the awereness that intellectual property regimes doesn’t optimal to protect traditional knowledge, it develops a discourse to develop a sui generis law outside of intellectual property right regimes. By using the normative method and qualitative approach, this research shows that in order to develop the sui generis law in Indonesia, there are several minimum elements that shall be contained in it, inter alia: the purposes of protection; scope of protection; creteria of protection; the beneficiaries of protection: the holder of traditional knowledge; the kind of rights to be granted; how does the rights acquired; how to enforce it; how does the rights lost or expired; and dispute resolution.Keywords: protection, traditional knowledge, sui generis law

scholarly journals The Patentability of Maori Traditional Medicine and the Morality Exclusion in the Patents Act 1953

2001 ◽  
Vol 32 (1) ◽  
pp. 255 ◽  
Author(s):  
Susan Young
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Traditional Medicine ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Biological Diversity ◽  
Patent Law ◽  
Convention On Biological Diversity ◽  
International Obligations

Many indigenous peoples, including Maori, are offended by third parties 'appropriating' their traditional knowledge by means of intellectual property rights, such as patents. The author first surveys international debate about indigenous intellectual property rights in connection with the patenting of traditional indigenous medicine. The author examines the role of morality in New Zealand patent law and how this fits in with New Zealand's international obligations under the World Trade Organisation's TRIPs agreement and the Convention on Biological Diversity. The author examines whether the patenting of Maori traditional medicine can be prevented under the morality exclusion in the Patents Act 1953 and outlines five arguments which might be used to justify various levels of intervention in the patenting process in order to protect Maori control over their traditional knowledge.

scholarly journals JUSTICE, EQUITY AND BENEFIT-SHARING UNDER THE NAGOYA PROTOCOL TO THE CONVENTION ON BIOLOGICAL DIVERSITY

2015 ◽  
Vol 24 (1) ◽  
pp. 113-141
Author(s):  
Elisa Morgera
Keyword(s):  
Environmental Justice ◽  
Genetic Resources ◽  
International Law ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Legal Concept ◽  
Nagoya Protocol ◽  
Case Basis

This article attempts to bridge the multi-disciplinary debate on environmental justice and the traditional international legal debate on equity with a view to analysing the legal concept of benefit-sharing in international law. To that end, the article uses the Nagoya Protocol to the Convention on Biological Diversity as a testing ground for: (i) unpacking different notions of justice that may be pursued through fair and equitable benefit-sharing from access to genetic resources and the use of associated traditional knowledge; and (ii) relating different notions of justice to the different functions that equity plays in international law. The aim is to test the potential wider application of linking a pluralist notion of environmental justice to different functions of equity in other areas of international law that refer to benefit-sharing. It is argued that this helps systematically unveil implicit legal design choices in relation to the pursuit of justice through international lawmaking, and interpret international legal instruments in ways that can contribute to negotiate concrete understandings of justice on a case-by-case basis.

Protection of Traditional Health Knowledge: International Negotiations, National Priorities and Knowledge Commons

2020 ◽  
Vol 6 (1) ◽  
pp. 98-120
Author(s):  
Ghazala Javed ◽  
Ritu Priya ◽  
Deepa V. K.
Keyword(s):  
Intellectual Property ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Health Knowledge ◽  
Customary Law ◽  
Intellectual Property Right ◽  
Convention On Biological Diversity ◽  
International Consensus ◽  
Traditional Health ◽  
Knowledge Commons

Traditional knowledge (TK) is under debate in the contemporary world for its inherent value and need for protection from ‘biopiracy’. International consensus is proving difficult on defining its scope and ambit of protection. Traditional health knowledge (THK) is a promising domain of TK which, due to its immense economic and commercial value, is prone to misappropriation. International provisions exist for protection and definitions of TK and related resources at various fora such as the Convention on Biological Diversity. Proposals to protection of TK under Intellectual Property Right regimes are being addressed by the World Intellectual Property Organisation (WIPO). The text of a proposed treaty is being debated at WIPO’s Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC-GRTKF). This article spells out the issues being negotiated at the WIPO-IGC-GRTKF. With THK characterised in a tiered manner based on its secret or diffused public availability, consideration of customary law is an imperative. India proposed that the national governments be given status of knowledge holders for THK in the public domain and fiduciary rights in case of closely held/associated THK. The article finds that a comprehensive national policy instrument and sui generis law for the protection of THK have become especially urgent in the light of international debates. It also proposes that, rather than Intellectual property (IP), the framework of a ‘knowledge commons’ for just sharing of TK and its innovations may be a better option.

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.

Asian Borderlands and the Legal Protection of Traditional Knowledge and Traditional Cultural Expressions

2013 ◽  
Vol 47 (4) ◽  
pp. 1403-1433 ◽  
Author(s):  
CHRISTOPH ANTONS
Keyword(s):  
Intellectual Property ◽  
United Nations ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Legal Protection ◽  
Indigenous Communities ◽  
Cultural Property ◽  
World Intellectual Property Organization ◽  
Convention On Biological Diversity ◽  
Nuanced Understanding

AbstractTraditional knowledge related to biodiversity, agriculture, medicine and artistic expressions has recently attracted much interest amongst policy makers, legal academics and social scientists. Several United Nations organizations, such as the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity under the United Nations Environmental Programme (UNEP), have been working on international models for the protection of such knowledge held by local and indigenous communities. Relevant national, regional or provincial level legislation comes in the form of intellectual property laws and laws related to health, heritage or environmental protection. In practice, however, it has proven difficult to agree on definitions of the subject matter, to delineate local communities and territories holding the knowledge, and to clearly identify the subjects and beneficiaries of the protection. In fact, claims to ‘cultural property’ and heritage have led to conflicts and tensions between communities, regions and nations. This paper will use Southeast Asian examples and case studies to show the importance of concepts such as Zomia, ‘regions of refuge’ and mandala as well as ‘borderlands’ studies to avoid essentialized notions of communities and cultures in order to develop a nuanced understanding of the difficulties for national and international lawmaking in this field. It will also develop a few suggestions on how conflicts and tensions could be avoided or ameliorated.

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