William Hartono - 16710002

8/4/2019 William Hartono - 16710002

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Protection of Indigenous, Ancient, and Traditional

Knowledge

I. Background

The era of globalization is facing serious problem to the international legal

community to set new international legal standard for solve the problem of intellectual property

protection. Protection of indigenous, ancient, and traditional knowledge communities is

considered to be one of the most problematical issues. They are vulnerable for free exploitation

without showing any respect to the origin. The developments of bioresearch, obviously

demonstrate the usefulness of traditional knowledge for the development of new product of

commercial importance such as cosmetic, medicine, etc. The necessity to protect the traditional

knowledge is captured by the attention of the international community to protect traditional

knowledge.

Literally, Traditional Knowledge (TK) differs from Indigenous Knowledge in

which it does not include contemporary Indigenous knowledge and knowledge developed from a

combination of traditional and contemporary knowledge (Henderson: 2002). The two terms are,

however, sometimes used interchangeably. Traditional Knowledge is the term used in most

national discourses and virtually all the international forums. Traditional Knowledge (TK), used

in early international discussions in the Convention on Biological Diversity, is techniques

spiritual and religious institutions and their symbols; and various other forms of Indigenous

knowledge. The term encompasses a broad range of Indigenous knowledge including ancient

stories, songs and dances; traditional architecture and agricultural; biodiversity-related and

medicinal, herbal and plant knowledge; ancient motifs, crests and other artistic designs; various

artistic mediums, styles, techniques; spiritual and religious institutions and their symbols; and

various other forms of Indigenous knowledge.1

In the other hand, the UNESCO (United Nations

Educational, Scientific and Cultural Organization) defines traditional knowledge as the local

knowledge that is unique to a given culture or society; It is the basis for local-level decision-


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making in agriculture, health care, food preparation, education, natural resource management,

and a host of other activities in rural communities.2 It is necessary to protect this traditional

knowledge since it is under serious risk today from the legal piracy. The main problem is that

academic knowledge created in laboratories is protected by strong law and legal patent;

however, traditional knowledge as a result of heritage system is not protected by strong law and

legal system.

II. Indonesias Case: Batik

Batik, as Indonesias heritage, is a cloth that traditionally uses a manual wax-

resist dyeing technique and considering as a high level level arts. The patterns that

exist in batik have a philosophy that is very closely with the Indonesian culture. Batik is

a manifestation of national pride, an identity that has been inherited since

hundred years ago. Unfortunately, the existence of Batik as Indonesias identity is

vulnerable because the batik has also claimed by other nations to be registered as their heritage.

The copyright on batik is protected by the state as provided in copyright acts

No. 19 year 2002, namely: "The state holds the copyright on the folklore and culture of the

people; such as stories, tales, fairy tale, legend, chronicle, songs, handicrafts, choreography,

dance, calligraphy, and other artwork. However, the law has not been encompassed

protection of traditional cultural expressions including the traditional batiks pattern.

Furthermore, the control of intellectual property rights in the international community, written in

the Trade Related Aspects of Intellectual Property Rights (TRIPS), has not accommodated the

traditional knowledge. This phenomenon indicates that the legal protection of traditional

knowledge in international community is still weak.

The weakness of copyrights law, both in Indonesia and the international

community in protecting traditional knowledge led to the dispute between Indonesia and

Malaysia. Each country claims that batik is their cultural heritage. Fortunately, this case has been
http://en.wikipedia.org/wiki/Resist_dyeinghttp://en.wikipedia.org/wiki/Resist_dyeinghttp://en.wikipedia.org/wiki/Dyehttp://en.wikipedia.org/wiki/Dyehttp://en.wikipedia.org/wiki/Resist_dyeinghttp://en.wikipedia.org/wiki/Resist_dyeing


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won by Indonesia at international level and UNESCO endorses batik as Indonesias cultural

heritage.

III.

National and International Initiatives to protect Indigenous, Ancient,and Traditional Knowledge

There are ten models that exist so far in the world as they (namely, African

Union, Brazil, China, Costa Rica, India, Peru, Philippines, Portugal, Thailand, and United States)

have undertaken the initiative to introduce specific laws to protect and regulate traditional

knowledge within their borders. The ten models will be outlined under the following categories

which are categories used by WIPO in analyzing on Sui Generis regimes, and commonly used by

other UN bodies.3

Most of ten models represent the first Sui Generis models for TK protection in the

world. Most of these legislations and laws are relatively recent and many of the countries are just

beginning to analyze the affects of their practical applications. Weather these mechanisms

function effectively within the countries and Indigenous communities is also a matter for further

analysis over time. However, these countries should be commended by Indigenous peoples and

the international community for their progressive and groundbreaking work on the issues. The

main international forums that have emerged as impacting and dealing directly with issues of TK

are the CBD and WIPO. They are intended to set standards for Indigenous rights. International

standards represent inclusive processes, which Indigenous people voice and vision has been

heard rather than denied.

IV. Principles and Solution in TK regulationBesides copyright, patents and trademarks have been explored with regard to their

potential to protect TK, including: trade secrets and industrial designs. However, this paper does

not go into those far. As an emerging models and strategies, I would like to give my opinions for

this position paper.


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First, Indigenous Nations must have an ownership over their traditional

knowledge, and protected by international copyright system. In the development of international

copyright system, royalty system could also be considered to fund the development of traditional

knowledge. Then, the protection for traditional knowledge should be based Customary Law since

it regulate indigenous societies and for many Indigenous peoples, their custodial relationship

with their knowledge has Customary Law as its basis. In addition, some of traditional knowledge

are prohibited in the public domain (listed in Customary Law) and should remain protected.

Furthermore, learning from Batik Case, Indigenous artists must have

international license which grants them permission to adapt their particular traditional

knowledge in their work. Non-Indigenous people and Indigenous peoples from other Indigenous

nations do not allow adapting that traditional knowledge in their work unless they have

permission to do it. When the permission is granted, they must list the information where it

comes from. This idea based on Access and Benefit-Sharing (ABS), The principle that when

Traditional Knowledge is accessed, there should be a benefit-sharing agreement between the user

and the Indigenous peoples who originated the Traditional Knowledge.4

Traditional knowledge has now become a resource to be exploited economically

such as natural resources have been the subject of exploitation. On the other hand, developing

nations (Indonesia as one of examples) could form mutually beneficial through traditional

knowledge regulation since there are many nation states whose Gross National Product benefits

significantly from the exploitation of traditional knowledge. New regulation models should also

incorporate royalty mechanisms to distribute capital back into Indigenous communities. It would

also be possible to set up royalty sharing schemes between Indigenous peoples, innovators and

corporations where traditional knowledge is transformed for new uses.

1 The World Intellectual Property Organization definition, that has come to be regarded somewhat as a standard definition, is on

pages 193-194

2 http://www.unesco.org/most/bpindi.htm#definition

3 World Intellectual Property Organization, Current National Models for Sui Generis Legislation, Geneva 2002

4 https://www.cbd.int/abs/infokit/brochure-en.pdf
http://www.unesco.org/most/bpindi.htm#definitionhttp://www.unesco.org/most/bpindi.htm#definition

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William Hartono - 16710002