Thailand Law Journal 2009 Spring Issue 1 Volume 12

In conclusion, indigenous peoples and local communities are not synonymous. Traditional knowledge holders might be indigenous peoples or local communities, but not all traditional knowledge holders are indigenous. Similarly, not all traditional knowledge holders are local communities.⁴⁹

However, indigenous peoples and local communities are equally protected.⁵⁰ In general the words indigenous peoples and local communities or traditional knowledge holders or stakeholders or interested parties⁵¹ referred to the interested groups of peoples or interested rights-holders. The words traditional knowledge holders may not be widely used in this context because there is not a universally accepted definition of traditional knowledge.⁵² However, it should be kept in mind that whenever the terms indigenous peoples and local communities are used, it means two groups of peoples are being mentioned.

The other theme of protection is what needs to be protected for indigenous peoples and local communities.

D Indigenous, Traditional and Genetic Resources
Indigenous peoples and local communities need protection for their resources. The resources in this context include traditional, indigenous and genetic resources.

1 Indigenous and Traditional Resources
Indigenous resources are resources belonging to indigenous peoples. Traditional resources are the resources belonging to indigenous peoples or local communities. Traditional resources are assets of biological, spiritual, aesthetic, cultural and economic value.⁵³ The resources include biological, landscapes and cultural and spiritual values. They might be classified as renewable and non-renewable resources.⁵⁴ Therefore, the protection of indigenous resources or traditional resources in the broad sense may include tangible and intangible properties. WIPO uses the term “expressions of folklore”which can be divided into four different groups, such as, expressions by words, sounds, human body and material objects.⁵⁵

The protection of indigenous and traditional resources may be divided into two distinct groups: intangible properties or assets (such as verbal expressions and unwritten knowledge) and tangible properties (such as medicinal herbs, biological and genetic resources and properties in the form of material objects).

2 Genetic Resources
Genetic resources are a subset of traditional knowledge, traditional resources and indigenous resources. Genetic resources (biological resources) and traditional knowledge are inextricably linked. Expert, Michael Hassemer states that ‘genetic resources usually stand in a close relationship to the traditional knowledge of local populations, and both issues in many cases can not be clearly distinguished’.56 In addition, traditional knowledge and biological diversity sometimes share the same destiny, since indigenous culture diversity and biological diversity are closely interrelated.⁵⁷

Genetic resources are the main source of traditional agricultural and medicinal knowledge. Moreover, the marketing values of genetic resources are higher than other forms of traditional resources or expressions of folklore, such as songs, chants, narratives or designs. Most genetic resources are found in developing countries but the indigenous peoples have not received an equitable sharing of the benefit of their resources.⁵⁸ The misappropriations cases of traditional knowledge are mostly concerned with genetic resources, especially in pharmaceutical and agricultural industries.

49. The ‘traditional knowledge holders’ are ‘stakeholders’, meaning individuals, groups or organisations that are affected by and/or have an interest in a particular issue. See Google, Define: stakeholders (2007)
<http://www.google.com.au/search?hl=en&lr=&client=firefox-a&rls=org.mozilla:en-US:official&hs=EIe&defl=en&q=define:Stakeholders&sa=X&oi=glossary_definition&ct=title> at 15 January 2007.

50. The United Nations Declaration on the Rights of Indigenous Peoples, above n 33. ‘Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such’.

51. Daniel J. Gervais, Traditional Knowledge: A Challenge to the International Intellectual Property System, CRA-ADC (Creators’ Rights Alliance/ Alliance des droits des createurs) <http://www.cra-adc.ca/en/documents/tradition-knowledge> at 29 December 2006.

52. The United Nations Convention on Biological Diversity (CBD) 1992, Article 8(j) used the words ‘indigenous and local communities’ in this context, which stated that ‘subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.’

53. The International Institute for Environment and Development: IIED, above n 44, 4.

54. Johanna Gibson, above n 47, 33-7. ‘Renewable resources mean any natural resource (as wood or solar energy) that can be replenished naturally with the passage of time. A renewable resource is any natural resource that is depleted at a rate slower than the rate at which it regenerates. A resource must have a way of regenerating itself in order to qualify as renewable. Renewable resources include oxygen, fresh water, solar, timber and biomass. However they can become non-renewable if used at a greater rate that the environment's capacity to replenish them. For example ground water may be removed from an aquifer at a greater rate than the sustainable recharge. Removal of water from the pore spaces may cause permanent compaction (subsidence) that cannot be reversed. Renewable resources may also include commodities such as wood, paper and leather. Plastics, gasoline, coal, natural gas and other items produced from fossil fuels are non-renewable because no mechanisms replenish them. The abiogenic petroleum origin theory may be such a mechanism but petroleum is currently being depleted at a rate far exceeding discoveries of fields which could qualify as abiogenic in origin.’ See Wikipedia, The free encyclopedia (2007) <http://www.answers.com/library/Wikipedia-cid-546688256> at 15 January 2007. ‘Non-renewable resources mean natural resources that cannot be re-made or re-grown. Often fossil fuels, such as coal, petroleum and natural gas are considered non-renewable resources, as they do not naturally re-form at a rate that makes the way we use them sustainable. This is as opposed to natural resources such as timber, which re-grows naturally and can, in theory, be harvested sustainably at a constant rate without depleting the existing resource pool and resources such as metals, which, although they are not replenished, are not destroyed when used and can be recycled.’ See Wikipedia, the free encyclopedia, <http://en.wikipedia.org/wiki/Non-renewable_resources> (2007) at 15 January 2007.

55. The term is used in the sense in which it is used in the WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Prejudicial Actions, 1982 (the ‘Model Provisions’). Section 2 of the Model Provisions provides that ‘expressions of folklore’ are understood as productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community in the country or by individuals reflecting the traditional artistic expectations of such a community. The Model Provisions also offer an illustrative enumeration of the most typical kinds of expressions of folklore. They are subdivided into four groups according to the forms of the ‘expressions,’ namely expressions by words (‘verbal’), expressions by musical sounds (‘musical’), expressions of the human body (‘by action’) and expressions incorporated in a material object (‘tangible expressions’). The first three kinds of expressions need not be ‘reduced to material form,’ that is to say, the words need not be written down, the music need not exist in musical notation and the dance need not exist in choreographic notation.  On the other hand, tangible expressions by definition are incorporated in a permanent material, such as stone, wood, textile, gold, etc.  The Model Provisions also give examples of each of the four forms of expressions.  They are, in the first case, ‘folk tales, folk poetry and riddles,’ in the second case, ‘folk songs and instrumental music,’ in the third case, ‘folk dances, plays and artistic forms of rituals,’ and in the fourth case, ‘drawings, paintings, carvings, sculptures, pottery, terra-cotta, mosaic, woodwork, metalware, jewelry, basket weaving, needle-work, textiles, carpets, costumes, musical instruments, architectural forms’. See WIPO Report, above n 16, 22.

56. Michael Hassemer, ‘Section 2. Genetic Resources’ in Silke von Lewinski (ed), Indigenous Heritage and Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore, (2004), 151,163.

57. Ibid. See also Biber-Klemm, ‘Biotechnology and Traditional Knowledge: in Search of Equity’ 2 Nos. 1/2/3 (2000) International Journal of Biotechnology 85.

58. Daniel Gervais, TRIPS, DOHA and Traditional Knowledge, (Draft version, final will be published in the Journal of World Intellectual Property) <http://www.google.com.au/search?hl=en&client=firefox-a&rls=org.mozilla:en-US:official&hs=D7g&sa=X&oi=spell&resnum=0&ct=result&cd=1&q=Daniel+Gervais,+Trip,+Doha+and+Traditional+Knowledge&spell=1> at 17 January 2007.

This article is published with the kind permission of Panumas Kudngaongarm, Professor, Ph.D. Candidate, School of Law, the University of New England, Australia. (Lecturer, School of Law, Sukhothai Thammathirat Open University, Thailand.). This article was presented at the Inaugural Conference of the Asian Society of International law: International Law in Asia-Past, Present and Future.