Thailand Law Journal 2009 Spring Issue 1 Volume 12

HUMAN RIGHTS STANDARDS FOR THE PROTECTION OF INTELLECTUAL PROPERTY: TRADITIONAL KNOWLEDGE AND INDIGENOUS RESOURCES (Part I)

By Panumas Kudngaongarm**

1. INTRODUCTION

Intellectual property has become an influential factor in world trade and environmental policies. Intellectual property regimes include protections in patents, copyrights, trademarks and designs. In the past, it was uncertain as to whether biotechnology was protected under intellectual property regimes. After a decade of debate biotechnology is now protected in the European Union (EU) under the terms of the Directive on the Legal Protection of Biotechnological Inventions in 1998.¹ In the United States, biotechnology receives greater protection than in Western European states. The US judiciary has taken a flexible approach to interpreting traditional patentability criteria under the Plant Patent Act 1930 and the Plant Variety Protection Act 1970, avoiding difficult assessment of additional marginal constraints and the political will.²

In contrast, the protection of traditional knowledge and indigenous resources (genetic resources) has languished until recently. Industrialised countries began to exploit the biological resources of developing countries in the 1980s. Current intellectual property regimes are being used as an instrument for legitimate exploitation of developing countries’ resources.

Traditional knowledge and indigenous resources (genetic resources) in developing countries are being threatened by the eurocentric regimes of intellectual property rights. These regimes are explicitly adopted in the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). Developing countries are now struggling to find ways to protect their traditional knowledge and genetic resources.

This paper will consider firstly various definitions of traditional and indigenous knowledge, traditional and indigenous resources, indigenous peoples, local communities and their relationships. Secondly, it will explore historical approaches to protection. Thirdly, it will address human rights standards for the protection of intellectual property. Finally it will examine the debate on recent developments in the protection of traditional knowledge and indigenous resources, especially in the modern human rights frame work.

2. DEFINITIONS

The definition of traditional knowledge, indigenous knowledge, traditional resources and indigenous resources helps us to understand what subject matter may be protected, who should be protected and why protection is necessary.

A Traditional Knowledge
Traditional knowledge is a term with a wide range of meanings which impact on other terms, such as, traditional cultural expression, indigenous knowledge, and intangible cultural heritage. Traditional knowledge may be defined by two distinct elements, time and field of knowledge.

1 Time Element
Traditional knowledge is generally referred to as something emerging in the past or as static knowledge of ancient peoples. Wikipedia Encyclopedia suggests the following definition:

Traditional knowledge (TK), indigenous knowledge (IK), and local knowledge generally refer to the matured long-standing traditions and practices of certain regional, indigenous, or local communities. Traditional knowledge also encompasses the wisdom, knowledge, and teachings of these communities. In many cases, traditional knowledge has been orally passed for generations from person to person. Some forms of traditional knowledge are expressed through stories, legends, folklore, rituals, songs, and even laws. Other forms of traditional knowledge are often expressed through different means³

Traditional knowledge is not necessarily ancient or static.⁴ It is prior knowledge passed from generation to generation which constantly evolves over time in response to a changing environment and is regarded as pertaining to a particular people or territory. The clear advantage of this definition is its process-related character. Traditional knowledge is not defined in detail in relation to its object, but rather in relation to the process in which traditional knowledge is developed.⁵ Some scholars reveal that even today innovations are made to aspects of traditional knowledge.⁶

Traditional knowledge then can be defined as tradition based (i.e. generally developed on the basis of transmission from generation to generation) intellectual creations (i.e. based on intellectual activity) and innovations.

Traditional knowledge is a complex, multifaceted phenomenon that is continually developing through human interaction with the environment. It is typically dynamic and current. Therefore, traditional refers only to the way in which the knowledge has been developed. It does not mean that the subject matter is limited to creations or innovations of the past.⁷

2 Field of Knowledge
Traditional knowledge may also be characterised as a body of knowledge built by a group of people through generations living in close contact with nature and the way this knowledge has been applied. It is not always particular pieces of knowledge.

Traditional knowledge may also be referred to systems of tradition-based knowledge developed over time by indigenous peoples or local communities in any sphere of scientific or artistic application, regardless of whether such knowledge is collected and conveyed through written, oral, or other form. This could apply to inventions, discoveries (such as plant usage), designs, symbols, and secret or sacred knowledge.⁸

Experts, such as Graham Dutfield, refer to traditional knowledge as a knowledge associated with the environment rather than knowledge related to, for example, artworks, handicrafts and other culture works and expressions which tend to be considered as elements of folklore. Traditional knowledge or traditional environment knowledge is a body of knowledge built by a group of people through generations. It includes a system of classification, a set of empirical observations about the local environment, and a system of self-management that governs resource use.⁹ He emphasises in environmental field more than other fields.

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.