Protection of Traditional Knowledge in the Face of Globalisation: Balancing Mechanism between the Convention on Biological Diversity (CBD) and Trade-Related Aspects of Intellectual Property Rights(TRIPS)

The bioprospector or researcher who wants to have access to TK or bio-resources may be required by law to obtain a collection or access permit before he can use the knowledge or carry out bioprospecting activities. Permission can be given on the condition that a benefit sharing agreement is signed with the authorised State representative. This requires the State to set up a government agency that has authority to give access permits and supervise all contractual arrangements.

For a public contract like a bioprospecting contract to be valid and enforceable, the person who signs the contract on behalf of the State must be fully empowered to enter into contracts and agreements with the person or institution interested in utilising TK. The person who is authorised to sign a contract can be an institution of the source country or the local or indigenous community that consents to collection of TK and biological materials. The consenting party, which may be called the provider, is the person authorised by law to enter into the contract. The other party, which is called the collector, recipient or bioprospector, could be a research institution, a private company, or an individual researcher desiring access to TK and bio-resources for research or screening.

2.4 The protection of TK through the application of intellectual property laws

The IPR system is not designed to suit the needs of indigenous and local communities. The current systems of IPRs adopt too high standards of protection and the criteria are difficult to satisfy by innovations generated at the community level.²⁴ For example, a TK-based product, which generally comprises active substances found in nature, rather than a pure form of substance, is not considered new and inventive and is hence denied patent protection. But when researchers and companies take the next step by using the same knowledge in laboratories, such as by isolating, altering or purifying an active chemical of the herbal plants, the substance will become a novel and inventive piece of knowledge and thus patentable.

There are some other reasons that can explain why the IPR system is not suitable for protecting TK, including:

The use of IPRs may lead to heavy commercialisation of knowledge and resources. Applying the market mechanism to TK will erode the pool of valuable herbs and wild species and might undermine local culture and way of life of many people.

The IPR system protects individual and corporate interests, rather than communal rights. Stevenson argues that “the individuality upon which patents are based could seriously disrupt that indigenous community or neighbouring indigenous communities.”²⁵

Some forms of IPRs may be used to protect TK, but there are still inadequacies in those laws. For example, copyrights and trade marks do not protect information per se.This makes it impossible for local communities to rely on these types of IPRs alone. Although trade marks and geographical indications can protect goodwill and reputation of TK-based goods, the success of the legal protection depends very much on the extent to which indigenous and local communities could create commercial and marketing strength.

Local communities, farmers and traditional practitioners are usually not considered joint inventors under the concept of joint inventorship. According to patent law, in order to claim joint inventorship each joint inventor must have contributed to the inventive thought and to the final result. This condition creates difficulties for the TK holders, who may not have a demonstrable role in the final conception.

Even if IPRs were extended to cover informal knowledge, there would still be serious problems with allocation of those rights: how the rights might be enforced, what administrative structure to support the rights and how the benefit of the rights might be delivered to the stakeholders. And even if TK were protected under IPR law, there still would be several limitations in the enforcement of rights. How will the local communities monitor infringement? Can the communities afford to pay the high cost of litigation and for expert advice from highly specialised patent lawyers? In addition, filing a patent application involves a complex and expensive process, and demands special expertise. All these problems combined make it more difficult for local communities to protect their TK under the current IPR system.²⁶

It is obvious that companies are in a more advantageous position to utilise the IPR system. When TK is patented in a foreign country, the patentee will have a legal right to prevent imports of patented products into that country. The enforcement of patent rights will preclude the efforts of indigenous and local communities in developing countries in seeking to enter into foreign markets.

The contribution of IPRs to the owners of TK seems minimal. The unsuitability of the existing IPR laws makes it necessary for developing countries to adopt a sui generis law if they want to protect their informal innovations and biological resources.

The question of who can claim the rights relating to TK, both knowledge and materials, depends on the policy of each country. The national legislation may confer rights over such knowledge to the State, individuals, or communities. For the past two decades, a number of international institutions have increasingly supported community-based legal rights (i.e. the right of indigenous and local communities to control the reproduction and exploitation of traditional intellectual creations). CBD, for instance, stipulates that rights over natural resources belong to the State, but the State is required to develop appropriate policies and legislation which “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities”.²⁷

Thailand Law Journal 2009 Spring Issue 1 Volume 12

2.3 Authority for issuing access permits