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 conception of ownership not only derives from natural law, but is also a direct reflection of society’s determination as to how its valuable resources should be managed. The key to understand the concept of ownership is to examine the social and environmental context surrounding TK and biological resources.

Since the individual-based rights do not conform to traditions and practices of most local communities, the TK law has to identify clearly that the concept of persona rights is inapplicable in this case unless such rights exist in that particular culture or unless individuals or group of individuals could be identified as the owner or custodian of the knowledge.

Under the proposed scheme of communal rights, indigenous and local communities are entitled to claim legal rights over TK and bio-resources. However, the issues related to these rights (e.g. what is a community considered to be a rightful owner, who represents the community that can exert the rights, how the benefits will be shared among the parties involved, and so on) have to be elucidated under the law in order to avoid potential conflicts within the communities.

B. Communal rights and the sovereign right of State

The proposed idea of communal rights, it is argued, seems to provide a strategic concept that contrasts to the State ownership principle which has been applied for centuries. In fact, the sovereign right of State over natural resources and the proposed communal rights not only are congruent but also have a relation in mutual support. While it is a duty of the State to promote the indigenous and local communities and their members’ ability to achieve a life of freedom and well-being, the communities also have an obligation to exert effort to achieve the sustainable development goals.

For centuries, most nations have applied the rule of State ownership over the management of land and other natural resources. This government policy has led to the accelerated loss of TK, resources and biological diversity. To ensure the survival of traditional cultures and natural resources, the State has to recognise and implement a group-rights model that will produce the greatest good for society in resource management and conservation.

The community-based resource management scheme such as Joint Forest Management adopted in many Asian countries is a concept of developing partnerships between fringe resource user groups (e.g. indigenous and local communities) and the State agency (e.g. forest department) on the basis of mutual trust and jointly defined roles and responsibilities with regard to resource protection and development. Since the natural resources cannot be determined in isolation from local people, the community should be permitted to manage the resources and share the cost with the government equally. The effective and meaningful involvement of local communities in evolving sustainable resource management systems is now being looked upon as a significant approach to address the longstanding problems of deforestation and biodiversity loss in many countries.²⁸

While the communal rights over natural and biological resources are recognised, the line between the rights of the State and those of the local community is to be drawn. In the case of TK, the proposed community rights may not be applicable to biological resources whose value is still unknown and which are contained in publicly-owned land (i.e. land that is not private or community-based). Since those resources are generally in a natural state and not held collectively by the community, they may be deemed as property belonging to the State in which they are found. In this case, the principle of the sovereign rights of State applies.

In many cases, the owner of TK does not want a monopoly, but just wants to be sure that nobody else can claim monopoly over the knowledge. One way to protect informal knowledge from biopiracy is to make the information fall into the public domain by publishing the details of the knowledge. The defensive publication of TK will make the knowledge prior art and become unpatentable in the source country and elsewhere.

This kind of documentation system not only helps maintenance and preservation of TK, but also enables patent examiners to check for prior art in the form of native knowledge as the knowledge has been compiled in an easily accessible form. The database system would also facilitate equitable benefit sharing, improvement of the use and quality of TK, etc.

Developing countries are well advised to set up a TK database system so that the recognition of such traditional and indigenous knowledge would be enhanced. However, there are still some questions regarding whether the database system should be laid open to the public, how the use of such databases could be supervised, how the benefits derived from application of the databases would be shared, and what legal rights for the protection of databases should be conferred. All these important questions are left for each country to solve according to its national priorities and preferences.

The use of TK in a sustainable manner could be enhanced by encouraging State and individuals seeking access to the knowledge to contract with one another. The contractual approach is significant in view of the fact that a possible law protecting TK may provide a strong framework for legal protection, but may not elaborate specific mechanisms related to compensation, royalties, technology transfer, etc.

Contracts of the type known as material transfer agreements (MTAs), could be used to complement the protection of TK. MTAs are defined by Barton and Siebeck as thus:

“MTAs are contractual agreements concluded between two or more parties. As contracts they enjoy the protection of the law in many nations: failure to perform what is promised is a breach of contract which gives one party the right to bring action against the other party, such as suing for damages. Unlike patents or copyrights, MTAs do not reset upon codified legal statutes defining specific rights and obligations. Instead, reflecting freedom of contract, parties to MTA have wide discretion in setting the terms of their agreement and tailoring them to their specific needs.”²⁹

Thailand Law Journal 2009 Spring Issue 1 Volume 12

A. Communal or individual rights?

B. Communal rights and the sovereign right of State