Thailand Law Journal 2010 Spring Issue 1 Volume 13

The world's trend for protection is widely accepted. Experts, such as Peter Drahos states in his report to UNCTAD-Commonwealth Secretariat that:

Over the last ten years or so more and more international organizations and policy networks have done work on protection of traditional knowledge (T -K). One of the issues that has been increasingly raised is whether there should be a treaty on traditional knowledge. What such a treaty would contain and who would or would not support it are questions to which there are no very detailed answers. To some extent they are unanswerable until an international organization begins the process of standard-setting.³³

For several reasons, the protection of traditional knowledge can be for social, legal, cultural, political or economic reasons including:

• to support the maintenance and integrity of indigenous people's cultures
• to protect the pluri-cultural nature of global society
• to maintain the body of global knowledge necessary for the design andimplementation of sustainable development strategies
• to secure the human rights of indigenous and local communities over the irintellectual property
• to prevent illegal use and theft of traditional knowledge
• to ensure equity and justice
• to support poverty alleviation and economic development.³⁴

The protection could be done either by positive or defensive protections.³⁵ it is a crucial matter to indigenous peoples and local communities in all countries particularly in developing and less developed countries. The protection will reduce the gap between developed and developing countries. While the developed countries are fully equipped in both capitals and technologies, the developing countries are rich in resources. The appropriate system for equitable sharing of benefits needs to be searched for their mutual agreements.

Currently, there are many international frameworks which nave worked on the protection of traditional knowledge. The World Intellectual Property Organization (WIPO), World Trade Organization (WTO), the Conference of the Parties (COP) to the United Nations Convention on Biological Diversity (CBD), Permanent Forum on the Commission of Human Rights, the United Nations Conference on Trade and Development (UNCTAD), Food and Agriculture Organization (FAO)³⁶ and numerous of private institutions, have all addressed the issue.

Human Rights standards are one system that has come out of those frameworks. The following topic will address the significant human rights instruments regarding traditional knowledge and indigenous resources protection.

VI HUMAN RIGHTS STANDARDS FOR' THE PROTECTION OF INTELLECTUAL PROPERTY

Human Rights standards in general contexts are minimum standards recognised internationally to be the right of personal liberty and the right to equality before the law. Both rights are now recognised as fundamental human rights.³⁷ Human Rights standards have been recognised through the United Nations Organization (UN) and several relevant international instruments.

This paper will examine the selected human rights instruments concerning protection of intellectual property, such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social And Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the International Labour Organization (ILO), and the United Nations Declaration on the Rights of Indigenous Peoples.

A The Universal Declaration of Human Rights (UDHR)
Article 27, the most relevant part of The Universal Declaration of Human Rights for intellectual property protection states:
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.³⁸

Article 27(2) of UDHRR may be broken down into four questions:
1) Does the protection cover only copyright and not cover patent?
2) Is the protection only for individual and not include a group?
3) Do they protect both traditional knowledge and indigenous resources? and
4) Does the meaning of protection refer to the existence of intellectual property laws?

Commenting on Article 27(2), experts such as Peter-Tobias Stoll and Anja von Hahn say that:

On the first reading, the reference to the 'author" may indicate that only copyright protection covered. However, protection through patent law, for example, is not explicitly excluded. While this view finds support in the traveaux preparatoires of ...UDHR, the right is clearly tied to an individual author or inventor and can not be held by a group....This leads to the conclusion that existing intellectual property laws, which ensure a certain protection based on international standards and national laws, safeguard the standard set forth in Art. 27(2). In the light of the above, indigenous resources and indigenous knowledge do not find protection by Art. 27(2) ... Further, collective rights of indigenous and local communities are excluded from the human rights standard on intellectual property, ...³⁹

The comments above, however, overlook the following points:
1) Article 27(2) refers to the word author, and has been applied to copyright protection.⁴⁰ In fact, it also includes patent. Article 27(2) mentions 'the protection of the moral and material interests resulting from any scientific, literary or artistic production', thus, the protection of material resulting from scientific production could be any tangible thing that may be patentable. Interpretation theory for an international instrument not only looks at the meaning of word but also the whole context of the article and its preamble.⁴¹ Therefore, the meaning of author in this sentence is not limited only to author in the concept of copyright, but can be applied to patent as well. The material resulting from scientific production can be patented it is compatible with the regime of intellectual property laws. In this case, Peter-Tobias Sell and Anja von Hahn, also accept this issue by using the word 'author or inventor'.
2) Article 27(2) refers to individual rights, but Article 27(1) mentions 'the right to participate in culture life of the community'. In some cases, there is an inextricable link between individual and community rights. In fact, this Article is not meant to protect community or group rights. As this Article protects individual rights, there is no reason to refuse the protection of group or community rights as well.
3) Even though, the words traditional knowledge and indigenous resources are not explicitly mentioned in Article 27(2), it does not mean that protection could not be made. The meaning of the whole context is to protect traditional knowledge and indigenous resources.
4) The protection in this Article leads to the conclusion that existing intellectual property laws provide adequate protection for traditional knowledge and indigenous resources if a broader definition is understood. The wording 'everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author' means the protection of intellectual property.⁴²

33. Peter Drahos, above n 62 of Part I, 6.

34. Merle Alexander, K Chamundeeswari, Alphonse Kambu, Manuel Ruiz and Brendan Tobin, 'The Role of Register and Databases in the Protection of Traditional Knowledge: A comparative Analysis' (UNU-IAS Report, United Nations University, 2004) 11.

35. The positive protection included: (1) Recognition of value and promotion of respect for traditional knowledge systems, (2) Responsiveness to the actual needs of holders of traditional knowledge, (3) Repression of misappropriation of traditional knowledge and other unfair and inequitable uses, (4) Protection of tradition-based creativity and Innovation, (5) Support of traditional knowledge systems and empowerment of traditional knowledge holders, (6) Promotion of equitable benefit-sharing from use of traditional knowledge, (7) Promotion of the use of traditional knowledge for a bottom-up approach to development. The main focus of defensive protection measures has been the patent system. Defensive protection aims at ensuring that existing traditional knowledge is not patented by third parties ideally, by ensuring that relevant traditional knowledge is taken fully into account when a patent is examined for its novelty and inventiveness. The defensive protection of traditional knowledge has two aspects: (1) a legal aspect: how to ensure that the criteria defining relevant prior art applies to the traditional knowledge, for example, this could mean ensuring that orally disclosed information must be taken into account (since many Important bodies of traditional knowledge are normally transmitted and disseminated by oral means), (2) a practical aspect: how to ensure that the traditional knowledge is actually available to search authorities and patent examiners, and Is readily accessible. For example, this can ensure that it is indexed or classified, so that it is likely to be found in a search for relevant prior art. See Worid Intellectual Property Organization (WIPO), above n 15 of Part I, 16, 26-7.

36. For more information see Peter Drahos, above n 62 of Part 1, 10-7.

37. Rhona K.M. Smith, Text Book on International Human Rights (Second Edition, 2005) 10.

38. P.R. Ghandhi, Blackstone's International Human Rights Documents (4th Edition) 25. (The Universal Declaration of Human Rights (UDHR) of 10 December 1948, General Assembly Official Record, lll, Resolutions, UN Doc.A/810,71.). See also Stoll and Hahn, above n 25, 17. See also Universal Declaration ^f H.man Rights (UDHR), Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948, available at <http://www.un.org/Overview/rights.html> at 26 January 2007.

39. Stoll and Hahn, above n 25 of Part I, 18.

40. Stoll and Hahn, above n 25 of Part I, 18. Because the term 'author' is used in copyright law and the use of 'scientific, literary or artistic' works or productions are also terms commonly used in copy law.

41. In applying the customary rules of interpretation of public international law, each provision of the Convention, Declaration or Agreement shall be read in the light of its objectives and principles. For more detail see the 1969 Vienna Convention on the Law of Treaties, Interpretation of Treaties, Article 31-33.

42. Compare with the 1886 Berne Convention for the Protection of Literary and Artistic Wohks. For more details please read Sam Ricketson and Megan Richardson, Intellectual Property: Cases, Materials and Commentary (Third edition, 2005) 1.3, 9.42. See also Wikipedia, the free encyclopedia (2007) < http://en.wikipedia.org/wiki/ Paris_Convention for the_Protection of Industrial_Property> at 27 January 2007.