Traditional Knowledge and Indigenous Resources Standards for Intellectual Property Protection

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Thailand Law Journal 2009 Spring Issue 1 Volume 12

Currently, there are many international frameworks which have 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), andthe 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:

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.
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 UDHR may be broken down into four questions:

Does the protection cover only copyright and not cover patent?
Is the protection only for individual and not include a group?
Do they protect both traditional knowledge and indigenous resources? and
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

36. For more information see Peter Drahos, above n 62 of Part I, 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, III, Resolutions, UN Doc.A/810,71.). See also Stoll and Hahn, above n 25, 17. See also Universal Declaration of Human 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.

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.