OF LAWS ON TRADITIONAL KNOWLEDGE
SOUTH EAST ASIA
Disini, HLS LLM ‘04
protection of traditional knowledge in
the countries comprising Southeast Asia is
typically drawn from existing intellectual property laws in each
jurisdiction. No country has passed a comprehensive law
covering either traditional knowledge, traditional cultural expressions
(folklore), or genetic resources while others are considering
that address these issues separately. The
immediate focus of policy-makers is the protection of indigenous
resources against “biopiracy” where foreign entities –
typically pharmaceutical companies – are awarded patents for inventions
from genetic sequences sourced from local plants and animals.
Hence, the protection of traditional
knowledge and traditional cultural expressions will likely take a back
the more pressing issue of genetic resource management.
importantly, there are no cooperative efforts among these nations
common membership in the Association of Southeast Asian Nations (ASEAN). Instead, a majority of the countries namely, Indonesia,
are actively participating in the World Intellectual Property
initiatives in this space. It is therefore
likely that the outcome of the WIPO activities will set the pace of
development as well as its content with whatever model law acting as
template for national legislation on traditional knowledge.
the meantime, however, the treatment of traditional knowledge in
is as diverse as the cultures found in the region.
Cambodia, intellectual property legislation is a fairly
new phenomenon. By the middle of 2001, copyright, patent and trademark
were still being considered by the National Assembly. All the draft
formulated with the assistance of WIPO with the primary goal of
complying with TRIPs.
surprisingly, none of these draft laws explicitly mentions folklore.
has laws on intellectual property (copyright, patent and trademark), it has no law on traditional knowledge with
the exception of the Plant Varieties Protection Regulation of 1997 which has some impact on genetic resources
and related traditional knowledge.
has reported to WIPO the absence of any specific legal protection for
traditional knowledge but some protection of TK may be available
copyright, distinctive signs (including geographical indications) and
secret law. It was reported in the
media, however, that Law No 19/2002 on Copyrights clearly stipulates
state protects traditional works
and an unofficial version of the law (http://www.geocities.com/Athens/Ithaca/1955/copyact.html)
reveals that Article 10 vests in the State the copyright to, among
remains, historical and other national cultural objects, stories,
tales, epics, songs, handicrafts, choreography, and dances. A recent report from the Indonesian National
News Agency indicated that the government is now making an inventory of
Indonesian folklore and traditional knowledge to prevent them from
patented by others.
response to a
TK survey conducted by WIPO, Malaysia
(please see Malaysian
Response) indicated that there is no specific law for the
protection of TK.
This view is shared by a Malaysian IP scholar and professor.
The dearth of regulation has raised calls for patent protection for
medicines to avoid losing traditional knowledge to Western nations.
the so-called biopiracy by western
Minister Mahatir Mohammad has asserted
sovereignty to justify the imposition of conditions for foreign access
Malaysian biological resources and knowledge.
Such conditions involve benefit-sharing and transfer of
is considering a draft Access and Benefit Sharing Law
as well as a draft Plant Variety Legislation, 1999.
latter proposal has been questioned on the ground that it ignores
knowledge exemplified by basmati rice which was developed by farmers
centuries. Under the new law, if a foreign
company were to develop a new strain, it would have exclusive rights to
strain and compete against the farmers neglecting the latter’s
the development of the rice itself.
Protection of Wild Life and Wild Plants and Conservation of Natural
has been identified as a law which may have an impact on traditional
knowledge. This is difficult to confirm
given the absence of an available copy of the same.
exists substantial protection TK under existing laws in the Philippines. The Indigenous Peoples’ Rights Act, of 1997
and its regulations, protect indigenous communities’ rights in general,
including their rights in traditional knowledge, to limit the access of
researchers into their ancestral domains/lands or territories, to be
as sources of information in whatever writings and publications
research, and to receive royalties from the income derived from any of
researches conducted and resulting publications. Executive
Order 247 issued in 1995 regulates the prospecting of biological
genetic resources. Such activities may
be done within the ancestral lands and domains of indigenous cultural
communities only with the prior informed consent of such communities;
in accordance with the customary laws of the concerned community. The Philippine
Senate is considering a bill entitled “An Act Providing For The
Establishment Of A System Of Community Intellectual Rights Protection”.
has reported to WIPO (Singapore
Response) that there is no legal protection for TK and doubts were
expressed even if such protection were possible under intellectual
statutes. The government, however, is in
the process of issuing Proposed Policy Guidelines on access to
affords no protection for TK under existing laws. A
top government official on intellectual
for the protection of traditional cultural expressions; the
establishment of a
database to identify and acknowledge TK; and a benefit-sharing scheme
use of TK. The official also called for
greater international cooperation in
this regard. A recent incident, however, raised concerns about the
existing IP laws to adequately protect TK as well as its users. In 2002, the Sanphol
Co Ltd, and the Thai Gems and Jewellery
Association filed a patent application for the traditional method of
stones. The filing worried traditional gem-burners because the
not engaged in gem-burning and were therefore ineligible for the patent. Worse, the traditional gem-burners would
become potential infringers of the patent, if granted.
Eventually, a committee was formed to find a
mutually satisfactory solution.
reported that some legal protection is afforded to TK under the “Act on
Protection and Promotion of Traditional Thai Medicinal Knowledge, B.E.
2542” which provides sui
generis protection for traditional
medicine-related knowledge. Furthermore, the Thai government is drafting
a Community Forest Act,
WIPO Survey Response (Vietnam), it was reported that there are very few
legislative efforts in the area of genetic resources and almost none in
of traditional knowledge. The view was
expressed that existing IP laws extend some form of protection to TK. Geographical indications protect traditional
knowledge to some extent as in the case of “Phu
Quoc”, a fish soya
“Shan Tuyet Moc
Chau”, a variety of tea.
Patent protection also exists for a traditional preparation of
plants used in assistance in stopping drug-addiction while a trademark
registered for a traditional balm made of medicinal plants (“Truong
(November 5, 2002):
ON THE REVIEW OF EXISTING INTELLECTUAL PROPERTY PROTECTION OF
(May 6, 2002):
EXISTING INTELLECTUAL PROPERTY PROTECTION OF TRADITIONAL KNOWLEDGE
Indonesia, Philippines, Singapore, Thailand, Cambodia
of Law, Biodiversity
and the Protection of Traditional Knowledge, Spring 2003.
knowledge of biodiversity in Asia-Pacific (Problems of Piracy &
Presentation by Australia,
Developments In Relation To Traditional Knowledge And Folklore, Intellectual
Property Rights Experts' Group I
10-11 Mar 2003, Christchurch, New Zealand.