Perception Gap between Developed Countries and Developing Countries for The Protection of Traditional Knowledge

1. Perception Gap between Developed Countries and Developing Countries for The Protection of Traditional Knowledge

Issues of TK protection and TK associated with GRs emerge different perception between developed countries and developing countries. Developed countries basically need TK protection based on the existing system which is through protection mechanism of intellectual property right. On the contrary, developing countries wish that TK needs to be protected using a mechanism which better guarantees and is proper.

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(1) Developed Countries Perception United States argues that TK and TK associated with GRs need to be protected

by the existing intellectual property right protection system. According to United States, protection system of intellectual property right can be used or adapted to solve certain issues concerning TK, including economy and non-economy. To protect TK, exception that applies under the existing system will also apply for TK associated with GRs. For instance, certain expressions of TK will fulfill the requirement of copyright protection. Exception and limitation that are provided in Copyright Act will apply. Some provisions in intellectual property right law can

be adapted to address specific issues and concern of indigenous people and local community, even according to United States, principles and doctrines of intellectual property may also be integrated using indigenous right approach. 53)

European community has similar response to that of United States saying that branches of intellectual property right law can have a role in either direct or indirect protection without reducing existing protection under intellectual property right. TK associated with GRs has to be protected against any forms of misappropriation that consists of acquisition, stealing or utilization of TK associated with GRs in an unfair or illegal ways. European community has preferences for non-binding legal outcome, which is sui generis, and other non-binding preferences. European community stresses that TK protection must be consistent with existing protection system of intellectual property right and other international agreements. Thus, it can be said that European community supports the establishment of sui generis and other non-binding preferences, yet final decision of TK protection must be given to individual contracting party. European community also stresses that TK is creation under public domain so that European community questions the definition of TK and the goal that is expected to be achieved. Therefore, European community suggests that public domain concept also need to be well discussed. 54)

Japan also states their concern of the expansion of intellectual property right

53) WIPO/GRTKF/IC/11/5(a) Document, p. 46 54) Ibid. p. 52

protection for TK. Japan believes that there are no clear or justified reasons why TK fulfills the requirement of intellectual property right. According to Japan, GRs-based TK can meet the requirement to be protected by patent right if the protection gives incentive for the next creation that will lead to industrial development and if TK is guaranteed by proper intellectual property right protection. If TK is protected by intellectual property right protection, it must be in the context of its protection, and the validation is only for limited period of time in order to keep the balance between the holder of the right and public interest. Japan sees that If TK is protected under intellectual property right without term of time, there will only be certain generation that is able to feel the benefit of TK that has long been inherited. On the other side, Japan also considers that it is improper to grant lifetime intellectual property right because it will be unfair to limit the scope of public domain.

(2) Developing Countries Perception Another perception arises from developing countries. Brazil, for example, argues

that providing protection for TK must be implemented using defensive protection, positive protection, PIC and Benefit Sharing. The protection must also be done through international dimension. Brazil's defensive protection is aimed at restricting the misuse of TK, particularly to prevent the granting of intellectual property right without authority from TK holder. For example, through disclosure requirement in patent system, when an applicant proposes patent application, the applicant must inform the source of the invention in the application, especially if the invention is associated with GRs. Furthermore, applicant must have proof of obedience to PIC and Benefit Sharing. Besides defensive protection, according to Brazil, positive protection will also protect TK through sui generis system. PIC and Benefit Sharing are meant to ensure that people can have and use their right of TK with PIC provision as requirement for third party that wishes to utilizeGRs and/or associated with TK and also to ensure fair and proper Benefit Sharing. International dimension will provide protection whenever ways and infrastructure

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to facilitate the enforcement of national acts on TK protection are available. 55)

TK protection through intellectual protection right protection is seen by South Africa improper because there is limitation in the right to privately monopoly. South Africa argues that TK as part of people cultural heritage inherited from generation to generation should not be privatized or exploited communally for individual interest. Therefore, South Africa states that the first TK beneficiary must be community that is directly connected to the knowledge accessed and protected. 56) South Africa also supports idea stating that TK should be protected without time term limitation. It is obvious that TK protection is to maintain the sustainability and developing of TK. It requires protection for social, economic, cultural, and spiritual context of TK. Those are things that cannot be reached within limited time period. South Africa also establishes an instrument that can protect holistically, inseparably, collectively and more widely than merely the protection of economy benefit. 57)

Another argument comes from another developing country that is Tunisia. Tunisia argues that TK cannot be protected only by single legal system through intellectual property right protection because the ownership is communal and is considered vague. Intellectual property regime itself does not recognize collective right and knowledge that is inherited from generation to generation. Tunisia argues that protection regime that does not prevent sharing and transmission model of TK is needed. 58) For Tunisia, TK protection on national level is essential. 59)