Debate on traditional knowledge continues

by Desy Nurhayati on 2014-03-13

The debate is ongoing between developing and developed nations to make an international legally binding instrument to protect traditional knowledge and cultural expression.

During a two-day consultative meeting of the Intergovernmental Committee (IGC) hosted by Indonesia, the two sides expressed divergent views on the best ways forward to protect traditional knowledge and cultural expression, with the major powers still reluctant to have a legally binding instrument.

“Reluctance from major powers to have a legally binding instrument has remained a problem since the negotiation process started in 2009,” Abdul Kadir Jailani, the Foreign Ministry’s director for economic, social and cultural treaties, said Wednesday on the sidelines of the meeting.

“But we, the like-minded countries [developing countries], continue to push for it until they [developed countries] eventually agree, with further discussion on the terms and conditions,” he continued.

He said there were still many cross-cutting issues in the negotiations, including the definition and limitations of traditional knowledge and cultural expression.

“Like-minded countries want a broad-range aspect of protection, while the advanced nations want it to be narrower and limited,” he told Bali Daily.

However, there has been a growing consensus among all parties that all traditional knowledge and cultural expressions should be protected, but with different levels of treatment and protection.

There was also debate concerning the beneficiaries — namely indigenous people and local communities — that had yet to be resolved.

All the issues and differences could be solved if both parties had managed to categorize their traditional knowledge and cultural expressions and how to protect them, Kadir said.

The IGC is targeting an agreed text that would later be proposed in the upcoming 27th session in Geneva at the end of this month for further negotiation.

The IGC will later push the World Intellectual Property Organization (WIPO) to approve a diplomatic conference where the process toward creating the legal instrument would be enhanced.

“The current consultative meeting gives us a crucial opportunity to recalibrate and refocus the negotiations on the text for traditional knowledge and traditional cultural expression,” said Wiwiek Setyawati Firman, the ministry’s director general for legal affairs and international treaties, who opened the consultative meeting.

At this point, Indonesia has been playing a crucial role in bridging the different views between the like-minded countries and the developed countries.

“The different standpoints have affected the work of the IGC. On one hand, major countries want an instrument that is merely declarative, but on the other hand, developing nations are urging a legally binding instrument,” Kadir said.

The IGC has since 2009 been working on developing an international legal instrument that would give traditional knowledge and cultural expressions effective protection.

Because the existing international intellectual property system does not fully protect traditional knowledge and cultural expressions, many communities and governments have called for an international legal instrument.

Such an instrument would define what is meant by traditional knowledge and traditional cultural expressions, who the rights holders would be, how competing claims by communities would be resolved, and what rights and exceptions ought to apply.

However, working out the details is complex and there are divergent views on the best ways forward.

Kadir further explained that recognizing traditional forms of creativity and innovation as protectable intellectual property would be a historic shift in international law, as it would enable indigenous and local communities, as well as governments, to have a say over the use of their traditional knowledge by others.

This would make it possible, for example, to protect traditional remedies and indigenous art forms against misappropriation, and enable communities to control and benefit collectively from their commercial exploitation, he stated.

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