Protection & Promotion of Traditional Knowledge of Marginalised Communities: A Legal Perspective

Abstract

Marginalised rural communities, particularly in tropical countries such as those within Southeast Asia, are often aware of the use of indigenous herbs and agricultural products but concomitantly oblivious as to the means of protection and promotion of using their traditional knowledge. It is estimated that around 1,500 plant species have been widely used for traditional medicines in Southeast Asia. The paper will commence with a discussion of the meaning of “traditional knowledge”, adopting a utilitarian perspective. The paper focuses on the countries of Southeast Asia and provides a legal analysis of the protection of traditional knowledge provided under international treaties, namely: Agreement on Trade-related Aspects of International Property Rights (TRIPS); International Convention for the Protection of New Varieties of Plants (UPOV), International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA); and the Convention on Biological Diversity (CBD). To date, the World Intellectual Property Organization (WIPO) has been unable to agree on the contents of an international legal instrument relating to intellectual property rights over genetic resources, traditional knowledge, and traditional culture. The legislative responses of the 11 nations of Southeast Asia are analysed. Much of the focus of international treaties is on protecting plant breeders’ rights over farmers’ rights, and this imbalance should be addressed. Governments should be proactive and amend their patent legislation to require patent applicants to declare their use of indigenous resources and knowledge. Examples of the development and promotion of traditional knowledge are briefly described.