Christoph Antons

Asian Borderlands and the Legal Protection of Traditional Knowledge and Traditional Cultural Expressions

Traditional knowledge related to biodiversity, agriculture, medicine and artistic expressions has recently attracted much interest amongst policy makers, legal academics and social scientists. Several United Nations organizations, such as the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity under the United Nations Environmental Programme (UNEP), have been working on international models for the protection of such knowledge held by local and indigenous communities. Relevant national, regional or provincial level legislation comes in the form of intellectual property laws and laws related to health, heritage or environmental protection. In practice, however, it has proven difficult to agree on definitions of the subject matter, to delineate local communities and territories holding the knowledge, and to clearly identify the subjects and beneficiaries of the protection. In fact, claims to ‘cultural property’ and heritage have led to conflicts and tensions between communities, regions and nations. This paper will use Southeast Asian examples and case studies to show the importance of concepts such as Zomia, ‘regions of refuge’ and mandala as well as ‘borderlands’ studies to avoid essentialized notions of communities and cultures in order to develop a nuanced understanding of the difficulties for national and international lawmaking in this field. It will also develop a few suggestions on how conflicts and tensions could be avoided or ameliorated.

Geographies of Knowledge: Cultural Diffusion and the Regulation of Heritage and Traditional Knowledge/Cultural Expressions in Southeast Asia

Although always concerned with cultural products in the form of literature, visual arts, inventions and symbols for marketing purposes, intellectual property initially did not problematise the concept of culture. It was regarded as more or less universal and not as regionally or locally specific. The early international agreements were concluded largely by European nations that indeed had similar values and practices when it came to rewarding creative endeavours in the fields of arts, science and engineering. Tunisia, then a French protectorate, was the only non-European country among the initial signatory states of the Berne Convention. The only non-European country among the initial signatories of the Paris Convention was Brazil. Of course, there were differences between the United Kingdom and Continental European nations about the importance of moral rights vis-a-vis economic rights, but these were differences about the scope of copyright protection, not about the subject matter of protection as such. Few independent countries from outside Europe joined the international IP system prior to World War II. The really significant expansion of the system occurred with the decolonisation process after the end of the war and again in a most recent wave following the conclusion of the WTO TRIPS Agreement. However, as more and more newly independent countries began to join the international IP system after the end of World War II, it soon became clear that they brought with them different forms of knowledge and of artistic expressions that European derived intellectual property systems found difficult to accommodate.The clearest expression of this different environment has been with regard to the debate about the use of intellectual property principles to protect what has become known as traditional knowledge and traditional cultural expressions. This article will give a brief overview of this debate and show its inter-dependence with broader notions of cultural heritage protection, as developed in various UNESCO conventions. The mixture of cultural and intellectual property is often a powerful, yet dubious basis for claims. The article will then move on to examine a specific problem for legal regulation of this subject matter, namely the diffusion of cultural material through migration movements and the expansion of nation states. It will show how the national borders and geographical maps of current nation states that define the limits of national law and regulation are different from cultural realms. These differences will be explained using examples from Southeast Asia. Historians have used historical maps and sources to show that the emphasis on the precise delineation of borders arrived with Western style geography and cartography and with colonial powers eager to exploit natural resources and to know exactly on which side of the border such resources were situated. The resulting fixation of relatively fluid borders often cut through the realms of cultural minorities that had traditionally paid little attention to national boundaries. The fact that their cultures continued to be practised on both sides of a border was of little significance for tangible expressions of culture that were either here or there. However, with increasing emphasis on intangible cultural material in national laws inspired by UNESCO conventions for heritage protection and in WIPO discussions about traditional knowledge and traditional cultural expressions, conflicting claims are now becoming more frequent.

An Overview of Free Trade Agreements in the Asia-Pacific Region with a Particular Focus on Intellectual Property

This chapter provides an overview of Free Trade Agreements (FTAs) in the Asia-Pacific region. It examines the multiple interpretations of the ‘Asia-Pacific’ and asks about the usefulness of this concept as a focus of comparison. It explains the political and economic background of concluded agreements, the negotiations in progress and the formation of regional clusters of FTAs, and also shows the enormous differences in IP content in the various agreements. With the exception of Japan, Asia-Pacific countries appear as relatively reluctant converts to higher IP standards. Even the industrialized economies of the region that had to increase their IP standards after agreements with the US, EU or Japan do not necessarily impose the same standards on regional neighbours. Instead, ‘soft diplomacy’ in IP matters is important to countries in the region, as is new subject matter for intellectual property protection such as traditional knowledge and traditional cultural expressions.

Introduction: IP and the Asia-Pacific ‘Spaghetti Bowl’ of Free Trade Agreements

The contributions to this book show the strategies and policies of countries in the Asia-Pacific region that have to grapple with international standard setting in what has been called the ‘spaghetti bowl’ of criss-crossing free trade agreements. The chapters show how intellectual property is just one among many political and economic factors that are used in trade off discussions. It leads to an often considerable further raising of IP standards in those countries that agree to higher protection levels, often for reasons that have little to do with the provision of incentives for technological progress. A more nuanced picture of IP protection in Asia shows the different interests of high protection countries, ‘first’ and ‘second tier’ newly industrialized and industrializing countries and the rather peculiar position of Australia and New Zealand. The chapter introduces the contributions to this volume according to these various groups of countries and of international law and the political economy of the region.

Geographical Indications, Heritage, and Decentralization Policies: The Case of Indonesia

Over the years, enthusiasts of geographical indication (GI) protection have often asserted its benefits for developing countries. It has been said that GIs can assist with the promotion of rural and regional development; support the emerging creative industries; help to protect traditional cultural expressions; ensure that the exploitation of traditional knowledge would recognize sacred beliefs and practices of traditional peoples; safeguard cultural heritage; promote environmentally sustainable

Article 27(3)(b) TRIPS and Plant Variety Protection in Developing Countries

In comparison with industrialised countries, agriculture in developing countries accounts for a substantial share of GDP and involves a substantial sector of small-holders and traditional agriculturalists. In view of these differences, the biotechnology clause of Article 27.3.b TRIPS with its requirement of plant variety protection either by patents or an effective sui generis system or a combination of the two has been controversial. However, developing countries have made surprisingly little use of the freedom to design their own systems in this field. Instead, there has been a surge in UPOV membership among developing countries and some have gone as far as introducing patent protection for plant varieties. Such countries now have to consider the same exclusions and exceptions to patenting that are normally discussed in countries with much more advanced biotechnology industries. The chapter examines the scope for the use of orde public considerations under Article 27.2 TRIPS, of exceptions for research and experimental purposes under Article 30 TRIPS, compulsory licensing under Article 31 TRIPS as well as the advantages of a specific breeding exemption and it briefly comments on the various sui generis options. While liberal interpretations of the TRIPS exceptions remain possible, the chapter concludes that the majority of developing countries will be better off in more creatively using the freedom to develop sui generis systems suitable for their local conditions rather than struggling to introduce TRIPS conform ‘limited exceptions’ to patent protection for plant varieties.