The Existences of International Law in The Establishment of Indonesian National Regulation on The Protection of Traditional Knowledge

Abstract

Introduction to The Problem: The debate about whether the protection of traditional knowledge governed by international law has led developing countries, such as Indonesia, to have the potential for traditional knowledge to feel disadvantaged. Purpose/Objective Study: This paper intends to discuss the existence of international law in the formation of Indonesian national regulations concerning the protection of traditional knowledge. Design/Methodology/Approach: This research designed as doctrinal legal research. The data used in this study are secondary data which analyzed qualitatively Findings: From the results of research and discussion it is known that stipulation of regulations related to the protection of traditional knowledge in Indonesia needs to be accompanied by efforts to encourage the acceptance of national interests in international agreements, both through increasing TRIP agreements and the ASEAN framework. Also, it must be ensured that all binding international legal instruments related to traditional knowledge will truly benefit especially the community of traditional knowledge owners in Indonesia.

Protection of Indigenous Legal Rights towards Traditional Knowledge Used by Foreign Parties According to International Law Perspective

“…Attention to the legal protection of indigenous peoples' rights to traditional knowledge has led to the establishment of several international legal instruments that recognize and protect the rights of indigenous peoples to enjoy their cultural heritage, including traditional knowledge. [11] Indigenous peoples themselves have repeatedly claimed that they have a fundamental right to traditional knowledge because it is needed for the survival of their culture, and this principle is increasingly recognized in international law. [3] International law, at least, has governed this issue in three international legal regimes, namely as follows:…”

“…Utilization of traditional knowledge is economically beneficial for the industry, but on the other hand, it is detrimental to the interests of local communities and host countries. [8] The rights of indigenous peoples are a matter that has been ruled out for the economic interests of industrial players, [11] as in the case above. Erstling argues that "... that communities should have the right to use of their own Traditional Knowledge pursuant to their own customs and policies."…”

“…[13] These issues are currently under discussion at the Intergovernmental Committee of the World Intellectual Property Organization (WIPO) which is considering agreements that protect traditional knowledge of indigenous peoples, traditional cultural expressions, and genetic resources. [2] Moving on from these discussions then resulted in several important international agreements related to the legal protection of indigenous peoples' rights to traditional knowledge, [11] particularly on instruments that move from the realm of human rights law to international environmental law.…”

The Exploitation of Indigenous Communities by Commercial Actors: Traditional Knowledge and Traditional Cultural Expression

“…Besides the importance and impact of such grey legal areas, Indonesia, to date, has not had any specific national regulation related to the protection of traditional knowledge (Bangun, 2019). Even though Indonesia has ratified Nagoya Protocol and regulates the distribution of results and access to utilization of traditional knowledge in Article 26 of Act No.…”

“…This makes Indonesia the best context to conduct research that can highlight the critical issue and gaps in the legal landscape. Consequently, there is a need to make a regulation that explicitly regulates traditional knowledge (Bangun, 2019) (Lubis & Siahaan, 2016). Instead of providing benefits for Indonesia, the laws and regulations related to such IPR are considered more favorable to developed states' positions (Kurnilasari et al, 2018).…”