A Brief Summary of  the 2001 Round Table Discussion

  THE USE OF INDIGENOUS, LOCAL AND TRADITIONAL PEOPLE’S CONCEPTS IN 

 THE DEVELOPMENT OF SOCIO-CULTURAL SOCIETY

(April 30^th, 2001, Ruang Sidang Guru Besar, University of Padjadjaran

 

·     The terms used in the IK context in Indonesia tend to mixture one another. Amongst them are knowledge of the traditional society, local knowledge, and knowledge of original society. At least, there should be a common term that applies when social value of the society is still respected and practiced (Johan FISIP UNPAD)

·     The use of the term should be reviewed from the result created by the related society: In architectural point of views, vernacular  - meaning, architectural buildings created by the local  without any helps of modern architectures (according to Prof. Dr. Primadi Tabrani, Department of Architecture ITB).

·     The proper term of IK is essential as the initial step to establish a platform for IK protection. IK is in fact an invaluable asset to Indonesia. It is covered in a newly issued regime - the so called “geographical indication” , in terms of Intellectual property rights (IPR).

Efforts to protect IK in Indonesia contained in the amendment of UUD 1945, administering the regulation about the rights of the traditional society. In addition, the office of the state ministry of environment (KMNLH) recognized the importance of ‘traditional wisdom’. So the forum of RTD (round table discussion) is expected to propose a recommendation, containing efforts of IK protection (reflected in the Amendment UUD 1945 and the KLMNH’s policy – according to Prof. Tanwir Y.Mukawi (Faculty of Medicine, UNPAD) and Miranda Risang Ayu (Faculty of Law, UNPAD),

·     To avoid ambiguity in the use of certain terms of IK, a firm consideration for Indonesian’s IK should be established, either one for traditional knowledge or for local knowledge. It is related to the term of ‘indigenous’ such as the aborigines - indigenous people of  Australia, the Indians of the USA, the Inuit's of Canada, to refer a few. Indigenous people is called so due to the fact that they are the only original people living  in a certain region before any invasions or colonization by the newcomers. They then become groups of people who live under the domination of the newcomers. Considering the fact, whether it is correct to define the terminology of indigenous for application in Indonesia? (Rizky Adiwilaga – Art Department, FSRD ITB).

Protection on IK becomes even more important when groups of caring people on traditional society have been indicating that some ethnics groups inherit and and practice invaluable assets related to IPR, for instance, the method of traditional cure therapy. The method is carried out using ethnic plants found in the surrounding vicinity of the traditional society. This society is even able of finding and developing the curative effect of the plants to heal some dangerous diseases such as cancer that has been used by the ethnic of Dayak. Such a finding attract foreign scientist’ to ‘plunder’ the respective plants to their countries and develop them to a more astonishing new discovery: a kind of commercial medicines. The discovery is declared as their own patent, so they have the intellectual property rights and have any rights of royalties, while the Dayaks, the real inventor of the knowledge, have nothing.

1.        A similar case found also in Madagaskar. One of ethnic plants, the so called vinca rosea or rose periwinkle  is effective to cure various kinds of cancers. Then a pharmaceutical factory developed it to vincristine and vinblstine.  So it held the patent's right and benefits of their purchases, but nothings are in return to the people of Madagaskar. A question arises, what kind of IPR’s protection could justify the case? It is difficult to answer, since there is no such a regulation about it in the regime of IPR.  So a further question might come to the surface,  what kind IPR’s protection could be employed?  It is also problematic, because the regime has no special regulation upon it yet.  Even if it is protected,  still there are problems to determine, who has the proper right of patent and royalty since the respective IK is not owned alone by any individuals or any ethnic groups but the whole group of traditional societies who inherited the knowledge over generations (Achmad Gusman, FH UNPAD).

 

2.       It is important to establish a protection right for the traditional people based on the fact that their marginal position in the Indonesian society, though their rights has been recognized, regulated, and protected in various numbers of state regulations. Those regulations are related to biodiversity, position of the traditional society, and IPR’s protection. It is then expected that that the government must have a strong political will to make it right as well as  a justified application on commercial mechanism for the society, unless there is no development and protection (KEHATI).

 

3.       In the context of IPR’s protection of the traditional people it is required to define an understanding about the perception of the respective indigenous society, The definition should be in accordance with the level of social-cultural development of the Indonesian society that amongst other reflects the attitude of the societies to the concept of IPR’s protection over their own invented IK/technology.   The effort should be actualize through an effective net work between governmental offices, tertiary education, and NGOs.

 

4.       A strong political will to protect IPR of the traditional society is a necessity,  Recent development indicates that Indonesia has a huge prospect on it. The existing commercialization is ironically utilized and enjoyed by foreign hands where no proportional return of royalties is contributed to Indonesia.  The government should determine a commercial mechanism in IPR’s rights of the traditional people in order to revise the damage.

 

5.       In relation to it, the following efforts should be employed:

a.        Visualizing the potency of IK of the the traditional people in Indonesia using database

b.        Formulation of the time frame  to determine the level of originality of a high potential IK of the traditional societies.

c.        Identification of the owner of the IKs such as the use of ethnics plants for medicines

d.        Clarification of geographical indication of the IKs, since no mechanism upon it is available.

e.        Accessibility of biodiversity should be implemented

f.        Taking exercises the experiences of other countries over IK’s problems, for instance, the experiences of the Maori of New Zealand.

 

Conclusion and Rekomendation

1.   The IPR concept in Indonesia has not accommodated the protection over IK yet, An asymptote point between IPR and IK does exist obviously, but there are a lot of inconsistencies too. Hence, a certain mechanism should be specifically developed in order to protect IK from foreign exploration and exploitation, for intance, through a ‘sui generis’ regulation.

2.   In addition to law protection over IK, a kind of social protection should also be considered. In this case, the respective local/traditional societies should determine their own security mechanism to guard the secret of their developed IK, so the particular IK will be saved from any in official foreign exploration and exploitation. The kind of protection need to be backed up by the governmental jurispridiction. It is more like a moral obligation of the government to protect its cultural assets. In addition though, the government has the authority to claim sanctions to any foreign  actions that exploration and exploit IK unlawfully, at least, by of fencing access mechanism and benefit sharing.

3.   In efforts of law protection against any IK usages, the needs of the local/traditional societies should also entertain to keep maintain their cultural survivals. So, an effective consultative mechanism amongst the government, the respective traditional/local societies, academics, NGOs and other related institutions, should be continuously carried out  to finally yield a certain law mechanism in terms of traditional IK that is suitable with the social values and social-cultural development of the societies.

4.   A further Roundtable Discussion that focuses on policy making concerned with aw protection for IK is desired. Such a discussion, so far has been facilitated by  a number of institutions - including INRIK and BPPT, would produce an operative regulation on IK in Indonesia. The discussion conducted so far in 2^nd roundtable discussion has been indicating a timelines actualization of IK protection. An inter-departmental coordination on IK affairs should be hence established.

 

 

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