Determination of ownership/ stewardship over TKaGRs

In terms of both theory and practice, recognition of ownership/ stewardship over TKaGRs is considered a complex issue since TKaGRs, as a distinctive intangible asset, encompasses unique features for which the protection should not be based on conventional legal regimes. As analyzed in Chapter 2, the accordance of ownership/ stewardship over TK by conventional legal instruments, such as the IP system, was criticized as a symbolic recognition because the holders hardly meet formal requirements set out by the system³¹¹; or in a different argument, it is seen as an attempt to fit TK into the shape of available but incompatible frameworks.³¹² Chapter 4 showed practice in Vietnam where ownership/

stewardship over TKaGRs is not legally guaranteed, but relied heavily on practical factors, such as cultures, history, etc. Part 6.2.2.2 of Chapter 6 also proved the malfunction of the registration system established on the IP basis. This fact puts TKaGRs holders under the risk of loss of control over their knowledge.

Following experiences from TK-rich countries, a sui generis system to suit unique characteristics of TK would be a policy option, of which TK register is an effective instrument. The register system serves diversified purposes depending on policies of each country, but primarily it functions as a mechanism to identify TK holders and recognize ownership/ stewardship over TK. The recognition of ownership/ stewardship over TK under the system should be in line with the characteristics of TK as well as associated cultural and customary factors, and should be operated upon the will of TK holders.

Depending on national policies or the desires and initiatives of TK holders, the register system may be established and operated under the management of the central and/or local governments (like the model of Peru), or in the initiative of holders with the involvement of NGOs (like the model of the Honey Bee Network - India). It should be noted that, each

311 Drahos, supra note 20 at 10.

312 United Nations University , supra note 121, at 33.

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model serves different purposes and functions in different contexts, as analyzed in Chapter 3. In any case, legal safeguards by explicit legal provisions should be the most crucial point to bring long-term effect to the system, rather than rely on interim measures as a response to the lack of formal recognition, as seen in the case of the Honey Bee Network³¹³.

However, given the fact that TKaGRs and the status of ownership/ stewardship thereof exists objectively for a long history and has been recognized by cultures, customary rules of localities, the TKaGRs registration system or any other supportive measures would not be compulsory to accord rights to TKaGRs holders, but rather plays a role as an evidence of TKaGRs ownership (similar to the model of copyright registration) and creates the information channel to invite or facilitate access of potential users.

6.4.3. ABS mechanism

Identification of TKaGRs holders

As analyzed, TKaGRs register functions as a supportive measure to recognize ownership/ stewardship over TKaGRs, thereby facilitating identification of TKaGRs holders and significantly supporting access of potential users.

It is articulated in Chapter 2, from the theoretical point of view, and in Chapter 4, from the practical point of view, that TKaGRs is presumably collective in nature. Even if custodied by individuals, it is considered to be linked to a specific community and to be bound by the traditional context embedded in that community. Therefore, with regard to the TKaGRs holder as an individual or a family, while recognizing their individual rights over TKaGRs, the link of such TKaGRs with the communities of origin should also be acknowledged to consider benefit sharing if ABS concerning such TKaGRs takes place.

In respect of the TKaGRs holder as a community, a legal mechanism should be established for a traditional institution or otherwise a collectively established entity to represent the whole community in every legal relation arising in the ABS context. In the author’s opinion, the mechanism to establish community representation in the Land Law

313 See the Honey Bee Network, Part 3.3.1.

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and Law on Forest Protection and Development (that should be adjusted to fit unique nature of TKaGRs) would be a good reference so as for a representing entity to act on the behalf of the whole community, while still ensuring participation of the community in the whole ABS process. However, such a mechanism should be specifically placed in the ABS context rather than generally be applied as in the current system.

Access related matters

Regarding the way to locate information of TKaGRs and its holder as the base for access, the TKaGRs registration system, once again, would be useful to provide potential users with information on TKaGRs, TKaGRs holders and access conditions. In this respect, TK register established on local initiatives as seen in Peru (Local Registers of Collective Knowledge of Indigenous Peoples) is a good reference to ensure full control of local communities over their knowledge, as well as to facilitate incorporating and empowering customary rules and community protocols in the use and share of knowledge. Following such experiences, the extent to which information compiled in the register is disclosed is totally based upon the desire of TKaGRs holders.

In terms of TKaGRs holders’ involvement in this process, practical evidence shows that although access to TKaGRs often takes place on the basis of the holders’ voluntariness and the holders themselves are always in the position to grant PIC, there is still a lack of arrangements for guaranteeing TKaGRs holders’ rights. Obviously, full participation and self-determination of TKaGRs holders could not be safeguarded in the situation of power imbalance, lack of legal certainty, lack of holders’ awareness on TKaGRs value, intransparency of intended utilization of TKaGRs and potential adverse impacts of access, etc., as described in the part of practical analysis. In finding the solution for this issue, ABS models with the active involvement of local authorities, as the case of South Africa, France, India, Kenya, and Malaysia, are worthily looked at. The participation of competent authorities is expected to enhance transparency, ensure the legality and rectify power imbalance during the process.

Benefit sharing

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As TKaGRs’s added value to R&D activities varies case by case, from industry to industry, the mechanism of benefit sharing is suggested to be contextually flexible, instead of setting a parameter which hardly accommodates diverse natures of TKaGRs users. It reflects the approach adopted by India. Besides, given the fact that the pre-stages of product commercialization, such as screening, trial experiments, etc., may fail or succeed, or produce unexpected outcomes³¹⁴, benefit sharing should be triggered and maintained on the basis of commercialization of TKaGRs derived products, as is the case with Brazil and Malaysia. Like the access stage, transparency and full participation of TKaGRs holders in this stage is essentially a fundamental requirement to ensure that benefits would be shared in good faith and that TKaGRs is still under the control of its holders. Customary laws or community protocols may also be a basis to share benefits in accordance with the desires of TKaGRs holders.

Furthermore, practices show that TKaGRs may be custodied by individuals, groups or families but, in fact, is almost sourced from community. Similarly, the CBD’s approach to TKaGRs related issues is based on the presumption of the collective nature of TKaGRs.

Therefore, following experiences of Brazil and Malaysia, aside from sharing benefits to TKaGRs holders as individuals, families, a part of the benefit is suggested to accrue to the community under the form of the community welfare fund.

Roles of competent state bodies

Although there have been no legal provisions thus far stipulating roles and authorities of competent state bodies in ABS processes, local authorities of some localities in fact still actively engage in the process in the roles of supervising, coordinating and supporting involved parties. On that account, such involvements of local authorities in practice would be a basis to determine their roles and authorities in the ABS regulatory framework, specifically, they may assume the responsibilities for managing and operating the TKaGRs local registration system; consulting, supervising and coordinating to ensure transparency and legality of the ABS process. Regarding central state bodies, although their

314 Interview with Dr. Bui Van Thanh, supra note 184.

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engagement in ABS related to TKaGRs has not been observed thus far, they should take crucial roles in managing national TKaGRs registration system (for the defensive protection of disclosed TKaGRs as discussed), ABS register and reporting, the linkage between TKaGRs database systems and patent offices nationally and internationally, etc., as shown in international experiences.

6.4.4. Empowerment of customary rules and community protocols

The recognition of customary laws and community protocols is a contributing factor to ensure ABS mechanism to be operated in conformity with Nagoya Protocol, as the Protocol calls for Parties to consider the roles of customary laws and community protocols in national regulatory framework on ABS³¹⁵ and take measures to support indigenous peoples and local communities to establish community protocols in ABS context.³¹⁶

It is acknowledged from this dissertation that, although customary laws function effectively in governing internal affairs within their traditional territory, they fail to solve problems arising with external actors. In Vietnam, the State acknowledges the multi-ethnic nature of the nation and, to a certain extent, recognizes the legal force of customary rules of ethnic groups and local communities. However, such recognition is limited to very few circumstances arising within internal affairs of communities.

There is a growing number of countries that adopted sui generis systems that adapt to unique natures of TKaGRs. However, it is acknowledged that, there is no unique frame accommodating diversified natures of customary rules. The question lies in how to incorporate customary rules into the national legal framework. The voice from indigenous peoples may serve as a suggestion:

“Indigenous peoples possess their own locally-specific system of jurisprudence with respect to the classification of different types of knowledge, proper procedures for acquiring and sharing knowledge, and the rights and responsibilities which attach to

315 Article 12.1 of the Nagoya Protocol.

316 Article 12.5 of the Nagoya Protocol.