Traditional knowledge and intellectual property rights ...

Draft of chapter published in Christoph Antons (ed.) Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region, Alphen aan den Rijn, Kluwer Law International, 2009, pp. 39-65

Chapter 2 Traditional knowledge, traditional cultural expressions and intellectual property rights: Approaches in the Asia Pacific region Christoph Antons

I. The development of the traditional knowledge debate as reflected in international conventions The debate about traditional knowledge is conducted by a very diverse group of protagonists. Involved are intellectual property lawyers, environmental law experts, government representatives and representatives of Non-Government Organizations (NGOs), geographers, biologists, anthropologists, sociologists, political scientists, experts in public health administration and in agricultural development, archaeologists, artists and local and indigenous communities. Depending on whom one listens to, one gets a very different impression of the scope and content of terms such as ‘tradition’ and ‘knowledge’. The most wide ranging definitions of traditional knowledge use holistic concepts of knowledge and knowledge transmission and they encompass everything from artistic, literary and oral cultural expressions to signs and symbols to traditional medicines, plants, agricultural knowledge and knowledge about biodiversity and the environment. It is, therefore, useful to briefly review the origins of the debate and the different stages of the development of the terminology. This development has been initiated, pushed forward, but sometimes also held back by formal and informal movements of UN organizations and sub-organizations, NGOs and informal indigenous peoples’ movements and by the governments of nation states with economic interests in particular aspects of the traditional knowledge debate. The formation of the United Nations in 1945, the emphasis on universal human rights in its charter, and the postWorld War II decolonization movement provide the pre-condition and the departure point for the subsequent developments.1 This was followed by development programs for South American Indians in the Andean Indian Program initiated by a number of UN organizations in 19522 and by International Labor Organization (ILO) Convention concerning the Protection and Integration of Indigenous, and other Tribal and Semi-

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K.S. Coates, A Global History of Indigenous Peoples (Houndmills, Basingstoke-New York, Palgrave Macmillan, 2004), pp. 231–37. 2 J. Chernela, ‘The Rights of Indigenous Peoples: International Instruments’ (11 November 2003) avail on the website of the American Anthropological Association at , 20 December 2007.

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tribal Populations in Independent Countries (Convention No. 107) in 1957.3 ILO Convention No. 107 recognised ‘the right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy…’.4 Two important international documents, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were opened for signature in 1966 and finally came into force in 1976.5 Coinciding with these developments at the formal international level was an informal movement of indigenous groups and communities from all over the world aiming at greater cooperation across borders, which was later given the term ‘indigenism’.6 Awareness among indigenous movements of common problems and aims had started in the 1960s.7 Cooperation and mutual visits intensified in the early 1970s and was followed by international conferences and the establishment of the World Council of Indigenous Peoples in 1975.8 The World Council achieved formal representation in 1982 with the formation of the UN Working Group on Indigenous Populations within the UN Economic and Social Council. Importantly, the UN framework meant a widening of the debate from the issue of indigenous people in settler states to selfdetermination and recognition of marginalized minorities more generally. From the mid-1980s, the founders of the international movement of indigenous people were joined by ethnic communities from Asia and Africa. Minorities from the Philippines, Bangladesh, Japan, India, Burma and Thailand began to attend meetings of the Working Group between 1984 and 1987. Many of these groups came from countries in which the term ‘indigenous’ was contested, leading to confusion in the terminology and tensions in various official UN meetings and working groups, a situation which continues to this day.9 The anthropologist Jeffrey Sissons criticizes the attempts of the 3

International Labor Organization (ILO), Convention concerning the Protection and Integration of Indigenous, and other Tribal and Semi-tribal Populations in Independent Countries (ILO Convention No. 107 of 1957), opened for signature 26 June 1957, entered into force 2 June 1959, 328 UNTS 247. 4 Coates, n. 1 above, p. 236. 5 International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, entered into force 3 January 1976, 993 UNTS 3. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, entered into force 23 March 1976, 999 UNTS 171. For the various dates see the chronology in P. Havemann, ‘Chronology Two: TwentiethCentury Public International Law and Indigenous Peoples’ in Indigenous Peoples Rights in Australia, Canada and New Zealand, P. Havemann (ed.) (Auckland, Oxford University Press, 1999), pp. 19–20. 6 R. Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (BerkeleyLos Angeles-London, University of California Press, 2003). 7 An early indication from the Scandinavian Sami minority of this growing international consciousness is an article in the journal Samefolket (The Sami People) of 1963 entitled ‘The Sami are the Indians of Sweden’: H. Minde, ‘The Challenge of Indigenism: The Struggle for Sami Land Rights and Self-Government in Norway 1960-1990’ in Peoples: Resource Management and Global Rights, S. Jentoft, H. Minde and R. Nilsen (eds) (Delft, Eburon Academic Publishers, 2003), p. 79. 8 J. Sissons, First Peoples: Indigenous Cultures and Their Futures (London, Reaktion Books, 2005), pp. 21–22; Coates, n. 1 above, p. 244. 9 Sissons, n. 8 above, pp. 22–23; C. Antons, ‘Traditional Knowledge and Intellectual Property Rights in Australia and Southeast Asia’ in New Frontiers of Intellectual Property Law: IP and Cultural Heritage, Geographical Indications, Enforcement and Overprotection, C. Heath and A. Kamperman Sanders (eds) (Oxford and Portland, Oregon, Hart Publishing, 2005), pp. 38, 50; C. Antons, ‘Traditional Knowledge, Biological Resources and Intellectual Property Rights in Asia: The Example of the Philippines’ (2007) 34(3) Forum of International Development Studies, 1 at 5–6; C. Antons, ‘Traditional Cultural Expressions and Their Significance for Development in a Digital Environment: Examples from Australia and Southeast Asia’ in Intellectual Property and Traditional Cultural Expressions: Legal Protection in a Digital Environment, C. Graber and M. Burri-Nenova (eds)

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UN Working Group on Indigenous Populations to stretch the meaning of the term ‘indigenous’ to accord with its expanding membership and their development of what he terms ‘eco-indigenism’ with its ‘possibility for almost any people with a subsistence based culture to claim membership in international indigenous forums’.10 Equally, the historian Ken Coates has pointed out that ‘over time, the concepts of indigenous and aboriginal have become increasingly synonymous with powerlessness, marginality and social distress – approaches which are Eurocentric in origin and crisis based.’11 In parallel with these emancipation movements of indigenous and minority groups emerged a debate about ownership of their cultural expressions and heritage and knowledge more broadly. In the developing world, this initially took the form of a more general outrage within the mainstream population about unfair terms of trade and lack of technology transfer on the one hand and the misappropriation of what was often seen as ‘national’ heritage on the other hand. An early example was the use of Latin American folk music material by the US American folk/‛pop’ duo Simon and Garfunkel, when they recorded the song ‘El Condor Pasa’ for their 1970 bestselling album ‘Bridge Over Troubled Water’.12 The song was originally written by a Peruvian composer and based on a traditional Andean folk song. Significantly, however, it was the government of Bolivia rather than that of Peru or indigenous groups which raised these concerns. The misappropriation of music and other cultural expressions led to a debate in UNESCO and WIPO at the time and finally to the drafting of the Tunis Model Law on Copyright for Developing Countries of 1976 (Tunis Model Law), a joint initiative of WIPO and UNESCO13 which attempts to bring folklore under copyright protection and further ‘Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions’ in 1982.14. The Tunis Model Law and / or Model Provisions influenced a few copyright acts in developing countries, for example Indonesia’s Copyright Act of 1982.15 From cultural heritage as expressed in folklore and crafts, the debate further shifted to agriculture in particular and to the environment more broadly. The so-called ‘farmers’ privilege’ allowing farmers to save the seed of harvested material and to use it to grow a new crop and to exchange seeds freely for non-commercial purposes had been a cornerstone of the International Undertaking for the Protection of New Varieties of

(Cheltenham, Edward Elgar Publishing, forthcoming); C. Antons, ‘Traditional Knowledge in Asia: Global Agendas and Local Subjects’ in Pushing Against Globalization: A Local Perspective on Regulation in Asia, J. Gillespie and R. Peerenboom (eds) (London and New York, Routledge, forthcoming). 10 Sissons, n. 8 above, p. 17. 11 Coates, n. 1 above, p. 5. 12 M. Halewood, ‘Indigenous and Local Knowledge in International Law: A Preface to Sui Generis Intellectual Property Protection’ (1999) 44 McGill Law Journal, 953 at 967–968. 13 UNESCO/WIPO, Tunis Model Law on Copyright for Developing Countries 1976. 14 WIPO/UNESCO, Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions (1982). For a detailed discussion see International Bureau of WIPO, ‘The Protection of Expressions of Folklore: The Attempts at International Level’ (Geneva, WIPO, 1998), avail , 7 July 2008. 15 C. Antons, Intellectual Property Law in Indonesia (London, Kluwer Law International, 2000), pp. 84–90.

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Plants since its adoption in 196116 and of the body created by that convention, namely the International Union for the Protection of New Varieties of Plants (Union international pour la protection des obtentions végétales or UPOV). During discussions in the United Nations Food and Agriculture Organization (FAO) in the early 1980s, the much broader concept of ‘farmers’ rights’ was introduced. The concept was defined in two FAO resolutions of 1989 annexed to the 1983 International Undertaking on Plant Genetic Resources17 as: Rights arising from the past, present and future contribution of farmers in conserving, improving and making available Plant Genetic Resources, particularly those in the centres of origin/diversity. These rights are vested in the International Community, as trustees for present and future generations of farmers, for the purpose of ensuring full benefits of farmers and supporting the continuation of their contributions.18 At the end of the 1980s, the institutions, property, cultures, environment and customary law systems of indigenous people were again mentioned in the ILO International Convention concerning Indigenous and Tribal Peoples (Convention No. 169) of 1989.19 However, perhaps the most important international agreement to put traditional knowledge protection on the international agenda was the Convention on Biological Diversity (CBD) of 1992.20 The CBD brought the important shift from the understanding of plant genetic resources as the ‘heritage of mankind’, as freely accessible and exchangeable,21 to an understanding where nation states have ‘the sovereign right to exploit their own resources pursuant to their own environmental policies’22 and where ‘the authority to determine access to genetic resources rests with the national governments and is subject to national legislation’.23 Intellectual property rights are required to be ‘supportive of and not run counter to’ the objectives of the CBD.24 Resource providers should ‘endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses’.25 In return, technologically advanced users shall provide access to and transfer of technology relevant for or resulting from the sustainable use of genetic resources26 and participation in relevant research projects.27 Access to such resources shall be granted on ‘mutually agreed

Y. Ariffin, ‘Developmental and environmental policies: Past trends, present issues, future prospects’ in Regulating Globalization: Critical Approaches to Global Governance, P. de Senarclens and A. Kazancigil (eds) (Tokyo-New York, United Nations University Press, 2007), p. 218. 17 International Undertaking on Plant Genetic Resources, annex to FAO, Resolution 8/83, Twenty-second Session of the FAO Conference, Rome, 5–23 November 1983 (IUPGR). 18 FAO Resolutions 4/89 and 5/89, as cited in C.M. Correa, Options for the Implementation of Farmers Rights at the National Level. Trade-Related Agenda, Development and Equity (T.R.A.D.E.) Working Papers, No. 8, (Geneva, 2000), p. 4. 19 ILO International Convention concerning Indigenous and Tribal Peoples (Convention 169) of 1989, opened for signature 27 June 1989, entered into force 5 September 1991. 20 Convention on Biological Diversity (CBD), opened for signature 5 June 1992, entered into force 29 December 1993, 176 UNTS 79. 21 IUPGR, Art. 1. 22 CBD, Art. 3. 23 CBD, Art. 15(1). 24 CBD, Art. 16(5). 25 CBD, Art. 15(2). 26 CBD, Art. 15(6). 27 CBD, Art. 16. 16

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terms’28 and with ‘prior informed consent’.29 It shall lead to fair and equitable sharing of ‘the results of research and development and the benefits arising from the commercial and other utilization of genetic resources’.30 While the earlier International Undertaking on Plant Genetic Resources related only to plants for food and agriculture, the CBD extends also to plant material for medicinal and pharmaceutical purposes. The parties to the Convention are of course nation states, but the CBD foresees an important role for ‘indigenous and local communities’ and their knowledge systems. Article 8(j) of the CBD requires each party, subject to its national legislation, to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices. Parties to the Convention are, therefore, required to pass on the benefits and to replicate benefit sharing mechanisms at the local level. Apart from Article 8(j), ‘traditional cultural practices’ are further mentioned in Article 10(c) of the CBD, which requires parties ‘as far as possible and as appropriate’ to protect and encourage ‘customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements’. Finally, Article 18(4) provides that Contracting Parties shall, in accordance with national legislation and policies, encourage and develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies, in pursuance of the objectives of this Convention. The sovereign rights of states over their plant genetic resources were also recognized in the International Treaty on Plant Genetic Resources for Food and Agriculture (the PGR Treaty), which was concluded under the auspices of the FAO in 2001 and entered into force 29 June 2004.31 There are various direct and indirect references to the traditional knowledge of farmers. Article 5(c), for example, requires Contracting Parties to ‘promote or support, as appropriate, farmers and local communities’ efforts to manage and conserve on-farm their plant genetic resources for food and agriculture’. Article 5(d) requires them ‘to promote in situ conservation of wild crop relatives and wild plants for food production … by supporting, inter alia, the efforts 28

CBD, Art. 15(4). CBD, Art. 15(5). 30 CBD, Art. 15(6). 31 See International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), opened for signature 3 November 2001, entered into force 29 June 2004, Preamble and Art. 10.1: ‘In their relationships with other States, the Contracting Parties recognize the sovereign rights of States over their own plant genetic resources for food and agriculture, including that the authority to determine access to those resources rests with national governments and is subject to national legislation.’ 29

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of indigenous and local communities’. Of particular importance in this context is Part III on Farmers’ Rights. In Article 9.1, the Contracting Parties recognize the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centres of origin and crop diversity, have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world. According to Article 9.2, responsibility for realizing such rights rests with national governments. These should take measures to promote the ‘protection of traditional knowledge relevant to plant genetic resources for food and agriculture’,32 ‘the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture’,33 and ‘the right to participate in making decisions, at the national level, on matter related to the conservation and sustainable use of plant genetic resources for food and agriculture’.34 States need to take these measures, however, only ‘as appropriate’ and subject to national legislation. The traditional farmers’ privilege to save, use, exchange and sell farm-saved seed and propagating material is guaranteed in Article 9.3, but again ‘subject to national law and as appropriate’. The PGR Treaty sets up a multilateral system of access and benefit sharing, which covers essential food crops listed in an Annex to the Treaty. It promotes a standard Material Transfer Agreement (MTA) with certain mandatory provisions, including a prohibition of recipients of the material claiming intellectual property rights or other rights that limit the facilitated access to the plant genetic resources for food and agriculture, or their genetic parts or components, in the form received from the Multilateral System.35 It is clear from the wording, however, and from various declarations made upon ratification or approval (in particular by the European Community and its member countries) that this restriction does not affect plant genetic resources for food and agriculture or their genetic parts or components, which have undergone innovation and which have been modified.36 The PGR Treaty has further been criticized for the facultative character of most of its obligations, the absence of major plant patenting nations such as the US and Japan from the Treaty, and the omission from the annex of some vital crops which specific developing countries did not want to see included.37

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ITPGRFA, Art. 9.2(a). ITPGRFA, Art. 9.2(b). 34 ITPGRFA, Art. 9.2(c). 35 ITPGRFA, Art. 12.3(d). 36 See the various declarations on the FAO website at , 6 December 2006. See also M. Blakeney, ‘Bioprospecting and Biopiracy’ in Intellectual Property and Biological Resources, B. Ong (ed.) (Singapore, Marshall Cavendish Academic, 2004), p. 417. 37 See for the example of soybeans, objected to by China, and further examples G. Rose. ‘International Law of Sustainable Agriculture in the 21 st Century: The International Treaty on Plant Genetic Resources for Food and Agriculture’ (2003) XV(4) The Georgetown International Environmental Law Review, 583 at 616. 33

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In the field of traditional cultural expressions, the Convention for the Safeguarding of the Intangible Cultural Heritage was adopted in 2003 and entered into force in April 2006.38 The Convention defines ‘intangible cultural heritage’ as ‘the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups, and in some cases, individuals recognize as part of their cultural heritage’. Examples provided are oral traditions and expressions (including language as a vehicle of the intangible cultural heritage), performing arts, social practices, rituals and festive events, knowledge and practices concerning nature and the universe and traditional craftsmanship.39 ‘Safeguarding’ is defined as: measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage.40 The Convention expresses for the most part relatively vaguely worded obligations to ‘safeguard’ intangible cultural heritage. Perhaps the most concrete obligation for member states is to draw up, ‘in a manner geared to its own situation, one or more inventories of the intangible cultural heritage present in its territory’.41 There are further obligations regarding policies, institutional matters, research, legal, technical, administrative and financial measures, education, awareness-raising and capacity building, which member states shall ‘endeavour’ to implement.42 Acceptance of this Convention in East, Southeast and South Asia has been lukewarm. As of July 2008, only Bhutan, Cambodia, China, India, Mongolia, Pakistan the Philippines and Vietnam had ratified the Convention, while Indonesia, Japan, Korea and Sri Lanka had declared acceptance of the Convention, in Indonesia’s case with the exception of Article 26(1), which requires contributions from the state parties to an Intangible Cultural Heritage Fund.43 The latest development potentially impacting on this area is the adoption by the United Nations General Assembly of the Declaration on the Rights of Indigenous Peoples in September 2007. In its preamble, it is recognized that ‘respect for indigenous knowledge, cultures and traditional practices contribute to sustainable and equitable development and proper management of the environment’.44 Of the 46 articles of the Declaration, several are particularly relevant in this context. Article 11 guarantees a general right to practise and revitalize cultural traditions and customs, including present and future manifestations of culture, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing 38

Convention for the Safeguarding of the Intangible Cultural Heritage (Safeguarding Intangible Heritage Convention), adopted Paris, 17 October 2003, entered into force 20 April 2006. 39 Safeguarding Intangible Cultural Heritage Convention, Art. 2(2). 40 Safeguarding Intangible Cultural Heritage Convention, Art. 2(3). 41 Safeguarding Intangible Cultural Heritage Convention, Art. 12. 42 Safeguarding Intangible Cultural Heritage Convention, Arts 13 and 14. 43 For the list of membership, see UNESCO, Unesco.org>Culture>Intangible Cultural Heritage ICH>Official List of States Parties , 15 November 2007. 44 See the text of the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly 13 September 2007 (A/RES/621/295) :, 3 July 2008.

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arts and literature. Parties to the Declaration shall provide effective mechanisms for redress, including restitution, for cultural, intellectual, religious and spiritual property taken without free, prior and informed consent or in violation of indigenous peoples’ laws, traditions and customs. Article 24(1) seeks to guarantee indigenous peoples’ rights to traditional medicines and health practices, including conservation of their vital medicinal plants, animals and minerals. The most wide-ranging provision is Article 31(1) guaranteeing the right ‘to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts’ as well as the right ‘to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions’. While Article 31(2) and similar subsections in most of the other provisions requires states take ‘effective measures to recognize and protect the exercise of these rights’, the entire Declaration is a non-binding text. In addition, Article 46 made the adoption of the text more palatable for countries concerned about territorial integrity and human rights. It clarified that the declaration may not be interpreted or construed as authorizing or activities or acts contrary to the UN Charter or actions ‘which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states’.45 The rights spelled out in the Declaration are further limited by international human rights obligations and have to be interpreted ‘in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and human rights’.46 In spite of these reassurances, Australia, Canada, New Zealand and the United States for a variety of reasons voted against adoption of the Declaration. Australia objected to the references to self-determination in the text, while New Zealand regarded in particular four provisions as fundamentally incompatible with New Zealand’s constitutional and legal arrangements, the Treaty of Waitangi, and the principle of governing for the good of all its citizens.47 Many Pacific Island nations abstained or were absent during voting, while East, Southeast and South Asian nations (with the exception of Bangladesh and Bhutan) voted in favour. Finally, very important to the further developments at the international level is the work of WIPO and the ongoing deliberations in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The Committee began its work in 2001 after the publication of a comprehensive report on fact-finding missions conducted in 1998 and 1999.48 After extensive 45

UN Declaration on the Rights of Indigenous Peoples, Article 46(1). UN Declaration on the Rights of Indigenous Peoples, Article 46(2) and (3). 47 See the declarations of the Australian and New Zealand representatives, Robert Hill and Rosemary Banks in the background section contained in a media release accompanying the text: UN Department of Public Information (UN DPI), Media Division, ‘General Assembly Adopts Declaration on Rights of Indigenous Peoples: “Major Step Forward” in Human rights for All says President’, Media Release, 13 September 2007 , 3 July 2008, pp. 5–7. 48 World Intellectual Property Organization, Intellectual Property Needs and Expectations of Traditional Knowledge Holders – WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) (Geneva, World Intellectual Property Organization, 2001). 46

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debates, the Committee tabled at its latest meeting in February 2008 revised objectives and principles for traditional knowledge protection49 and the protection of traditional cultural expressions,50 respectively, as well as a list of options for its further work on genetic resources51 and on the international dimension of the Committee’s work.52 While the discussions on traditional knowledge have focused on the concept of misappropriation and five specific aspects of that concept,53 the document on traditional cultural expressions identifies three optional levels to prevent misappropriation ranging from registration of expressions ‘of particular cultural or spiritual value or significance’ via third party use regulations for expressions of lesser significance to protection against unauthorized disclosure, use and acquisition of intellectual property rights to secret expressions.54 Current discussions of options related to genetic resources focus among other issues on disclosure requirements to prevent patenting of traditional knowledge, the interaction between patent disclosure and benefit-sharing frameworks and recommendations/guidelines for search and examination procedures for patent applications.55 II. Property discourses and the revival of customary law While the discussion about the misappropriation of the various forms of traditional knowledge thus goes back to the early 1970s, clearly it strongly intensified in the early 1990s, in particular after the adoption of the Convention on Biological Diversity. As was pointed out earlier, the Convention became a landmark in the shift from perceiving genetic resources as common heritage of mankind to a position where the national governments and the nation state become their owners. This coincided with a more general shift towards privatization and private property on the basis of neo-liberal policies, which were much en vogue after the failure and breakdown of the socialist command systems of Eastern Europe and which have been setting the agenda in much of the developed and developing world since then. In legal theory, stronger proprietarian positions became fashionable in areas such as environmental law, which had formerly been regarded as the domain of public law and administrative regulation.56 Sustainable development as a policy goal and the related precautionary principle stating that if faced with threats of serious or irreversible damage, ‘lack of full scientific certainty shall not be used as reason for postponing cost-effective measures to prevent environmental degradation’ were important aspects of the 1992 UN Rio Declaration with its so-called ‘Agenda 21’.57 More recently, this has led to a revival of customary law as an experienced solution for environmental risk assessment and as a more effective replacement of the former ‘top-down’ with 49

WIPO/GRTKF.IC/12/5(c) of 6 December 2007. WIPO/GRTKF/IC/12/4(c) of 6 December 2007. 51 WIPO/GRTKF/IC/12/8(a) of 7 December 2007. 52 WIPO/GRTKF/IC/12/6 of 6 December 2007. 53 WIPO, GRTKF/IC/12/5(c), pp. 7–8. 54 WIPO, GRTKF/IC/11/4(c), pp. 7–8. 55 WIPO, GRTKF/IC/12/8(a), pp. 2–3. 56 For a critique of this development, see P. Newell, ‘The marketization of global environmental governance: Manifestations and implementations’ in The Crisis of Global Environmental Governance: Towards a New Political Economy of Sustainability, J. Park, K. Conca and M. Finger (eds) (London and New York, Routledge, 2008) (‘The Crisis of Global Environmental Governance’), pp. 84–86; H. Acselrad, ‘Between Market and Justice: The Socio-ecological Challenge’ in The Crisis of Global Environmental Governance. 57 P. Ørebech, F. Bosselman, J. Bjarup, D. Callies, M. Chanock and H. Petersen, The Role of Customary Law in Sustainable Development (Cambridge, Cambridge University Press, 2005), p. 389. 50

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‘bottom-up’ systems.58 Property theory has moved in similar directions, finding similarities in the debate about the environmental commons and the commons in cyberspace and suggesting a closer examination of the usefulness of ‘limited common property’, property which works exclusive towards outsiders, but treats resources as commons for insiders.59 Again, customary law is seen as providing many different forms of property than the simple dichotomy between public and private law, to which lawyers in industrialized countries have become accustomed. Legal anthropologists agree that Western notions of property rights are insufficient to capture the many nuances in forms of property in legally pluralist settings.60 It seems indeed that a stronger recognition of customary law principles could be very helpful in resolving some of the issues surrounding traditional knowledge. The big question is, however, how to integrate them into the state legal system and how to foster a healthy relationship between principles drawn from state law and customary law respectively. In this regard, common law systems with their inherent flexibility and their openness towards custom seem to pose fewer difficulties than civil law systems with their rigid categories of statutory regulation. Useful examples of partial integration come from Australia with the frequently cited cases of Foster and Others v. Mountford and Rigby Ltd61 and John Bulun Bulun & Anor v. R & T Textiles Pty. Ltd.62 In both cases, the courts used the flexible doctrines of the law of equity to reach satisfying solutions, which partially recognized customary principles. In Foster v. Mountford, the Supreme Court of the Northern Territory granted an injunction to representatives of the Pitjantjatjara speaking communities to prevent the sale and distribution in the Northern Territory of ‘Nomads of the Australian Desert’ by anthropologist Charles Pearcy Mountford, because the court came to the conclusion that it revealed details of secret and sacred ceremonies. While satisfying the claim of the plaintiff at the time, however, the injunction’s geographical reach was limited to Pitjantjatjara communities in the Northern Territory, whereas Muirhead J pointed out that the Pitjantjatjara lands extended into the north-west of South Australia and to a central portion of West Australia. In view of this and of the fact that the research for the book had taken place some 35 years earlier involving different members of the communities, the judge circumvented the question of standing to sue in order to grant the injunction. He also declined to discuss public interest considerations in favour of the publication within the limited scope of an injunction.63 In Bulun Bulun v. R & T Textiles, Aborigines from the Ganalbingu people in Eastern Arnhem land were able to claim another partial success. The court was not prepared to recognize Aboriginal customary law concepts, which linked intellectual property to native title in land. However, the court opened a back door to customary law by declaring that the individual copyright of an Aboriginal artist could be impressed with a fiduciary 58

Ibid., pp. 395, 438–439. C.M. Rose, ‘The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems’ (1998) 83 Minnesota Law Review, 129–182. 60 M.G. Wiber, The Voracious Appetites of Public versus Private Property: A View of Intellectual Property and Biodiversity from Legal Pluralism (CAPRi Working Paper No. 40) (Washington D.C., 2005); M.F. Brown, Who Owns Native Culture (Cambridge, Massachusetts, and London, Harvard University Press, 2003). 61 14 ALR 71. 62 1082 FCA (1998). 63 For a detailed discussion of this case, see C. Antons, ‘Foster v Mountford: Cultural Confidentiality in a Changing Australia’ in Landmarks in Australian Intellectual Property, A. Kenyon, M. Richardson and S. Ricketson (eds) (Cambridge: Cambridge University Press, forthcoming). 59

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obligation to use community symbols of a secret and sacred nature in an appropriate way and in accordance with custom.64 However, even in the flexible environment of a common law jurisdiction, the integration of customary law is not always easy. One only has to think of the problems with the rule against hearsay in evidence, which Australian courts for a long time circumvented to avoid the paradox that evidence about customary law from Aboriginal elders could be excluded as mere hearsay, whereas evidence of anthropologist expert witnesses would be acceptable based on its scientific nature.65 In a developing country context, governments often pay lip service to the importance of customary law for the national legal development and identity. In practice, however, customary law is often distrusted as fostering particularistic, tribalist and perhaps even separatist tendencies, and viewed as outdated and old-fashioned and not in tune with the new ‘modern’ nation state.66 As the following examples from Asian developing countries demonstrate, in most settings customary law is made subject to the overriding imperatives of national development policies. Apart from this subsidiary role, legal and social anthropologists understand law as process67 and are conscious of the constant shaping and reshaping of customary rules by various political actors at the local, national and international level.68 Charles Zerner has termed the discussions on culture, biological diversity and sustainable development as ‘an agenda, as it were, in search of a local subject’.69 He found that sasi, a family of customary regulations used in the Moluccan islands for resource allocation, is used by local activists and NGOs as a discursive weapon, which relies on both transnational images of resistance as well as on strategic representations of local tradition.70 Martin Chanock places some hope in institutional arrangements combining ‘new custom’ and contract, but points also to the radical divergence of interests among resource users, which make compromises and conflict resolution more difficult to achieve.71 These C. Antons, ‘Folklore Protection in Australia: Who is Expert in Aboriginal Tradition?’ in Experts in Science and Society, E. Kurz-Milcke and G. Gigerenzer (eds) (New York, Kluwer Academic/Plenum Publishers, 2004), pp. 90–91. 65 Ibid., pp. 92–98. In Foster v. Mountford (1977) 29 FLR 233, an anthropologist expert witness and an employee of the Aboriginal Legal Service were heard to confirm the affidavit of the Chairman of the Pitjantjatjara Council, see C. Antons, ‘Foster v Mountford’, n. 63 above. In De Rose v. South Australia [2002] FCA 1342, the Federal Court gave preference to Aboriginal witnesses, but found that customary practices no longer conformed to an essentialised notion of tribal life drawn from early ethnographic texts: see L. Strelein, Compromised Jurisprudence: Native title cases since Mabo, (Canberra, Aboriginal Studies Press, 2006), pp. 95–97. See also G. Edmond, ‘Thick Decisions: Expertise, Advocacy and Reasonableness in the Federal Court of Australia’ (2004) 74(3) Oceania, 190. ‛[M]ost of the leading native title and heritage protection judgments devote considerably more space to the evidence of anthropologists, historians and archaeologists than the evidence of Aborigines’: at 220. 66 Antons (2000), n. 15 above, p. 27. 67 S.F. Moore, Law as Process: An Anthropological Approach (London-Henley-Boston, Routledge and Kegan Paul, 1978). 68 M. Chanock, ‘Customary Law, Sustainable Development and the Failing State’ in Ørebech et al., The Role of Customary Law in Sustainable Development, P. Ørebech et. al. (Cambridge, Cambridge University Press, 2005), pp. 338-383; F. and K. von Benda-Beckmann, ‘Between Global Forces and Local Politics: Decentralisation and Reorganisation of Village Government in Indonesia’ in Globalisation and Resistance: Law Reform in Asia Since the Crisis, C. Antons and V. Gessner (eds) (Oxford and Portland, Oregon, Hart Publishing, 2007); C. Zerner, ‘Through a Green Lens: The Construction of Customary Environmental Law and Community in Indonesia’s Maluku Islands’ (1994) 28(5) Law & Society Review, 1079–1122. 69 Zerner, n. 68 above, 1116. 70 Ibid. 71 Chanock (2005), n. 68 above, pp. 378–379. 64

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radically divergent interests require an examination into the various forms of traditional knowledge in their political and economic context and into their relationship with the respective beneficiaries of potential forms of legal protection or regulation. III. The various forms of traditional knowledge and their beneficiaries Thus far, the international debate sketched in the first part of this chapter has not yet generated a consensus on the terminology or on a definition of traditional knowledge. Holistic concepts of indigenous people have been the focus of human rights groups and of the influential 1993 ‘Study on the Protection of Cultural and Intellectual Property of Indigenous Peoples’ prepared by Erica Irene Daes, Special Rapporteur for the UN Subcommission on the Prevention of Discrimination of Minorities. However, in international fora such as the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, holistic concepts have often clashed with the more limited interests of nation states regarding particular forms of traditional knowledge. In many relatively young Asian nation states, the notion of ‘indigenous people’ is equally contested. As Kingsbury has pointed out, colonial policies have shaped the understanding of ethnicity, particularly in Asia.72 In Dutch colonial Indonesia for example, the population was classified into various groups with different roles and different degrees of access to law and the colonial economy. The term ‘inlander’ (‘native’) was used for all colonial subjects who were not of European or so-called ‘vreemde oosterlingen’ (‘foreign oriental’) (mainly Chinese, Indian and Arab) descent. After independence, inlander was understood on the one hand to be an offensive and discriminatory term applied to the indigenous Indonesian population based on the racial hierarchy from the colonial period73 while on the other hand the state attempted to reverse but for that matter also adopted and perpetuated the colonial racial classification for many decades by trying to empower ‘indigenous Indonesians’ (orang Indonesia asli) as opposed to Indonesians of foreign descent, such as those of Chinese extraction.74 Over time, ‘indigenous’ has become largely equated with ‘national’ and indigenous knowledge is knowledge held by Indonesian nationals, which may be exploited by the national government in the national interest. In debates in international fora, both India and Indonesia have persistently explained their different understandings of the meaning of ‘indigenous’. The representatives of both countries expressed important qualifications during the recent adoption of the B. Kingsbury, ‘The Applicability of the International Legal Concept of “Indigenous Peoples” in Asia’ in The East Asian Challenge for Human Rights, J.R. Bauer and D.A. Bell (eds) (Cambridge, Cambridge University Press, 1999). 73 Justus van der Kroef, writing in the early 1950s, pointed to contemporary English dictionary definitions of the term ‘native’ as ‘especially one belonging to a non-European and imperfectly civilized or savage race’ and as ‘non-Caucasian peoples of inferior civilization’, see J.M. van der Kroef, ‘The Term Indonesia: Its Origin and Usage’ (1951) 71(3) Journal of the American Oriental Society, 169. 74 C. Antons, ‘Ethnicity, Law and Development in Southeast Asia’ in Reading Asia: New Research in Asian Studies, F. Hüsken and D. van der Meij (eds) (Richmond, Surrey, Curzon, 2001). In 2006, the Indonesian government enacted a new citizenship law as well as a new Law for the administration of the population to end the discriminating distinction between ‘indigenous Indonesians’ and Indonesians of foreign descent, see Law No. 12 of 2006 on citizenship and Law No. 23 of 2006 on the administration of the population. 72

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Declaration on the Rights of Indigenous Peoples. The representative of India declared that it was his understanding that ‘the right to self-determination applied only to peoples under foreign domination and that the concept did not apply to sovereign independent States or to a section of people or a nation, which was the essence of national integrity.’75 The representative of Indonesia declared that: several aspects of the Declaration remained unresolved, in particular what constituted indigenous peoples. The absence of that definition prevented a clear understanding of the peoples to whom the Declaration applied. In that context, the declaration used the definition contained in the International Labour Organization Convention, according to which indigenous people were distinct from tribal people. Given the fact that Indonesia’s entire population at the time of colonization remained unchanged, the rights in the Declaration accorded exclusively to indigenous people and did not apply in the context of Indonesia.76 A. Traditional Knowledge and Traditional Cultural Expressions in Indonesia A good example for this understanding of appropriate forms of traditional knowledge exploitation is to be found in the Indonesian Copyright Act. Apparently inspired by the WIPO/UNESCO drafted Tunis Model Copyright Law for Developing Countries of 197677 and the WIPO/UNESCO Model Provisions of 1982, but taking the role of the state even further, in 1982 Indonesia introduced in its new Copyright Act a provision, which made the Indonesian state the holder of the copyright to so-called ‘products of popular culture’.78 In the latest revision of the law, the term ‘folklore’ was added to the protected subject matter. The provision further points out that such folkloristic items are common property held by the state and lists as examples ‘stories, tales, fairy tales, legends, chronicles, songs, handicrafts, choreographies, dances, calligraphies and other works of art’. At the time of its introduction in the early 1980s, the strong role of the state in this approach raised concerns among various local communities that they would no longer be able to freely use elements of their own culture. A compromise was found, according to which the state would exercise this copyright only with regards to foreign countries.79 In the latest Copyright Act of

75

See the declaration by Ajai Malhotra on behalf of India, UN DPI, Media Release, n. 47 above, pp. 12–13. 76 See the declaration by Muhammad Anshor on behalf of Indonesia, UN DPI, Media Release, n. 47 above, p. 13. See also declarations made on behalf of India and Indonesia in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, summarized in C. Antons, ‘Traditional Knowledge, Biological Resources and Intellectual Property Rights in Asia; The Example of the Philippines’ (2007) 34(3) Forum of International Development Studies, 1–18. 77 Janice Weiner has contrasted the Tunis Model Copyright Law of 1976 with the WIPO/UNESCO model provisions. While the model provisions provided for royalty collection by a ‘competent authority’ of the state or by the ‘community concerned’, the earlier Model Copyright Law did not offer such a choice but left such collection in the hands of a ‘competent authority’ at national level: see J.G. Weiner, ‘Protection of Folklore: A Political and Legal Challenge’ (1987) 18(1) International Review of Intellectual Property and Competition Law, 86–87. 78 Law No. 6 of 1982 on Copyright, twice amended by Law No. 7 of 1987 and Law No. 12 of 1997. 79 A. Rosidi, Undang-Undang Hak Cipta – Pandangan Seorang Awam. (Jakarta, Djambatan, 1984), 79–80.

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2002,80 Article 10(3) provides that Non-Indonesians will need to obtain a licence from a relevant institution to publish or multiply the material mentioned in the previous subsection. The explanatory memorandum makes it clear that the ‘relevant institution’ deciding about the licence will be a national institution. It explains that the provision is meant to prevent the monopolization and commercialization of as well as potentially damaging acts to Indonesian cultural values committed by foreign parties by requiring the approval of the Indonesian state as the holder of the copyright. On various occasions, both Indonesian and foreign commentators have pointed to the shortcomings and impracticalities of the Indonesian approach. Apart from the simple fact that the provision can be easily circumvented by incorporating a (foreign owned) Indonesian company,81 many issues of practical implementation, such as the decision making body for the licensing process and the distribution of royalties and the manner of staffing, remain unresolved.82 A remarkable case of such national claims to elements of Indonesian culture occurred in 2007, when the Malaysian government used the folk song Rasa Sayang for a tourism campaign. The song is widely regarded as having originated in the Moluccan Islands. However, while the Malaysians regarded the song as heritage of the entire Malay archipelago (Kepulauan Nusantara),83 the Indonesian Minister for Tourism and Culture wanted to investigate whether Indonesia could claim copyright for the song. A member of the Indonesian House of Representatives thought that the Indonesian government should consider legal action against Malaysia. He alleged that Malaysia also had appropriated other elements of Indonesian heritage such as Batik art and the shadow puppet theatre (wayang).84 Prior to the Rasa Sayang dispute, a similar debate about the origins of the musical instrument Angklung and Angklung music had been reported in the Indonesian press.85 Apart from claims able to be made under the above mentioned Article 10(2) of the Copyright Act of 2002, claims to copyright protection could also be based on Article 10(1), which claims copyright mainly for material which actually should rather be subject matter for heritage conservation, such as pre-historical and archaeological ‘works’. In addition, however, this provision uses a ‘catch all phrase’ to make the Indonesian state the copyright holder in general to ‘objects of national culture’ (benda budaya nasional).86 Apart from regional cross-border disputes, the centralized approach via copyright to folklore as national property could also come into conflict with the ongoing process of decentralization in Indonesia, which aims to transfer political decision making powers as well as tax collection to the regions and districts and which has also led to a

80

Law No. 19 of 2002 on Copyright. For an Indonesian language text, see 7 Undang-Undang: Rahasia Dagang, Desain Industri, Desain tata Letak Sirkuit Terpadu, Paten, Merek, Hak Cipta, Perlindungan Varietas Tanaman, Tim Redaksi Tatanusa (eds) (Jakarta, PT Tatanusa, 2005), pp. 293– 355. For an English translation, see Yasmon Rangkayo Sati, Indonesian Intellectual Property Directory, (Jakarta, shortcut Gagas Imaji, 2006), pp. 41–83. 81 A. Sardjono, ‘Perlindungan Folklore: Apakah Rezim Hak Cipta Memadai?’ (2003) 1(1) Jurnal Hukum Nasional 124–137. 82 Antons 2005, n. 9 above, p. 49; Antons 2000, n. 15 above, pp. 87–88. 83 ‘Rasa Sayang belongs to all’ The Star Online, 3 October 2007; M. Lourdes, ‘Rasa Sayang “ours too … we have the right to sing it”’ nstonline, 22 November 2007. 84 ‘Malaysia urges Indonesia to drop plans to sue over folk song’ Jakarta Post, 8 October 2007. 85 C.R. Budiningsih, ‘Menyoal Paten Pengetahuan Tradisional’ Pikiran Rakyat, 30 July 2007. 86 Antons, ‘Traditional Knowledge in Asia: Global Agendas and Local Subjects’, n. 9 above.

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remarkable revival of the institutions of customary law (adat).87 Of the many changes introduced by constitutional amendments since the end of the Suharto period, several are of particular importance for traditional knowledge and traditional communities. Article 18B(2) of the amended Constitution of 1945 states that the state ‘recognises and respects community units based on adat law along with their traditional rights as long as these are still in existence and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia as regulated by law’. Article 28I(3), included in the new Chapter XA Human Rights, guarantees respect for ‘the cultural identities and rights of traditional communities in accordance with cultural development and civilisation’. While the new reference to ‘masyarakat adat’ (adat community) seems a better and non-discriminative term in comparison to the previously used ‘masyarakat terasing’ (isolated community) or ‘suku bangsa terasing’ (isolated ethnic group), it blurs the distinction to majority ethnic groups in Indonesia, such as the Javanese, Sundanese or Balinese, which are also communities based on their respective form of adat.88 Further, the various qualifications used in the constitutional provisions leave no doubt that the policy changes with regards to such communities may not affect the predominant concerns of development (perkembangan) and Indonesian unity (kesatuan negara).89 In multi-ethnic Indonesia with its thousands of islands, claims of the central government to things such as folklore are, therefore, a highly political issue and it is perhaps for this reason that a Government decree required in Article 10(4) for the further implementation of the provision, so far has not been issued. This lack of implementation, however, has apparently not prevented various government departments to begin the development of digitized inventories and registration systems, initially mainly for folkloristic material.90 Increasingly, this activity has also been extended to plant material of importance to traditional medicine and food supply.91 It is interesting to note in this context, that one encounters often a reversed understanding of the relationship between folklore and traditional knowledge in Indonesia. Whereas definitions used in earlier WIPO reports regarded folklore as a sub-category of traditional knowledge, and traditional knowledge thus as the wider term,92 the understanding in Indonesia is frequently the exact opposite with traditional knowledge being regarded as an offspring of the wider term folklore.93 The reason is perhaps that Indonesians until recently identified traditional knowledge mostly with 87

F. and K. von Benda-Beckmann, n. 68 above. C.R. Duncan, ‘From Development to Empowerment: Changing Indonesian Government Policies toward Indigenous Minorities’ in Civilizing the Margins: Southeast Asian Government Policies for the Development of Minorities, C.R. Duncan (ed.) (Ithaca and London, Cornell University Press, 2004), pp. 90–91. 89 Antons 2005, n. 9 above, p. 40. 90 ‘Pemda diminta aktif daftarkan kekayaan budaya’ Detik, 3 October 2007, avail Directorate General of Intellectual Property Rights website , 16 October 2007. 91 See for example the database of agricultural traditional knowledge (teknologi tepat guna alat pengolahan budidaya pertanian) on the technology information link of the Ministry of Research and Technology , 1 June 2008. 92 World Intellectual Property Organization (WIPO), Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1989–1999) (WIPO, Geneva, 2001) (WIPO 2001), 25–26. 93 Sardjono, n. 81 above, 125, with further references. 88

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traditional medicinal knowledge, which was transmitted via ancient scriptures, folkloristic instruction booklets and orally. Until recently, other forms of traditional knowledge, such as traditional knowledge related to biodiversity, have received relatively little attention and demands for protection of traditional knowledge continue to discuss traditional medicine together with artistic expressions.94 Biodiversity related traditional knowledge was often seen as an issue mainly of access to the plant material and the entire debate in this area seems to have been affected and slowed down by the politically difficult decentralization process based on laws, which still are quite ambiguous, although at least some clarification was added with recent amendments.95 Article 18A of the amended Constitution foresees that ‘the exploitation of natural and other resources between the central government and the regional administrations are to be regulated by law and implemented in a just and synchronized way.’ Article 17 of Law No. 32 of 2004 on Regional Government further seems to provide for joint responsibility, including licensing of activities, of the state and local administration in the exploitation of natural resources. The details, however, have to be collected from further implementing laws.96 The National Research Agenda 2006–2009 of the National Research Council mentions ‘indigenous’ knowledge, translated into Indonesian as ‘local knowledge’ (pengetahuan lokal), in the context of supporting food security97 and the use of information technology for its safeguarding and development.98 Access to biological material for research purposes has been regarded in particular as an issue requiring the regulation of activities of foreign researchers. Although an initial Presidential Decision covering this matter was issued as early as 1993, implementing provisions became only available in 1998 with a Circular Letter of the Head of the Indonesian Science Agency (LIPI).99 LIPI also prepared and provided Biologically Active Material Transfer Agreements (MTA) and Research Agreements to be signed by the foreign research entity and a cooperating Indonesian research institute or university. ‘Lemah, Perlindungan Negara pada Pengetahuan Tradisional’ Kompas, 17 March 2006 22 November 2007; ‘HKI – Tidak Ada Perlindungan Pengetahuan Tradisional’ Kompas, 13 December 2006 22 November 2007. See also the collection of papers from a workshop on geographical indications, genetic resources and traditional knowledge held by the Law Faculty of the Universitas Indonesia in cooperation with the Directorate General for Intellectual Property Rights in Jakarta in 2005, Kepentingan Negara Berkembang Terhadap Hak Atas Indikasi Geografis, Sumber Daya Genetika dan Pengetahuan Tradisional, Lembaga Pengkajian Hukum Internasional, Fakultas Hukum Universitas Indonesia and Direktorat Jenderal Hak Kekayaan Intelektual, Departemen Hukum dan Hak Asasi Manusia (eds) (Depok, Lembaga Pengkajian Hukum Internasional, Fakultas Hukum Universitas Indonesia, 2005). 95 J.M. Patlis, ‘New Legal Initiatives for Natural Resource Management in a Changing Indonesia: The Promise, the Fear and the Unknown’ in The Politics and Economics of Indonesia’s Natural Resources, B.P. Resosudarmo (ed.) (Institute of Southeast Asian Studies, Singapore, 2005), p. 232. See also M. Turner and O. Podger with M. Sumardjono and W.K. Tirthayasa, Decentralisation in Indonesia: redesigning the state (Canberra, Asia Pacific Press, 2003). 96 Law No. 32 of 2004 on Regional Government, Art. 17(3). 97 Dewan Riset Nasional, Agenda Riset Nasional, avail Ministry for Research and Technology website , 2 June 2008, p. 39. 98 Ibid., p. 142. 99 Presidential Decree No. 100 of 1993 regarding research permits of foreigners, see M.A. Subroto and Suprapedi, ‘Aspek-aspek hak kekayaan intelektual dalam penyusunan perjanjian penelitian dengan pihak asing di bidang biologi’, paper presented at the ‘Rapat Tim Koordinasi Pemberian Ijin Penelitian’, Lembaga Ilmu Pengetahuan Indonesia (LIPI), 16 October 2001 , 4 April 2006. 94

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The MTA provided that the material was to be used for ‘not for profit’ purposes and that the recipient was not to obtain any ownership rights in the material. If commercialisation was intended, negotiations about compensation, including royalty payments, were necessary. The supplier was also to be informed about the research results and received a royalty free license to use the results for internal research purposes. The Research Agreement envisages cooperation between the Indonesian and the foreign institution and joint intellectual property ownership for jointly made inventions as well as sole ownership with a licensing option for the other party, where only on party contributes to the making of the invention. Again, the material supplied remains the property of the supplier.100 On 15 December 2007, Government Decree No. 41 of 2006 came into force, which now regulates the official permits for foreign researchers, which are to be granted by the Ministry for Research and Technology.101 Regarding biodiversity related material at the national level and in relationship to local parties, Law No. 41 of 1999 on Forests distinguishes between privately owned forests, state forests and forests under customary law (hutan adat).102 Article 2 of the law provides, however, that all forests are under state control,103 whereby the rights of local customary law communities (masyarakat hukum adat) have to be respected, as long as they still exist and their existence is still acknowledged and as long as they are not in conflict with the national interest.104 While the distinction between state and private forest is clear, this is not the case for ‘forests under customary law’, which according to Article 5 may also be regarded as state forests.105 The national government is responsible for the classification and rights to manage ‘forests under customary law’ also revert back to the national government where a customary law community ceases to exist.106 The government may also design certain forests for special purposes, such as research and development, education and training or religion and culture107 and appoint various institutions or customary law communities to manage such areas (Article 34).108 A Government Regulation of 2002 provides further definitions of different types of forests and partly overlapping responsibilities of government agencies and officials responsible for exploitation permits.109 For the most relevant permits in the present context related to the exploitation of forestry products other than wood in forests designated as production forests, a Regulation of the Minister of Forestry of June 2008 also foresees different approval mechanisms and overlapping responsibilities for various types of forests and material sourced in forests.110

100

Ibid., Annex 1 and 2. , 1 June 2008. 102 Law No. 41 of 1999 on Forests, Art. 1(4)–(6). 103 Law No. 41 of 1999 on Forests, Art. 2(1). 104 Law No. 41 of 1999 on Forests, Art. 2(3). 105 Law No. 41 of 1999 on Forests, Art. 5(2). 106 Law No. 41 of 1999 on Forests, Art. 5(4). 107 Law No. 41 of 1999 on Forests, Art. 8. 108 Law No. 41 of 1999 on Forests, Art. 34. 109 Government Regulation No. 34 of 2002 on Forest Organisation and the Formation of a Plan for Forest Management, Forest Exploitation and the Use of Forest Areas (in Indonesian) , 8 July 2008. 110 Regulation of the Minister of Forestry No. P. 36/Menhut-II/2008 on permits for exploitation ventures related to forestry products other than wood in production forests within natural or cultivated forests. 101

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There is further increasing interest in traditional agricultural knowledge and a number of NGOs are active in this field. Although not argued on the basis of intellectual property principles, the prosecution of a farmer from East Java under Law No. 12 of 1992 on Plant Cultivation Systems for selling non-certified seeds to neighbours recently attracted the attention of the media and of NGOs.111 In this context, it will also be interesting to see how Indonesia implements its Plant Variety Protection Act of 2000.112 In common with a few other countries in the region,113 Indonesia attempts in this legislation to integrate traditional and local varieties into a law that mainly aims to protect intellectual property in plant varieties and their commercial exploitation. The relevant provision is Article 7, which states in subsection (1) that ‘local varieties owned by communities are controlled by the state.’ The term ‘milik masyarakat’ used for community ownership is in fact ambiguous; it can also be translated simply as ‘public ownership’. The control will be exercised by the government.114 Details of the naming, registration and use/exploitation of such local varieties as well as about the agencies in charge of the implementation of the provision will have to be collected from a further Government Regulation.115 Therefore, the approach in the Plant Varieties Act is the same as that in the Copyright Act. Community ownership is placed under state control and administered by the national government. As in copyright law, the scheme is not currently operative, as the necessary implementing decree has yet to be issued.116 Geographical indications are a further option to achieve protection of products derived from traditional knowledge. Geographical indication protection was theoretically available via trade marks law since a revision in 1997 and it is now regulated in Chapter VII of the Trade Marks Act, but the Government Regulation to implement the registration system only became available in 2007.117 A geographical indication is defined as ‘a sign, which indicates the place of origin of a good, which due to its geographical environment factors, the nature, the people or the combination of the two factors gives specific characteristics and quality to the produced goods’.118 The scope of geographical indication protection is drawn very wide. It includes agricultural products, foodstuffs, handicrafts or any other goods within the ambit of Article 1(1).119 The explanatory memorandum to the provision extends the protective scope further to forestry, plantation, breeding, fishery and maritime resources as well as to other ‘raw material and/or results of processing from agricultural products as well as from mining products’. The procedures and administration of the system are cumbersome and bureaucratic. The Directorate General of Intellectual Property Rights (DGIPR) is responsible for both the registration of geographical indications as well as H. Jhamtani and D. Patria, ‘Case Documentation: Indonesian farmers prosecuted for breeding their own seeds’ 20 October 2006 , 22 March 2007; Biotani Indonesia Foundation, Flier III: Agri laws in Indonesia – Agresearch –farmers’ experiments and experiences (undated) , 11 February 2008. 112 Law No. 29 of 2000 on the Protection of Plant Varieties, in 7 Undang-Undang, n. 80 above, pp. 357–425. For an English translation see Yasmon Rangkayo Sati, n. 80 above, pp. 195–223. 113 As for India, see C. Antons, ‘Sui Generis Protection for Plant Varieties and Traditional Agricultural Knowledge: The Example of India’ (2007) 29(12) European Intellectual Property Review, 480–485. 114 Law No. 29 of 2000 on the Protection of Plant Varieties, Art. 7(2). 115 Law No. 29 of 2000 on the Protection of Plant Varieties, Art. 7(4). 116 C. Antons, ‘Traditional Knowledge in Asia: Global Agendas and Local Subjects’, n. 9 above. 117 Government Regulation No. 51 of 2007 regarding Geographical Indication. 118 Government Regulation No. 51 of 2007 regarding Geographical Indication, Art. 1(1). 119 Government Regulation No. 51 of 2007 regarding Geographical Indication, Art. 2(2). 111

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that of individual users. In the first case, it will be assisted by a Geographical Indications Expert Team appointed by the Minister of Justice, which in turn will recommend to the DGIPR the appointment of a Technical Evaluation Team to assist with individual applications.120 The Geographical Indications Experts Team further organises and monitors the use of geographical indications and is assisted in this specific task by a Technical Controlling Team again to be appointed by the DGIPR on recommendation of the Geographical Indications Experts Team.121 An ‘authorised agency’, which according to the explanatory memorandum has to be a government agency responsible for the kind of goods that are the subject of the application, has to support the application for registration of a geographical indication with a letter of recommendation.122 Individual users that want to be registered equally need the recommendation of a ‘authorised technical agency’.123 An ‘authorised agency’ may also receive supervisory results from third parties regarding the use of the geographical indication.124 In this case, the explanatory memorandum defines the agency as a ‘government as well as non-government institution, which has the competency in conducting an evaluation and control regarding the quality of food’ and provides as examples the National Agency for Food and Drug Control and the quality testing agency Sucofindo. In sum, we find in the Indonesian case a strong national interest in the promotion of folklore and other forms of traditional knowledge. The Indonesian state regards most of these forms as national heritage and as either property of the state or as property of local communities to be administered and controlled by the state. It is unclear at this stage, how these claims relate to the more recent claims of regions to take charge of their resources on the basis of the decentralization process and the law on regional government. Geographical indications have recently become available to assist with the protection of products resulting from traditional knowledge, but the system is quite bureaucratic. B. Traditional knowledge in biodiversity: Community intellectual rights in the Philippines A completely different picture of the importance of particular forms of traditional knowledge and of the appropriate implementation of protection emerges from the Philippines. The reason for this is to be found in the colonial history of the country, in particular in the US period, which followed several hundred years of Spanish colonial rule. The Spaniards had already begun to distinguish between Christianized Filipinos or Indios, Muslim Filipinos or Moros, and indigenous Non-Christian, Non-Muslim tribes or infieles. When US colonial rule replaced the Spanish in 1898, President McKinley instructed the Philippine Commission that, with regards to the ‘uncivilized tribes’ of the islands, it should adopt ‘the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal

120

Government Regulation No. 51 of 2007 regarding Geographical Indication, Art. 14.

121

Government Regulation No. 51 of 2007 regarding Geographical Indication, Government Regulation No. 51 of 2007 regarding Geographical Indication, Government Regulation No. 51 of 2007 regarding Geographical Indication, Government Regulation No. 51 of 2007 regarding Geographical Indication,

122 123 124

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Art. 19. Art. 6(4). Art. 15(2). Art. 16(1).

organization and government’.125 In 1901 a Bureau of Non-Christian tribes was set up, whose responsibilities extended not only to the infieles but also to the Moros.126 Thus, following independence, the Philippines inherited an administrative structure with regards to indigenous people that is more similar to North and South American settler colonies than to the approaches adopted in neighbouring countries in East and Southeast Asia. Cultural communities were for the first time constitutionally recognized in the Constitution of 1973 and then again in the Constitution of 1987. Nowadays, the National Commission on Indigenous Peoples (NCIP) identifies 95 distinct tribes in 14 regions with an estimated population of 12–15 million people.127 In view of this history, it is perhaps less surprising that the Philippines has become the only country in Southeast Asia to enact comprehensive legislation for the protection of indigenous peoples’ rights, including recognition of ancestral domains and of socalled ‘community intellectual rights’ and ‘cultural and intellectual rights’ with elements of both traditional resource rights and folklore. The Indigenous Peoples Rights Act (IPRA) of 1997, which incorporated all of this, was hailed as landmark legislation for Asia at the time of its enactment. However, shortly after its enactment it faced a constitutional challenge in Cruz vs Secretary of Environment, which it only narrowly survived. As a result of the constitutional challenge, a moratorium was placed on ancestral domain and land claims and the Act remained unimplemented during this period, so that by 2003, only a single ancestral domain title had been granted. Analysts blamed among other things the duplication of functions of the NCIP by other bodies and they pointed to budgetary problems and investigations of NCIP Commissioners during the period of the Estrada administration.128 In the early 1990s, the Philippines also saw a renewed emphasis on the environment and on biological resources, following the People Power Revolution of 1986 and the overthrow of the Marcos government, the restructuring of the Department of Environment and Natural Resources and the institution of a Philippine Commission on Sustainable Development (PCSD) by President Ramos after the Rio Earth Summit in 1992.129 Ecologically sensitive areas became part of the National Integrated

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See the discussion of the history of indigenous communities in the Philippines in the opinion of Puno J. in Cruz vs Secretary of Environment and Natural Resources, 6 December 2000 , 19 January 2006. 126 J.F. Eder and T.M. McKenna. ‘Minorities in the Philippines: Ancestral Lands and Autonomy in Theory and Practice’ in Civilizing the Margins: Southeast Asian Government Policies for the Development of Minorities, C.R. Duncan (ed.) (Ithaca and London, Cornell University Press, 2004), pp. 60–61; R.J. May, ‘Ethnicity and Public Policy in the Philippines’ in Government Policies and Ethnic Relations in Asia and the Pacific, M.E. Brown and S. Ganguly (eds) (Cambridge, Massachusetts and London, MIT Press, 1997), p. 331. J.M. Molinas, ‘The Philippines Indigenous Peoples’ Struggle for Land and Life: Challenging Legal Texts’ (2004) 21(1) Arizona Journal of International and Comparative Law, 269 at 272. 128 A.L. Casambre, ‘Indigenous Peoples in Politics and Governance’ in Philippine Politics and Governance: Challenges to Democratization and Development, T.S. Encarnacion Tadem and N.M. Morada (eds) (Quezon City, University of the Philippines/Philippine Commission on Higher Education (CHED), 2006), p. 116. 129 W. Bello, H. Docena, M. de Guzman and M. Malig, The Anti-Development State: The Political Economy of Permanent Crisis in the Philippines. London-New York, Zed Books, 2004), p. 218; M. Danguilan Vitug, ‘Forest Policy and National Politics’ in Forest Policy and Politics in the Philippines: The Dynamics of Participatory Conservation, P. Utting (ed.) (Quezon City, Ateneo de Manila University Press, 2000), pp. 11–39; S. Halos, A.G. La Vina, M.S. Lim and M.J. Caleda (eds), 127

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Protected Areas System (NIPAS) in 1992. The Philippines was also one of the first countries to follow up with a government regulation on bioprospecting in the form of Executive Order No. 247 (EO 247) ‘Prescribing a Regulatory Framework for the Prospecting of Biological and Genetic Resources, their By-Products and Derivatives, for Scientific and Commercial Purposes and for Other Purposes’ of May 1995, which in turn was followed by implementing regulations in 1996. The Executive Order covered all types of biodiversity collection activities, with the exception of traditional use, and it created an Inter-Agency Committee on Biological and Genetic Resources. Parties interested in bioprospecting had to enter into a research agreement with a relevant government department, the agreement being either academic or commercial in nature. On paper, therefore, the Philippines had by the late 1990s sophisticated legislation incorporating the latest trends in sustainability, biodiversity and traditional knowledge protection. In practice, however, the implementation of the Indigenous Peoples Rights Act was suspended and only two approvals for research agreements under EO 247 were granted between 1995 and 2001.130 From 2001 onwards, the new Arroyo administration began to replace the previous legislation with new executive orders and acts, aimed at harmonization of the Indigenous Peoples Rights Act with environmental and natural resources laws and policies. The first piece of this new legislation was a new Wildlife Act, Republic Act No. 9147 ‘providing for the conservation and protection of wildlife resources and their habitats, appropriating funds therefor and for other purposes’. As this Act concerned collection areas in the entire country, there was potential for overlap with ancestral domains and lands under the IPRA. To solve the problem, DENR and NCIP now issued a joint memorandum striving for harmonization of the various laws within their areas of responsibility. The final step in this direction has been Joint Administrative Order No. 1 Series of 2005 of DENR, the Department of Agriculture (DA), the Palawan Council for Sustainable Development (PCSD) and the NCIP, with a completely new set of guidelines for bioprospecting activities in the Philippines. These guidelines apply to all bioprospecting activities in the Philippines, including those in ancestral domains and on ancestral lands under the IPRA. Bioprospectors are required to enter into a Bioprospecting Undertaking (BU) with the Secretary of the Department of Agriculture or the DENR. The DENR, DA as well as the NCIP are the implementing agencies and the NCIP takes the lead role in assisting indigenous people who are resource providers in documenting free and prior informed consent and in negotiating for benefits under the BU. In such cases, the rules of the IPRA apply for the documentation of prior informed consent. While representatives of the resource providing communities negotiate the details of the benefit sharing agreement, bioprospecting fees are collected by the national government and they may be higher where traditional knowledge is involved. In cases of collection from ancestral domains, the fee is to be used in accordance with the IPRA. There are various formulas for the calculation of financial benefits as well as provisions for a performance bond of 25 per cent of the project cost, which will be forfeited in case of breach of the BU. EO 247 is repealed in so far as it is inconsistent with the new Developing the National Biosafety Framework for the Philippines (Quezon City, Department of Environment and natural Resources – Protected Areas and Wildlife Bureau, 2004), p. 48. 130 K. Swiderska, E. Dano and O. Dubois, Developing the Philippines Executive Order No. 247 on Access to Genetic Resources. Participation in Access and Benefit-Sharing Policy, Case study no 4 (London, International Institute for Environment and Development (IIED), 2001), p. 28.

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Wildlife Act. The Inter-Agency Committee on Biological and Genetic Resources is also dissolved and its functions are taken over by the Secretary of the DENR or DA respectively. For BU of a commercial nature, an annex to the guidelines contains certain standard terms and conditions. A recent report drafted by the National Intellectual Property & Strategy Project Team of the Office of the Director General of the Intellectual Property Office of the Philippines finds stakeholder problems with the documentation and recording of biodiversity related traditional and indigenous knowledge and with the contractual approach under RA 9147.131 The report also finds the NCIP still preoccupied with ancestral title claims, no cooperation agreements with IP Philippines and no specialized IP department within the Wildlife Management Section Protected Areas and Wildlife Bureau of the DENR.132 The report recommends the establishment or linking together of biodiversity, genetic resources and indigenous knowledge and folklore databases that should be accessible to IP examiners by 2009. It further recommends the establishment of specialised desks at IP Philippines for genetic resources and indigenous knowledge respectively, which could also serve as mediation body and be tasked to monitor the acquisition of IP rights on such knowledge from the Philippines worldwide and defend such knowledge against such attempts to appropriate it. A central body should become responsible to regulate bioprospecting for both land and marine resources, the coordination between the NCIP and IP Philippines be improved and rules and regulations regarding indigenous knowledge and folklore and geographical indications be drafted.133 C. Traditional knowledge in agriculture: The Indian Protection of Plant Varieties and Farmers’ Rights Act Among the unfinished agenda items of the TRIPS agreement is the review of the socalled ‘biotechnology clause’ of Article 27.3(b), which allows members states to exclude plants and animals and essentially biological processes for the production of plants and animals from patenting, but requires the availability of patents for microorganisms and non-biological and microbiological processes as well as protection for plant varieties, which member states may provide either via the patent system or via an ‘effective sui generis’ system or by using a combination of the two. India’s answer to this is the appropriately worded Protection of Plant Varieties and Farmers’ Rights Act (PPVFRA) of 2001. In common with many other countries, India has adopted many of the requirements from the UPOV Convention in its less stringent 1978 version, although the legislation contains also elements of the stricter 1991 UPOV Convention, which is more favourable to commercial plant breeders. However, the legislation attempts simultaneously to achieve some balance between commercial breeders and traditional small-scale and subsistence farmers. According to Section 39 of the PPVFRA there are farmers’ rights to new varieties and to ‘farmers’ varieties’. The latter is defined as ‘a variety which (i) has been traditionally cultivated and evolved by the farmers in their fields; or (ii) is a wild relative or land race of a variety 131

A. Cristobal, Jr, E.E. Perez and N.B. Abella (with C.A. Torres-Villanueva, J.A.Z. Ros and M.A. Lim), Report on the National Intellectual Property Policy & Strategy: Advancing Great Ideas and Intellectual Property in 2008-2010 (Manila, Office of the Director General, Intellectual Property Office, 2007) (copy on file with the author), p. 63. 132 Ibid., pp. 68–72. 133 For a complete list of the recommendations, see pp. 67 and 74 of the report.

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about which the farmers possess the common knowledge’. Rather confusingly, farmers’ varieties turn up again under the definition of ‘extant varieties’ and are apparently understood as a sub-category of those. The PPVFRA allows for the registration of such varieties. In the case of farmers’ varieties, the registration mechanism can be used by ‘any farmer or group of farmers or community of farmers claiming to be the breeder of the variety’.134 However, there is no provision for royalty payments. Instead, the legislation foresees the formation of a National Gene Fund, into which benefit-sharing payments, annual fees, money from compensation claims and contribution from other organizations and sources are to be paid. The amount of benefit sharing will be determined by a newly formed Protection of Plant Varieties and Farmers’ Rights Authority. Farmers are then entitled for ‘recognition and reward’ from the National Gene Fund.135 The traditional right of farmers to reuse saved seed has been safeguarded in Section 39(1)(iv) but, in accordance with UPOV 1991, the farmer is no longer allowed to sell branded seed of a protected variety. The Authority will further decide about two types of compensation claims by farmers against commercial breeders. They can claim compensation, should the performance of the commercial variety remain below what the farmer had expected and the breeder promised.136 There is further the collective claim of a community against a breeder for the contribution the community has made to the evolution of a variety used in the breeding process.137 Any person, group of persons (whether actively engaged in farming or not) and any governmental or nongovernmental organization may raise the claim on behalf of any village or local community in India. Academic commentators have expressed concern about the partly overlapping and partly diverging regulations on benefit sharing and compensation to the community, which may lead to situations where breeders have to pay twice for use of the same traditional knowledge. It has further been criticized that the legislation grants no real property rights and that there is strong dependence on the national Protection of Farmers’ Rights and Plant Varieties Authority.138 One commentator found a ‘reluctance of Parliament to recognize that ownership of traditional knowledge rests with the community and to develop legislation from that perspective’, so that ‘it can safely be concluded that the provisions to protect the traditional knowledge of the farming community are not going to work to the advantage of these communities.’139

IV. Some preliminary conclusions and suggestions for solutions The examples from Asia allow for several tentative conclusions. First, the example from the Philippines shows that holistic forms of ‘community intellectual rights’ are not easy to implement in young Asian nation states crucially dependent on economic 134

PPVFRA, s. 16(d). PPVRFA, s. 39(1)(iii). 136 PPVRFA, s. 39(2). 137 PPVRFA, s. 41. 138 P. Cullet, ‘Property Rights over Biological Resources: India’s Proposed Legislative Framework’ (2005) 8(3) The Journal of World Intellectual Property, 211 at 220. 139 N.S. Gopalakrishnan, ‘Protection of Traditional Knowledge: The Need for a Sui Generis Law in India’ (2002) 5(5) The Journal of World Intellectual Property Law, 725–742. 135

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development. Because of their link to indigenous self-determination, such holistic rights are bound to collide with powerful state interests, in the case of the Philippines in the form of the mining industry. Analysts have further pointed to the inherent tensions between the bureaucratic culture of the state agencies and indigenous cultures based on customary law.140 Anthropologists have spoken here of ‘oppressive authenticity’ because of the many onerous requirements for indigenous communities to show the ‘authenticity’ of their identities and their continuing link with the territory, resources and objects in question.141, What is feasible under the circumstances is a centrally administered process of supervision over bioprospecting activities with the involvement of indigenous communities regarding prior informed consent and benefit sharing in their respective ancestral domains. In contrast to the Philippines, both India and Indonesia take a much more centralist approach. At UN and other international meetings, both countries have expressed their difficulties with and reservations about the term ‘indigenous people’. As a consequence, ‘indigenous’ and ‘indigenous culture’ become largely identified with ‘national’ and ‘national culture’. The approaches and the focus on specific forms of traditional knowledge are of course also influenced by different economic circumstances and differing resource endowment. While the focus of the Philippines has been on biodiversity related traditional knowledge, Indonesia has so far focused on folklore, and India is especially interested in traditional agricultural knowledge, although there is also a Biodiversity Act with an even more centralized approach than the PVFRA. In accordance with the international understanding of farmers’ rights, the Indian legislation only establishes an equitable claim to compensation, which will be mitigated by the national authority. Indonesia, on the other hand, has attempted to create real intellectual property rights in the form of a state-held copyright and community owned rights to plant varieties under the control of the state, but the relevant provisions have not been implemented. Any claims in Indonesia would also be affected by the current decentralization policy with its renewed emphasis on customary law communities (masyarakat adat). What remains, therefore, is a bundle of potential rights and equitable compensation claims, used in different ways for different elements of traditional knowledge. Sometimes, the aim is the establishment of real rights, sometimes the rights discourse serves only the purpose of negotiating from a strong basis for forms of equitable compensation or for defensive mechanisms of state protection for heritage. Among the legal approaches used in this context are equitable doctrines such as confidential information, the law of trusts and fiduciary relationships, geographical indications, trade marks guaranteeing authenticity, patents and utility models for forms of traditional medicine, farmers’ rights and the stronger forms of community intellectual rights as in the Philippines. This is supplemented with purely practical measures such as inventories, digitization and traditional knowledge databases to prevent the patenting of intellectual property rights by outsiders. Progress seems modest in view of the ambitious aims of establishing real intellectual property rights in traditional knowledge, but at least the problems are now acknowledged and debated in national and international for a with a view to seeking practical solutions and workable compromises. 140 141

Casambre, n. 128 above, pp. 118–119. Sissons, n. 8 above, p. 28.

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