Modern Asian Studies

Research Article

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

CHRISTOPH ANTONS

School of Law, Deakin University, Australia Email: christoph.antons@deakin.edu.au

Abstract

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

(Online publication February 01 2013)

Footnotes

*  This paper is based on a presentation given at the 2nd International Conference of the Asian Borderlands Research Network in Chiang Mai, Thailand, on 6 November 2010. The final revised version was submitted on 5 June 2012. Changes in the laws are taken into account until the submission date. The author would like to thank two anonymous reviewers for their helpful comments on an earlier draft. The research for this paper was conducted in the context of the ‘IP in Asia’ project of the Australian Research Council Centre of Excellence for Creative Industries and Innovation (CCI), although the views expressed herein are those of the author and not necessarily those of the Australian Research Council or of the CCI.