Protection of Indigenous Knowledge: Mismatch Between The Convention on Biological Diversity and TRIPS Agreement

Malaysia is in the midst of drafting a national law to regulate access to its genetic resources and to ensure equitable sharing of benefits derived from its commercialisation. One of the issues being addressed in the drafting process relates to the protection of indigenous peoples’ resources and traditional knowledge. The Convention on Biological Diversity (CBD) establishes an obligation to seek prior and informed consent for the use of any traditional knowledge and seeks to ensure benefit-sharing. The contemporary international intellectual property rights (IPR) framework under the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement), however, does not contain such a requirement for benefit-sharing. Thus, the main objective of this article is to study the protection of indigenous peoples’ resources and knowledge under the existing IPR legal framework. The relationship between the IPR system under the TRIPS Agreement and the access and benefit-sharing principles of the CBD relating to traditional knowledge will be the main focus of the analysis. This article will demonstrate the existing international IPR framework does not provide adequate protection for traditional knowledge and is inconsistent with provisions of the CBD.