Safeguarding Traditional Knowledge in Malaysia
Traditional knowledge refers to knowledge, innovations and practices of indigenous and local communities which are developed from experience gained over the centuries and adapted to the local culture and environment.[1] It encompasses a broad spectrum of matters passed down through generations, including medicinal, agricultural and environmental insights. In recent years, there has been increasing concerns over biopiracy, exploitation and the unauthorized commercialization of traditional knowledge by unscrupulous third parties. This necessitates robust legal frameworks in many countries to protect these invaluable resources for future generations.
Malaysia is a diverse multiracial country with many different ethnic groups living in harmony. Apart from the major ethnic groups (Malay, Chinese and Indian), the population of Malaysia also comprises of indigenous communities such as the Orang Asli in Peninsula Malaysia and the natives in Sabah and Sarawak. These communities have developed, preserved and transmitted various forms of traditional knowledge in Malaysia such as traditional medicine and agricultural techniques.
Malaysia is also blessed with lush tropical rainforests, beautiful beaches and a complex natural ecosystem. It is recognised as one of the most biodiverse countries in the world and is currently ranked 12th in the National Biodiversity Index[2]. Given Malaysia’s rich biodiversity, traditional knowledge plays a critical role in the sustainable management of natural resources that are available on its terrain.
Legal instruments to protect traditional knowledge
There is no standalone legislation in Malaysia that is solely dedicated to the protection of traditional knowledge. The efforts to protect and preserve traditional knowledge involve a broad framework including international treaties and domestic legal statutes. The commitment to the conservation of biodiversity and traditional knowledge can be seen through Malaysia’s ratification of the Convention on Biological Diversity (“CBD”) in 1994 and subsequent accession to the Nagoya Protocol in 2018.
Amongst others, Article 8(j) of the CBD requires Malaysia 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”.
The Nagoya Protocol elaborates further on Malaysia’s obligations to protect traditional knowledge. Article 5 requires Malaysia to take legislative, administrative or policy measures to ensure that benefits arising from the utilization of genetic resources that are held by indigenous and local communities are shared in a fair and equitable way with such communities. Article 7 of the Nagoya Protocol mandates that “traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established.” In addition, Article 12 of the Nagoya Protocol provides, amongst others, that Malaysia’s domestic laws will need to take into consideration “indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources”.
As a party to the CBD and the Nagoya Protocol, Malaysia joins the international community in advancing global efforts to promote the sustainable use of natural resources and to ensure equitable sharing of benefits with indigenous people who possess traditional knowledge.
IP rights and traditional knowledge
Traditional knowledge is often presented in oral and undocumented format (ie. spoken words and practical demonstration). In contrast, Intellectual Property (“IP”) rights are required to be documented in written records or tangible forms before they are eligible for protection. Hence, most traditional knowledge is incapable of being protected under the IP law framework due to the lack of documentation.
IP laws can potentially be abused to exploit traditional knowledge if there is no legislative intervention. For example, there may be attempts by third parties to file patents based on medicines or traditional knowledge which are known only by indigenous communities but are not documented in writing. It is possible that such a patent may be granted by the patent office (usually in developed countries) without considering the prior art that deal with traditional knowledge since there are no records of such prior art in the patent databases. The patent owner can then proceed to make profits from exploiting the patent without compensating the indigenous communities. In an extreme scenario, the patent owner may even exercise the legal right to prevent members of the indigenous communities from utilising the material that has already been patented, notwithstanding that the material had originated from traditional knowledge. Indigenous communities may also be unwilling to take action in the Courts to invalidate such patents due to high legal costs or lack of legal representation.
In response to these challenges, Malaysia has taken several initiatives on the domestic front to prevent its IP laws from being manipulated by unethical bioprospectors. Some of these early initiatives included the following:
(a) Under the Protection of New Plant Varieties Act 2004 (“PNPVA 2004”), an application for the registration of a new plant variety and a grant of a breeder’s right must be accompanied with the prior written consent of the authority representing the local community or the indigenous people in cases where the plant variety is developed from traditional varieties[3]; and
(b) The Intellectual Property Corporation of Malaysia (“MyIPO”) has set up the Malaysia Traditional Knowledge Digital Library[4] since 2009. This digital library contains information and data documentation related to traditional knowledge and genetic resources in Malaysia. Although the digital library is not an exhaustive archive and it is still a work in progress, it provides an additional avenue for the MyIPO patent office to search for prior art when examining a patent application.
An important milestone
The Access to Biological Resources and Benefit Sharing Act 2017 (“ABS Act 2017”) was passed by Parliament and was gazetted on 17 October 2017. It subsequently came into force on 18 December 2020. The ABS Act 2017 represents a significant step taken by Malaysia to strengthen the protection of traditional knowledge. The term “biological resource” is interpreted in the ABS Act 2017 to include:
(a) the genetic resources, organisms, microorganisms, derivatives and parts of the genetic resources, organisms, microorganisms or derivatives;
(b) the populations and any other biotic component of an ecosystem with actual or potential use or value for humanity; and
(c) any information relating to paragraphs (a) and (b).
With the passing of the ABS Act 2017, any access to biological resources in Malaysia is stringently regulated. Section 12 of the ABS Act 2017 makes it mandatory for any person who intends to access a biological resource or traditional knowledge associated with a biological resource to apply for a permit with the relevant Competent Authority listed under the First Schedule. The Competent Authority would have to take into consideration a long list of factors under Sections 12(2)(a) to (p) of the ABS Act 2017 before granting the permit. The relevant factors include establishment of a benefit sharing agreement with the resource provider as well as obtaining informed consent from the relevant indigenous or local community. Any person who accesses such biological resource or traditional knowledge associated with a biological resource in Malaysia without a lawful permit is liable to commit a criminal offence. The punishment for such offence ranges from a fine not exceeding RM 500,000 (US$ 125,000) and/or imprisonment not exceeding 10 years for a guilty individual to a fine not exceeding RM 5 million (US$1.25 million) for a guilty body corporate.
Section 31 of the ABS Act 2017 also provides that any person applying for a patent, whether in or outside Malaysia, in relation to a biological resource or traditional knowledge associated with a biological resource accessed shall notify the National Competent Authority in writing within 30 days from the date of the application. Failure to do so is a criminal offence where a guilty individual can be fined up to RM 100,000 (US$ 25,000) or to imprisonment for up to 7 years or both. A guilty body corporate can also be fined up to RM 500,000 (US$ 125,000).
The potential high fines and long imprisonment terms provided by the ABS Act 2017 are meant to act as deterrent for any attempts at illegal bioprospecting or biopiracy in Malaysia. The ABS Act 2017 also provides the authorities with a wide range of arsenal to enforce the legislation which included powers to enter into premises, access computerized data, search suspects as well as conduct seizure and forfeiture of items. The extensive enforcement powers conferred on the authorities by the ABS Act 2017 clearly indicates the Malaysian government’s tough stance against any misappropriation or unfair exploitation of traditional knowledge.
Conclusion
The safeguarding of traditional knowledge in Malaysia is closely linked to the preservation of its rich biodiversity. The valuable insights provided by indigenous communities on Malaysia’s flora and fauna should not be monopolized by any individual or corporation. Instead, this knowledge should be treated as a shared heritage that benefits the broader society as a whole. The establishment of clear guidelines and rules under the ABS Act 2017 can ensure that any commercial use of traditional knowledge is conducted ethically, with fair compensation and proper acknowledgement of the communities that have contributed to the development of traditional knowledge. The empowerment of indigenous communities and strengthening of the legal position of tradition knowledge in Malaysia would ultimately encourage sustainable management and use of Malaysia’s natural resources, ensuring that both cultural wisdom and biodiversity continue to thrive for future generations to come.
If you have any questions or require additional information, please contact Stanley Lee Wai Jin or the partner you usually deal with at Zaid Ibrahim & Co.
This article is for general information only and is not a substitute for legal advice.
[1] https://www.cbd.int/traditional/intro.shtml
[2] https://www.cbd.int/countries/profile?country=my
[3] Section 12(1)(f) PNPVA 2004
[4] https://www.myipo.gov.my/en/malaysia-traditional-knowledge-digital-library-mytkdl/