Traditional Knowledge in Taiwan: A Call for Greater Participation of Indigenous Peoples in the Global Intellectual Property Marketplace.

• Author: Cooper, James M.

TABLE OF CONTENTS I. INTRODUCTION 1478 II. TRADITIONAL KNOWLEDGE IN INTERNATIONAL LAW 1485 III. CAN TRADITIONAL KNOWLEDGE BE PROTECTED THROUGH CURRENT INTELLECTUAL PROPERTY LAWS AT THE NATIONAL LEVEL? 1494 IV. THE NEED FOR AN INTERNATIONAL TREATY AND TAIWAN'S NEED FOR RECOGNITION 1501 V. NATIONAL LEGISLATION IN TAIWAN 1505 VI. CONCLUSION 1509 ANNEX 1 1511 ANNEX 2 1525 I. INTRODUCTION

On August 1, 2016, Taiwanese President Tsai Ing-wen apologized to the Aborigines of Taiwan (1) for centuries of injustice. (2) For four hundred years, these Indigenous peoples on the island have been marginalized, unable to hunt on their traditional lands or practice their own customs. (3) Like Indigenous Peoples in other parts of the world, the Aborigines of Taiwan live at a relatively low socioeconomic level, have a shorter life expectancy, and suffer from higher incidents of illness and underdevelopment. (4) They make up only 2.3 percent of the population and are of Malayo-Polynesian heritage. (5)

This apology from Taiwan's leader provides an opportunity for Taiwan to help lead the development of Traditional Knowledge and the protection of Indigenous rights around the region, an area not known for its kind treatment of its Indigenous Peoples. In her apology, President Tsai called for a "shared prosperity and a new future for Taiwan." (6) One area in which these goals could be achieved concerns the commercialization of traditional medicines and healing methods, also known as Traditional Knowledge (TK). (7) According to the World Intellectual Property Organization (WIPO), a United Nations agency, TK refers to the content or substance of knowledge resulting from intellectual activity in a traditional context, and includes the know-how, skills, innovations, practices and learning that form part of traditional knowledge systems, and knowledge embodying traditional lifestyles of indigenous and local communities or contained in codified knowledge systems passed between generations. (8) TK is not limited to any specific technical field and may include agricultural, environmental, and medicinal knowledge, as well as knowledge associated with genetic resources. (9)

Taiwan is in the unique position of being both a provider and user of TK and the healing sciences that stem from it. (10) Taiwan is a provider in that its location and its topography and plant life are rife with opportunities: "Taiwan is somewhat of a hotspot when it comes to biological diversity." (11) Taiwan also enjoys an economy and society that qualify it as a developed country. "[I]n terms of development--both economically and technologically--Taiwan has certainly reached a level that is characteristically within reasonable comparison to nations belonging to the North." (12)

It is no surprise then that Taiwan has been very successful in its development of biotechnology and life sciences, (13) given its track record in building a robust knowledge-based economy. (14) The Bertelsmann Transformation Index (BTI), a leading biennial report, which measures the development status and governance of political and economic transformation in developing countries globally, ranked Taiwan as the third highest of 129 developing and transitional countries in 2018. (15) This is after a spectacular performance in 2016, when the BTI ranked Taiwan at the top of 129 developing and transitional countries around the world on the transformation index. (16)

Over the years, Taiwan has successfully laid the foundations for a stable market economy, one based on competition and innovation. Strong private property rights and a stable currency, as well as government incentives, have all assisted to foment economic growth and development. A future built on biotechnology and the life sciences industry is part of further growth strategies. The Act for the Development of Biotech and New Pharmaceuticals Industry (17) was passed in 2007. It was amended in 2017 to assist in implementing the national strategy through tax and other incentives. Taiwan's Legislative Yuan also passed the Protection Act for the Traditional Intellectual Creations of Indigenous Peoples. (18) While the law has not been implemented in any meaningful way, with President Tsai's apology and promises for further legislative protections in the future, there is an opportunity for Taiwan to take a leadership role in developing a new international regime for sharing the benefits of TK, Genetic Resources (GR), and Indigenous folklore (Folklore).

The protection of these and other Indigenous practices plays a role in a wide variety of policy areas, including agricultural productivity, biological diversity, cultural patrimony, food security, environmental protection, labor relations, business ethics, competition law, human rights, industrial policy, international trade, public health, scientific research, sustainable development, income inequality, and relations between developed and less developed countries. (19)

The time is right to bring TK and Traditional Medicine (TM) into wider practice and protection. According to a report from the WIPO,

TM practices, particularly whole medical systems such as TCM [Traditional Chinese Medicine], share many of the same core values. These practices tend to be characterized by a holistic and highly individualized approach to treatment, an emphasis on maximizing the body's inherent healing ability, involving patients as active participants in their own care, addressing physical, mental, and spiritual attributes of a disease, and placing a strong emphasis on prevention and wellness." (20) There has been media attention paid to TK and Traditional Chinese Medicine (TCM), which assisted in educating the general public of its strengths. The most decorated Olympic athlete of all time, (21) swimmer Michael Phelps, competed in the 2016 Rio de Janeiro summer Olympics with marks on his back from "cupping." (22) Government regulators regularly advertise its features. (23) Popular culture has also seized on the heightened interest in Traditional Chinese Medicine. (24) Magazine articles, (25) documentary films, (26) and scholarship (27) have emerged in legal and medical fields. A series of web stories emerged questioning different treatments. (28)

In 2016, a famous teen actress in China died of lymphoma. (29) She had tried to use only TCM to treat her illness rather than more Western medical approaches. (30) Herbal supplements from China have also caused a ruckus in the medical field over the rise of necessary liver transplants. (31) In the face of these negative media reports, the Hong Kong government stated: "Traditional Chinese Medicine is of great value and has been making significant contributions to the health of mankind." (32) The practice is so integral to the Special Administrative Region that the Hong Kong Tourism Board advertises Hong Kong as a destination for Traditional Chinese Medicine. (33) In April 2019, the first TCM hospital opened in Hong Kong. (34)

The COVID-19 pandemic has also sparked interest in using TK to treat the symptoms of coronavirus. (35) Herbs from Madagascar are being touted as helpful. (36) Likewise, herbs from China are being studied for their effectiveness in therapeutic treatment of the coronavirus. (37) Scientific papers are discussing the efficacy of Traditional Chinese Medicine. (38)

This Article examines the timely need to expand the legal framework for TK, conclude a multilateral treaty under the auspices of WIPO, and have it implemented nationally in each country. Taiwan can do its part as academic, political, and civil society leaders to make TK a priority within their territory and help facilitate a global movement towards more inclusion in the global Intellectual Property (IP) regime. This Article is divided into six parts. After this introduction, which comprises Part I, Part II provides a definition of TK and explores the sources in international law for the protection and promotion of these ancient healing mechanisms. There is a weak basis in international law for the protection of Indigenous medicine and other healing arts, thereby necessitating the creation of a new treaty to reflect evolving norms in international law and state practice.

Part III of this Article then examines the ways which national laws, including those related to patents and copyrights, with limited success, have been used to protect Traditional Knowledge. To redress cases of biopiracy, Indigenous Peoples, nongovernment advocacy, and cause/social justice lawyering have worked together to advance civil society through litigation. This Part concludes by surveying some of the difficulties in applying international IP laws to TK and the tension that exists in trying to fit Indigenous collective practices into Western-centric IP law that is more individually based.

Part IV of this Article examines the attempts to make good on President Tsai's promises to Taiwan's Aborigines of August 1, 2016, and steps that have been taken to create a legal framework to better protect TK of the island's Aborigines. Part V demonstrates the need for an international treaty to protect TK and surveys the most recent iteration of such a draft treaty negotiated at the WIPO. It also examines the reasons why Taiwan should take a leadership role in developing mechanisms to embrace TK in its IP laws and encourage its diplomatic partners to do the same. It is important to note the difficult diplomatic and legal challenges that Taiwan faces, given that only 14 countries (plus the Vatican) now recognize the Republic of China as a state. (39) The conclusion, which forms Part VI of this Article, reflects on the highly charged political and formal international legal matter that "cross-Straits" relations have become. (40)

This geopolitical reality, however, is also an opportunity. While the Republic of China is not a member of the WIPO, it is a Member of the World Trade Organization (WTO). (41) With over $430 billion in...