PERLINDUNGAN SUMBER DAYA GENETIK DAN PENGETAHUAN udTRADISIONAL SEBAGAI PERWUJUDAN KEDAULATAN NEGARA udDALAM PEMBANGUNAN HUKUM KEKAYAAN INTELEKTUAL udNASIONAL PASCA TRIPs

摘要

Indonesia is a mega - biodiversity country with genetic resources richness udand most of the times are associated with traditional knowledge. The loss of udbiodiversity and commercialization of genetic resources and associated udtraditional knowledge have been causing great concern, especially when udIntellectual Property Rights are applied to claim monopoly. The conquest for a udintersection between Indonesia’s international obligation as WTO state member udand TRIPs parties and the national interest regarding the souvereignity has udbecome a high level urgency to set up a fair and equitable protection between two udimportant issues : Traditional Knowledge and Intellectual Property. udInternationally, Genetic Resources and Traditional Knowledge issues have udbeen a tension between the predominantly northen hemisphere, industrialized udnations and the predominantly southern hemisphere, financially poorer but udbiologically diverse nations. Developed countries for centuries have been udexploited the Genetic Resources and Traditional Knowledge of developing udcountries through Bioprospecting for financial reward and excessive monopoly udrights and in the process have caused significant destruction, in return such udpatented products arising from bioprospecting have been sold back to the uddeveloping countries at unaffordable prices. udGenetic Resources and Traditional Knowledge do not fit with conventional udIntellectual Property regime under TRIPs, as it is a communal collective rights udrather than private individual rights, therefore sui generis system with udcustodianship based on national souvereignity is far more appropriate system to udprotect Genetic Resources and Traditional Knowledge. This system mainly uddepends on the synergy between government action and community participation udand they are entitled to participate at all levels of decision making concerning the uduse and exploitation of Genetic Resources and Traditional Knowledge. ud In international scope, the cooperation and reciprocity of good faith are udfundamental in providing a certainty that the use and exploitation of Genetic udResources and Traditional Knowledge are conduct with prior informed consent, udfair and equitable benefit sharing and disclosure of origin in a mutually agreed udterms. ududKey words : Genetic Resources, Traditional Knowledge, Intellectual Property Rights, National udSouveregnity, Mutually Agreed Terms.