Intellectual property right and farmer protection in accessing genetic resources

Intellectual Property Rights (IPR) in the field of agriculture are regulated under the Patent Law, the Plant Breeder’s Right Act and the Plant Cultivation System Act. The decision Number 99/PUU-X/2012 of the Constitution Court granted the right of farmers to access genetic resources (GR). The study aims to assert an application relevance of the law on the events in concreto complying with the provisions of law or contract. This is normative law research. This study revealed that if the Plant Breeder’s Right Act and the Patent Act are linked to access to GR, they are not adequately regulated of how fair its benefit-sharing from the use of genetic resources, especially to local communities or farmer which had traditional knowledge (TK). The benefits of IPR are, a form of legal protection against the TK of the population over local varieties, it can utilize GR, and as conservation. IPR has progressively been incorporated into agriculture, namely Law Number 4/2006 concerning the Ratification of the International Treaty on Plant Genetic Resources for Food and Agriculture (PGRFA) and Law Number 11/2013 on the approval of the Nagoya Protocol on access to GR and the fair and equitable benefit-sharing arising from their utilization to the Convention on Biological Diversity. Based on this, it is essential to consider equal and balancing protection between breeder rights and farmer rights.


Introduction
In the last decade, Access and Benefit-Sharing (ABS) issues had increasingly become part of the international and national policy and legal agendas related to biodiversity in general and genetic resources (GR) in particular. Approximately 18 countries have developed long-distance access and ABS, which are well summarized and covered by regulations on biodiversity. Some countries that have developed national laws include the Philippines, Brazil, Peru, India, Ethiopia and others. Indonesia is still in the process of discussing the Genetic Resources Bill, which provides Access and Benefit-Sharing arising from the utilization of GR.
In Indonesia, the National Law on GR has not yet been regulated, however Article 33 paragraph 3 of the Indonesia Constitution which said that any natural resources, including GR, are under the authority of the Government and should be used as much as possible for the people welfare, can be the base for any law and regulation on GR. Other law related to GR  One form of reward given to the invention must at least be protected with intellectual property rights (IPR) such as patent or plant variety protection. Commercialization of technology products will generate income that can be used to fund future research and technology development. Pharmaceutical companies closely related to biotechnology are based their research and development of pharmaceutical products from GR, coming from developing countries.
The process of accessing GR is often done by biopiracy. Biopiracy is essentially the act of taking valuable resources from a country's traditional knowledge (TK) that is packaged and redeveloped without giving contribution to the holders of TK's. Some people view biopiracy as the act of stealing valuable resources for the commercial gain of developed countries and multinational corporations [3]. To those with this view, biopiracy represents a disingenuous repackaging of TK to secure monopoly rents for the biopirate excluding the original innovator from a claim to these rents. The fact that the potential returns from investing in modern biotechnology accrue only to those who hold IPR biased in favours of contemporary biotechnology and against TK raises significant inequity concerns.
While the definition of bioprospecting is an umbrella term describing the discovery of new and useful biological samples and mechanisms, typically in less-developed countries, either with or without the help of indigenous knowledge, and with or without compensation. In this way, bioprospecting includes biopiracy and the search for previously unknown compounds in organisms that have never been used in traditional medicine [4]. TK, the questions of how IPR can protect benefit farmers in accessing GR should be answered. Therefore, this study aims to ascertain whether the application of the law on the events complies with the provisions of law or contract.

Materials and methods
The study is carried out by using normative legal research. Normative legal research examines the implementation of the provisions of positive law and contracts factually on any particular legal events. According to Mertokusumo [5], the target of the research is legal norms (rules) to gain: das sollen through research librarianship, as well as events or behaviour in the sense of the fact or the das sein through field research. On the other hand, Soekanto Soerjono [6] argues that legal research includes "normative legal research" that consists of examination of the role of law, the principle of synchronization of law, legal history, comparative law, as well as "empirical legal research" which consist of identification and effectiveness of the regulation.
A qualitative method and juridical analysis are conducted in this study. A descriptive research specification which provides data or image, may be detailed about the people, circumstances and other facts, with the author's descriptive methods can only compare certain phenomena. The specification is used with the goal of obtaining an overview of farmer protection in accessing the global resource. Data collection was performed through interviews and selecction in the form of documents which is sourced from literature, legislation, official documents and other documents. The respective documents could be research results, scientific articles/papers, scholarly journals and scientific papers. This evaluation can generate an overview of the implementation of the IPR and farmer protection in accessing GR. The distributive justice approach is a balance in seeing the excess of IPR protection, especially in the commercialization, access and utilization of GR carried out through biopiracy. The principle of distributive justice is the concept of justice [7] which is closely related to the issue of human dignity, commons good and human rights. The basic question of this distributive justice approach is: what exactly constitutes a "fair", "just" or "equitable" distribution? In the context of using GR, is biopiracy a good thing? Is the utilization and commercialization of the product taken without permission, without the contribution can be justified? How should ABS (www.cbd.int/abs) be carried out (equitable distribution)? This approach brings a different perspective, especially from the angle of protection of the interests of indigenous people, who are holders, guardians of GR that have been utilized without proper contributions and rewards. Differences [8] in the protection of the interests of the private sector (pharmaceutical companies) and the interests of the state as well as in the use of GR also have a major influence on how the problem of using these GR is solved.

Results and discussion
Some countries have formulated disclosure requirements in the patent law, steps which are called transparency, which aims to ensure the proposal from the patented of GR. These countries include: Ratification of the Nagoya Protocol through Law Number 11/2013 by the Indonesian Parliament is one of the opportunities for Indonesia to obtain benefit-sharing arising from of GR. ABS provision is a means offered by the Nagoya Protocol to protect biodiversity, including for Indonesia. The application of ABS provisions in Indonesia can prevent biopiracy. The Nagoya Protocol recognizes state sovereignty in protecting their GR. These GR are not freely traded, but in accessing must meet the The access mechanism is still in the process; profit-sharing is still unclear

No specific regulation No regulation
The effectiveness of the application of ABS provision sharing is not enough by only ratifying the Nagoya Protocol, but should be further detailed with regulations at the national level. Then, in the policy in the field of IPR regulation, the government has also prepared a draft amendment to the Patent Act with a draft amendment to patents, specifically in article 25 of the change to the Law states that "if the invention relates to and, or originates from GR and or TK, it must be clearly and correctly stated the origin of GR and/or TK in the description". By applying the Sources of Origin Country principle, eating is an aspect of dampening the onset of biopiracy. Thus, biopiracy is a form of bioprospecting, where both actions are characterized by two main characteristics: first, the absence of permission to access, and the absence of compensation/rewards that can be given to GR holders related to TK.
Government policy by giving authority to local communities in managing biodiversity is the right choice to avoid community conflict. This authority is a form of appreciation for the contribution of the comunity for conserving biodiversity. Management must also be in line with the mandate in Article 33 of the Constitution and the fifth principle of Pancasila. Conceptually, regulation of the existence of Nagoya Protocol has provided a way for Indonesia to protect abundant biodiversity through ABS.
The international regulation through the Nagoya Protocol stipulates specific guidelines and conditions to access to genetic or biological resources. For example, access should be subject to prior informed consent of the party or country providing the resources (state of origin of the resources or a party that has acquired the resources following the CBD). Further, the so-called TK plays a vital role in local communities through constant development and exchange. Access to this knowledge is also subject to similar procedures, but with the participation of the holders of such knowledge. Hence, the benefits from the utilization of biological resources are supposed to be shared in a fair and equitable way through MAT, including non-monetary gain. For example, the French Centre for Agricultural Research for Development (CIRAD) promotes advantages, such as research collaboration, training, transfer of technology, co-publication, co-ownership of results, and hence the regulatory mechanisms on ABS may represent a useful tool to stimulate research cooperation. A MAT can be signed without reference to the ABS provision in the CBD or the Nagoya Protocol. However, as more than 30 countries are parties to these treaties, there are several advantages of reffering to the Nagoya Protocol ABS-components in the MTA, there is a higher degree of security as the legal basis for the MTA improvements. Therefore, legal sanctions may be avoided and the capacity to obtain a Certificate of Origin to publish increases. IPR may also be easier to agree, and the ethical basis of the MTA will be ensured.
There are many reasons why MTAs are growing its importance. The informal exchange among farmers built upon TK is less typical today than it was before. Knowledge creation and innovation increasingly take place in the context of systematic research and research cooperation across countries. In this process transfer of biological or genetic materials is not only common, but also grows in volume and importance in line with the increasing importance of the bio-economy and attention given to biodiversity, climate change, food security and other challenges. The frontier between basic and commercially oriented research is becoming blurred, and the global organization of, e.g. drug development induces complex divisions of labour in clinical trials with implications for the transfer of GR. One of the purposes of these international treaties is to create conditions to facilitate access to GR. However, today MTAs cannot be understood without the context of international treaties and national regulations. They may amount to restrictions impeding research and development. This is a continuous balancing act. Therefore, these are necessary to ensure that developing countries, typically being the providers of materials and biodiversity, can benefit from the exchange and transfer of biological materials.

Conclusions
Patents can be used as economic support and utilization of GR. However, the license also opens up opportunities for abuse from its use. Legal protection for the usage of GR and TK is to provide a foundation for their recognition TK with easy-access permits and fair distribution of the benefits TK. Equitable benefit-sharing is then implemented in MAT. The rights of farmers include the right to store, use and exchange and sell seeds, protection of TK, participation in making decisions and fair ABS. The utilization and access of GR and TK involve the participation of indigenous peoples in granting permits. TK Fair distribution of benefits is based on contractual relations, of which, the role of government as a legal subject of international agreements becomes crucial to guarantee rights indigenous peoples and farmers in terms of the use of GR and TK.