Thailand Law Journal 2009 Spring Issue 1 Volume 12

In some countries, traditional knowledge is recognised as:

all the intangible elements associated to the commercial or industrial use of local varieties and other endogenous material developed by local communities, collectively or individually, in a non-systematic manner and that are inserted in the cultural and spiritual traditions of those communities, including, but not limited to, knowledge relating to methods, process, products and denominations that are applicable in agriculture, food and industrial activities in general, including handicrafts, trade and services, informally associated to the use and preservation of local varieties and other endogenous and spontaneous material that is covered by the present law.¹²

Intellectual property laws specifically emphasises intangible elements. Tangible elements or properties are generally protected under national law enforcement. Thus, this law aims to protect traditional knowledge by intellectual property regimes. However, national laws may not adequately protect intellectual property rights from international biopiracy.

The World Intellectual Property Organization (WIPO) has considered the role of intellectual property systems in the preservation, protection and equitable use of traditional knowledge. The issue has received increasing attention in international policy discussions concerning food and agriculture, the environment, the conservation of biological diversity, health (including traditional medicines), human rights and indigenous issues, and aspects of trade and economic development.¹³ In the intellectual property context, WIPO provides that ‘traditional knowledge is analysed into defensive and positive protection. Defensive protection is a measure which ensures that intellectual property rights over traditional knowledge are not given to parties other than the customary traditional knowledge holders. Positive protection is a measure to create positive rights in traditional knowledge that empower traditional knowledge holders to protect and promote their traditional knowledge’.¹⁴ However, the protection of traditional knowledge issue is still debate in WIPO and various international forums.

WIPO suggests that ‘no single definition would fully do justice to the diverse forms of knowledge that are held by traditional communities; and no form of legal protection system can replace the complex social and legal system that sustain traditional knowledge within the original communities’.¹⁵ The lack of a suitable definition is not sufficient argument for lack of protection. Although the protection is based on its definitions, it does not mean that without a universally accepted definition the protection under intellectual property rights could not be made. A system for legal protection may be designed after reaching a satisfactory definition. In reality it is not necessary to protect all kinds of traditional knowledge. The protection should cover the critical fields and apply directly to indigenous peoples or local communities.

Traditional knowledge includes all fields whether they be artworks, handicrafts, folklore, environmental preservation, medicinal plants, products and processes in medical treatments and whatever knowledge that benefits the communities. The knowledge is transferred through individuals, families or groups of people in the community. Some knowledge might become known in the public domain for the use or benefit of the community. It might be exchanged and developed between communities and migrated from community to community by marriage, trade and warfare between communities or tribes.

WIPO has focussed on protecting the use of knowledge, such as traditional technical know-how, traditional ecological, scientific and medical knowledge. WIPO has termed these ‘traditional cultural expressions (TCEs) or expressions of folklore’.¹⁶

At present, there is no universally accepted definition of traditional knowledge.¹⁷ The lack of agreed legal definition of traditional knowledge, folklore or genetic resources has presented problems for many international forums and non governmental organisations (NGO) examining traditional knowledge, genetic resources and folklore protection issues.¹⁸

Traditional knowledge has a number of dimensions that make a superficially simple concept difficult to define and apply. Traditional knowledge is a broad concept that can be thought of as knowledge of plants and animals and how these plants and animals can be utilised in medical treatments and as a source of food or nourishment.¹⁹ Despite definition conflicts, there are some emerging concepts that have international consensus.²⁰

Whether traditional knowledge is commonly accepted or not, it is an intellectual activity created, innovated or discovered in all fields, such as artistic, literary, industrial, scientific, medical and agricultural fields. Next we will consider the related term indigenous knowledge.

This article is published with the kind permission of Panumas Kudngaongarm, Professor, Ph.D. Candidate, School of Law, the University of New England, Australia. (Lecturer, School of Law, Sukhothai Thammathirat Open University, Thailand.). This article was presented at the Inaugural Conference of the Asian Society of International law: International Law in Asia-Past, Present and Future.