Protection of Traditional Knowledge in the Face of Globalisation: Balancing Mechanism between the Convention on Biological Diversity (CBD) and Trade-Related Aspects of Intellectual Property Rights(TRIPS)

A private or personal formulation of Thai traditional medicinal knowledge can be registered under the Act. The people who are eligible for registration of a “personal formula” include:

The Thai Act provides for the examination of the application as to substance. If it appears that the application for registration does not comply with the rules and procedures or that the claimed formula is not registrable (e.g. the formula is a national formula or has been registered as a personal formula by another person), the registrar may reject the application.

The Act affords exclusive rights by allowing the owner to use the registered personal knowledge for research and to sell and distribute any product developed or manufactured by using the registered medicinal formula. However, the law lays down certain limitations to the exclusive rights. The legal rights may not be enforced against: (i) academic research and experimentation without commercial interest, (ii) preparation of medicines by traditional healers, and (iii) production of drugs for household use or for use in State hospitals.⁴⁵

The rights over a registered TK subsist throughout the life of the owner and continue to subsist for a further period of fifty years from the death of the owner.⁴⁶ One of the main objectives of the sui generis protection is that the exclusive monopoly granted by the State should enable the owners of traditional medicinal knowledge to be adequately compensated for their contribution. However, it is not always easy to determine the best possible duration of protection. A long term of protection would provide the owners the freedom to exclude other from benefiting from the protected information. In contrast, a very short term of protection may not allow the owner to earn benefits from the protection. A crucial problem is: how long should an appropriate term of protection be? In Thailand, there has been no thorough economic analysis to determine an optimum duration. The term of protection under the Thai Traditional Medicinal Knowledge Act was adopted in line with the copyright duration. It remains to be seen whether such a long period of protection will create an unnecessary burden on society or provide unreasonably large profits for the TK owners.

The Thai Traditional Medicinal Knowledge Act imposes use restrictions over herbs and biological medicinal resources. The Ministry of Public Health has authority to put a plant or herb it considers at high risk of extinction on the extinction list. No one is entitled to use listed plants or herbs without proper authorisation from the authority concerned.⁴⁷ The law also adopts a legal framework for conserving herbs and biomedicinal resources. It recognises in-situ conservation as part of biodiversity conservation. The Ministry of Public Health is required to adopt a conservation plan called “a plan for conservation of herbs”. The plan must lay down short-term and long-term strategies for conservation of herbs and medicinal plants, as well as for conservation and restoration of the area from which they originate.⁴⁸

The importance of legal protection of TK is increasingly crucial due to the growing commercial value of ethnobotanical knowledge, the increasing rate of biopiracy, and the disappearance of the TK base though acculturation and other processes including erosion of biodiversity. Since the informal knowledge system is under real and potential threat from businesses that seek to benefit commercially, there is currently pressure to recognise and respect the rights related to TK in the common interests of indigenous and local communities.

There have been so far no binding international legal instruments directly dealing with TK. CBD is the only major international convention that assigns ownership of biodiversity to the State and asserts the communal rights to protect TK, but it fails to lay down details and standards of TK protection. The existing framework for international protection of IPRs (i.e. WTO/TRIPS) has failed not only to accommodate and protect the interests of TK owners, but also to prevent biopiracy of the knowledge. Because of the limitations of IPR law, it is imperative to identify alternative methods of protecting this type of informal knowledge. Advocates suggest several alternatives ranging from radical revisions of conventional IPR systems to the complementary use of general laws such as contract law, unfair competition and passing off, etc.⁴⁹ However, those laws that do not deal specifically with the TK will have the same limitations as other systems of IPRs. It is therefore advisable to adopt a sui generis legal system, which would be far more effective in the long run than relying on existing unsatisfactory legal regimes.

The proposed form of protection should have objective of returning benefits to communities that have been custodians of TK over generations. This form of a sui generis system must be directed to protecting existing knowledge and has to be built upon foundations of communal rights. Indigenous and local communities and traditional practitioners are to be accorded the rights to control the use of and receive benefits from TK and biological resources.

Thailand Law Journal 2009 Spring Issue 1 Volume 12