Thailand Law Journal 2009 Spring Issue 1 Volume 12

In order to improve the protection of TK nationally and internationally, the following recommendations should be taken into account.

The law may confer an automatic right on the owner, holder or occupier of TK to prohibit the use of such knowledge without authorisation. The only condition for the protection is that the owner has to prove that the informal knowledge has been created by members of any national local community and passed down from generation to generation.

3. However, a system of automatic protection is likely to cause a lot of problems. Though the protection is easy to obtain, it does not solve problems relating to identification of the actual owner, conflicts of rights between different communities and/or between owners, and demarcation between the protected knowledge and the knowledge in the public domain. A registration system has several advantages, but requires that the government set up the systems for registration and documentation of TK. TK is to be registered with the State authority. However, the law needs to lay down several criteria, including criteria for determining what is registrable knowledge, who has the right to file an application, who will become the right holder, the term of protection, access to bio-resources, etc.

4. Local communities should be regarded as the rightful holders of TK. The reasons for the establishment of community rights are as follows: (i) the recognition of community rights is viewed as an important national responsibility to acknowledge the role of local communities in creating, maintaining and enhancing the informal knowledge system; (ii) TK is generally regarded as the common property of the community; and (iii) community rights would facilitate maintenance and enhancement of the knowledge for communal interest.

5. Other legal instruments such as contractual arrangements could essentially complement a sui generis law (though they can also be used in the absence of any specific law). MTAs can be used to lay down rights and obligations of the parties in relation to the bioprospecting activity and the transfer of TK. It is recommended that the State set up guidelines and minimum requirements for negotiation and conclusion of MTAs. National guidelines of MTAs may stipulate the terms and conditions for the use of TK for both non-commercial and commercial purposes. The following terms and conditions are to be included: parties to the contract, effective date, definitions, purposes of use, permitted areas of activities, grant of rights, territory, duration of contract, payments and royalties, IPRs, confidentiality, termination of contract, governing laws and dispute resolution, etc.

6. The publication of TK and TK would make the published information part of the public domain and affect patentability of such information. This kind of documentation system not only helps maintenance and preservation of TK, but also enables patent examiners to check for prior art in the form of native knowledge as the knowledge has been compiled in an easily accessible form. The database system would also facilitate equitable benefit sharing, improvement of the use and quality of TK, etc. For this reason, developing countries are urged to set up a TK database system so that the recognition of such traditional and indigenous knowledge would be enhanced. However, important questions regarding whether the database system should be laid open to the public, how the use of such database could be supervised, how the benefits derived from application of the database would be shared, and what legal rights for the protection of database should be conferred, are left for each nation to solve according to its national priorities and preferences.

8. As noted previously, TK has now become more and more significant. However, the existing framework for international protection of IPRs (TRIPS), has failed to accommodate and protect the interests of TK owners. In order to improve the protection of TK internationally, the following should be taken into account. First, it is now important to amend the international legal framework if only in a gradual way. For any improvement to be possible, it should be in the framework of the WTO. Secondly, the new world order regarding the protection of intellectual property must take the special needs of the developing countries into account. International norms and standards for TK protection should be seen as an important landmark not only for those countries to achieve the goal of self-sufficiency, but also for allowing them to be able to realise additional gains from their traditional innovation.

9. Protection of TK that may be available in any one country, as sui generis rights, will not be enforceable outside the State that accords and recognises such rights. Thus, the only solution is to have a binding international arrangement on the issue. In order to prevent biopiracy, TRIPS should be amended to provide that WTO member states must require, as a condition to acquiring patent rights: (i) disclosure of the source and country of origin of biological resource and of TK used in the invention; (ii) evidence of PIC through approval of authorities under the relevant national regimes; and (iii) evidence of fair and equitable benefit sharing under the national regime of the country of origin

This article is published with the kind permission of Jakkrit Kuanpoth, Senior Lecturer, Faculty of Law, University of Wollongong, Australia. This article originally appeared in the Intellectual Property and International Trade Law Forum Special Issue 2007 10th Anniversary.