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Thailand Law Journal 2009 Spring Issue 1 Volume 12

2.1 Private property and common heritage of humanity

The idea of “common heritage of mankind” encourages the policy of free exchange and free flow of TK and biological resources. For example, when this concept is applied to biological resources such as medicinal plants, the resources become unrestrictedly available to everyone. Countries are required not to restrict access to the resources found in their territory so that the resources could be used without restrictions by researchers and scientists throughout the world. The free exchange model, it is claimed, provides unlimited access to the resources and encourages medical and agricultural research in both public and private sectors, which helps to increase food production and supply, and to combat life-threatening diseases.

Nevertheless, the idea of open and unlimited access has worked to the disadvantage of many developing countries. Although the modern innovators may claim benefit from turning an obscure traditional and indigenous knowledge into a drug or a wild or landrace species into an agricultural crop, most people in the developing world consider this kind of practice incomprehensible and reprehensible. While pharmaceutical and biotechnology companies in developed countries can claim IPRs over research results or modifications of biological resources, developing countries and their local communities, who help to supply the resources and the associated TK for laboratory research, are barred from asserting any right over the resources and from claiming adequate and fair compensation. In addition, it is most likely that developing countries and local communities will lose control of their valuable assets to the outsiders due to IPR protection.

2.2 Objectives of protection

The objective of TK protection is different from that for protection of IPRs. Unlike the economic rationale for IPRs, any envisaged system for protecting TK and biological resources should not be aimed at conferring monopoly rights that may lead to commercialisation of the knowledge and resources, but should provide means for acknowledging the historic and continuing role of indigenous and local communities for their conservation efforts and protecting the knowledge and resources from being exploited or patented by the outsiders.¹⁵

The protection of TK can be viewed as part of the efforts for environmental conservation. Informal knowledge and biological materials are deemed as valuable resources for the international community and held in trust by communities.¹⁶ Due to the lack of official recognition, it is believed that TK is being lost at an alarming rate, along with the continual erosion of biodiversity.¹⁷ Biological materials with high potential are generally the targets for commercial collection; every year such resources are harvested in large amounts for commercial and industrial production. The heavy and unsustainable extraction and collection of such materials has caused severe damage and has depleted biodiversity.¹⁸

Since TK is not only the result of intellectual creation but also an integral part of the cultural heritage, the protection of TK may also be viewed as recognition of human and cultural rights. For its holders, the rights over TK will ensure their enjoyment of the right to maintain and take part in cultural life.¹⁹ According to Professor Michael Blakeney,

“… indigenous peoples do not view their heritage as property at all - that is something which has an owner and is used for the purpose of extracting economic benefits - but in terms of community and individual responsibility. Possessing a song, story or medicinal knowledge carries with it certain responsibilities to show respect to and maintain a reciprocal relationship with the human beings, animals, plants and places which the song, story or medicine is connected. For indigenous peoples, heritage is a bundle of relationships rather than a bundle of economic rights.”²⁰

The rights over TK are recognised by major international human right instruments, as well as international customary law.²¹ All of these recognise that people have a right to have their culture and property, including IPRs protected. Arguably this right would cover local communities’ traditional intellectual creations.²² The principle of self-determination under both the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights could also be relevant to the claims of local communities over their TK systems. Kuruk supports this interpretation by arguing that:

“… provisions on self-determination could be used by certain minority groups who are also fighting for political independence to support their right to control and dispose of their cultural resources, including plants that may be of commercial interest.”²³

In sum, the urgent establishment of systems for legal protection of TK is required for the following reasons:

To acknowledge the continuing role of traditional practitioners and communities in creating, conserving, enhancing and maintaining the knowledge and biological resources;

To preserve elements of cultural heritage and to ensure that vital knowledge will not disappear;

To provide adequate incentives to communities so that they can contribute and continue managing, conserving, enhancing, and maintaining TK and biological resources;

To integrate biological resource management with national economic and social development planning;

To allow local communities and traditional practitioners involved in the TK to be compensated for the exploitation of TK and biological resources;

To provide ecological understanding and social meaning regarding traditional practices.

15 Crucible Group, op.cit. note 1, at p.34.
16 Urbanski, A. (1995) “Chemical Prospecting, Biodiversity Conservation, and the Importance of International Protection of Intellectual Property Rights in Biological Materials”, Buffalo Journal of International Law 2: 131 at 179.
17 Downes, D.R. (2000) “How Intellectual Property Could Be a Tool to Protect TK”, Columbia Journal of Environmental Law 25: 253 at 255.
18 Urbanski, op.cit. note 16, at p.178.
19 Downes, op.cit. note 17, at p.225.
20 Blakeney, M. (1999) “Intellectual Property in the Dreamtime- Protecting the Cultural Creativity of
Indigenous Peoples”, Oxford Intellectual Property Research Centre, Research Seminar, 9 November 1999.
21 Along with modern IPRs, TK of many indigenous and local communities has been recognised as part of human rights either by international human rights instruments (such as the Universal Declaration on Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the UN Draft Declaration on Indigenous Rights). International human rights law has expanded the natural right concept to TK and the owners of such knowledge shall have the right to control and protect their TK.
22 Yamin, F and D.A. Posey (1993) “Indigenous Peoples, Biotechnology and Intellectual Property Rights”, Review of European Community & International Environmental Law 2: 143.
23 Kuruk, op.cit. note 8, at 836.

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.