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)

This form of contractual arrangements is widely used by research institutions and the biotechnology industry for the transfer and the sharing of biological materials. In developed countries, the use of MTAs has facilitated collaborative research and development in the field of biotechnology. Though not envisaged to serve as a mechanism to prevent biopiracy by outsiders, these forms of contract could potentially help TK owners to benefit more from the commercial use of their knowledge. They also help to establish a legal framework for the transfer of TK and for regulating bioprospecting.³⁰ Since a biodiversity contract is negotiated and signed on a voluntary basis, the government agency or the local community should be required to enter into a contract based on terms and conditions constituted under the national guidelines.

Note that some critics disagree with the use of private contracts governing bioprospecting. The use of MTAs has been criticised on the following points:³¹

MTAs have the advantage of allowing the parties to side step State regulations, since the consenting community may negotiate directly with the bioprospector on its own behalf. But in practice there is a large gap in knowledge and bargaining power between the parties, even when the government authority is acting as the contract party. The difference between the parties in terms of resources, abilities to bargain and to enforce the provision of the contract will not allow the providers to gain equitable benefits from the use of their knowledge.

The lack of necessary information, such as information concerning the potential commercial value of the TK, will prevent the providers from gaining maximum benefit from the deal.

Contractual arrangements may cause social disruption and divisions among local communities. Since the same biological material or traditional information can be found in several different communities, the collector could “play one community against another for the most favourable terms.”

The benefits derived from TK may not go directly to the source community but to an agency authorised under the contract to be the distributor of the profit. In this case, the consenting community may lose control over the amount and distribution of the compensation, since such agency can distribute the profit to the community at the sum that it sees fit.

2.8 Specific problems concerning protection of TK and biological resources

There are some issues and problems that may arise when the TK and biological resources are protected:

Sui generis legislation is likely to contain certain definitional deficiencies. One problem concerns the absence of criteria for identifying the social group relevant to the formation of TK (e.g. indigenous and local communities).

A related problem is the nature of the practices required to classify a particular piece of knowledge as TK which can be protected under the sui generis system. No guidelines as to what kind of knowledge will constitute as TK have been developed yet.

Related to this problem is the question of the territorial division among local communities. Conferring rights over TK on indigenous and local communities might pose problems with identifying the proper communities entitled to control the use of the knowledge.

Another prominent problem concerns the control of the use of knowledge abroad when the knowledge can be accessed by outsiders or even through a member of the community. Under the law of most countries, since informal knowledge is considered part of the public domain, it is unclear how and to what extent the relevant government agency can assert the rights on behalf of its respective traditional practitioners or local communities.

An equally important question is how revenues derived from either the use of TK or from the damages received in infringement actions could be shared among the parties involved (i.e. sharing between the State and a community, among different communities, and between a community and its member). The legislation should incorporate methods for disposing of revenues or damage awards among local communities, as well as between the communities that have claims to TK and traditional practitioners who are the custodians of such knowledge.

Thailand’s first patent law, called the “Patent Act B.E. 2522”, was adopted and came into effect on 12 September 1979. Subsequently, in February 1992, Thailand, under pressure from the US Government, decided to revise the Patent Act in order to avoid trade sanctions. The Patent Act B.E. 2535 was adopted, and it amended the previous law in several areas including an expansion of the scope of patentable subject-matters, an extension of the term of patent rights, the establishment of a drug price review committee, and the modification of the process for the grant of compulsory licenses.

When the new Thai patent law was introduced, it extended protection to food, beverages, agricultural machinery, and pharmaceutical products. Regarding the protection of biotechnological inventions, no patent would be granted to any variety of animal or plant, or any essentially biological process for the production of animals or plants. The exclusion was based on two grounds. First, animals and plants, like agricultural machinery, are important for Thai farmers. Patent protection on animals and plants would inhibit farmers from earning a living. Secondly, the special features of plants and animals would create a technical difficulty in the administration of animal and plant patents.

Thailand Law Journal 2009 Spring Issue 1 Volume 12

2.8 Specific problems concerning protection of TK and biological resources