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Thailand Law Journal 2009 Spring Issue 1 Volume 12

Furthermore, the plant variety protection law includes a section that is exclusively devoted to facilitating access to plant genetic resources.35 The law requires those who seek to collect, procure, gather or use plant varieties or any part of the plant varieties found in Thailand to apply for a licence from the relevant government authority. The Ministry of Agriculture is in charge of implementing the law and has established a procedure for the submission of access applications. The permit licence can be issued subject to certain conditions, one of which is that a benefit-sharing contract be signed between the applicant and the government agency. The law requires the profit-sharing agreements to contain the following terms and conditions:36

  • the purposes of bioprospecting,
  • the amount of samples intended to be collected,
  • the obligations of the applicant and the collector,
  • the intellectual property rights over inventions or plants developed or derived from the plant varieties collected,
  • the percentage of income to be shared between the contract parties,
  • the term of the contract,
  • the termination of the contract,
  • the dispute settlement procedure, and
  • other clauses stipulated under any relevant ministerial regulations.

The scope of application of the access provisions covers all types of plant genetic resources found in Thailand, including landrace, wild species, plant genetic material, etc. However, it applies to bioprospecting of plant varieties for commercial research or study with commercial purposes only. It does not adversely affect the rights of people to exploit the plant in traditional means. Those who want to use plant varieties found in Thailand for the purposes of research, study, or breeding without commercial interest are still required to obtain an access licence from the Ministry of Agriculture but they are not obliged to sign a benefit sharing contract due to the non-commercial nature of the proposed activity.37

The Plant Varieties Protection Act also enables the establishment of a plant variety protection fund, to which the income and royalties accruing from benefit-sharing agreements and from the registration of plant varieties will be remitted.38 The fund then will be used for supporting plant breeding, research and development, and biodiversity conservation in the country.

3.1 The Act on Protection and Promotion of Thai Traditional Medicinal Knowledge, B.E. 2542 (1999)

In 1999, Thailand adopted a law to protect TK in the field of medicines. The Protection and Promotion of Thai Traditional Medicinal Knowledge Act 1999, which is under the supervision of the Ministry of Public Health, lays down conditions on access to herbs and biomedicinal resources and Thai traditional medicinal knowledge. The law establishes the rights of traditional healers to retain control over traditional medicinal knowledge through public registration.39

The Act separates traditional medicinal knowledge into two types: traditional medicinal formulations and medicinal herbs. Regarding the former, the law divides traditional formulations into three types:40

  • general formula,
  • national formula, and
  • personal formula.

The “general formula” of TK is the knowledge that is already in the public domain and is free for everyone to use. It includes traditional medicinal knowledge that has been widely used and widely available to the public. It also includes the medicinal formula of which patent protection has expired. This type of TK is equivalent to the knowledge in the public domain under the general IPR concept.41

According to the Act, the Ministry of Public Health has authority to announce a certain formula of Thai TK as a “national formula”. The traditional medicinal formula announced must be of significant benefit or has special medical value. The announcement means that the State has declared the announced formula as the State property. Anyone who wants to use the national formula for commercial purposes must receive permission from the government official. Prohibited activities include production of commercial drugs or the use of the formula for research and development with commercial interest.42 The law makes it criminal for any person who violates this provision. A conviction may result in a substantial fine, a one-year jail term or both.43 The Ministry of Public Health is authorised to adopt regulations regarding the criteria and procedures for authorisation and permission in this regard.

35 Ibid., Chapter 5.
36 Ibid., Section 52.
37 Kuanpoth, J. (2000) “Protection and Management of Plant Genetic Resources and Traditional Knowledge in Developing Countries” Thai Bar Law Journal, Vol. 56 No. 3 September, pp. 26-68 (in Thai).
38 The Plant Varieties Protection Act, B.E. 2542, Section 3.
39 Ibid., Section 47.
40 Ibid., Chapter 5.
41 Ibid., Section 52.
42 Ibid, Sections 17 and 19.
43 Ibid., Section 78.
 

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.

 

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