Thailand Law Journal 2009 Spring Issue 1 Volume 12

Protection of Traditional Knowledge in the Face of Globalisation: Balancing Mechanism between CBD and TRIPS

Jakkrit Kuanpoth [FN1]

Nowadays, some governments around the world place a high priority on traditional knowledge (TK), as well as biological resources. For example, wider use of traditional and herbal medicines is being promoted in many countries. The United Nations Development Programme’s report estimates that over 7,000 medical compounds widely used in modern medicine - from aspirin to birth control pills – are isolated from plants.¹ About seventy-five percent of all medical compounds can be linked with TK of indigenous people in developing countries.²

As with other tangible and intangible properties that are inseparable but closely linked, there is a bundle of relationships between living resources such as plants, animals and microorganisms, and TK relating to applications of those resources.³ Access to TK can help research-based companies to discover, isolate and/or synthesise useful substances in their laboratories. Collecting and extractive activities (i.e. “bioprospecting”) carried out by multinational companies are described as “the search of wild diversity for valuable genetic information.”⁴

Often, customary and informal knowledge has been made publicly available and exploited without adequate compensation, and occasionally it has been claimed as intellectual property rights (IPR) of researchers or companies. Such illicit and uncompensated appropriation of TK is exploitative and is cause for concern among developing country governments as well as among indigenous and local communities.⁵ Currently, TK and native species are an issue which arouses strong feeling, and when the knowledge and resources are utilised and claimed by multinationals, major questions of national policy and equity are raised.⁶

The paper begins by reviewing the contrasting concepts under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and CBD. It will then explore the issues and problems of how the current legal systems could be exploited to protect the customary knowledge and how a specific legal regime for this purpose may be effectively instituted and operated. Attempts of Thailand to protect its TK are discussed in the final part to illustrate the way TK is protected. Salient points under the two sui generis laws that have been adopted in Thailand are highlighted.

I. International Agreements Relating to Traditional Knowledge and Biological Resources: Convention on Biological Diversity and WTO/TRIPS Agreement

Although a country may establish legal rights or legitimise community rights over ethnobotanical knowledge, such rights will not be enforceable outside the State. The problem could arise when a researcher obtaining a sample of raw biological materials from a source country and then taking it out of the country. The sample can be studied, developed, extracted, or purified leading to derivative products such as a new useful medical compound which may later on be patented in many countries (possibly including in the source country).⁷ The latter case is worse from the perspective of TK owners, as they might be precluded not only from practicing the methods prescribed in the patent claims, but also from developing the TK into a new and useful product or method.

Since legal protection of TK is essentially territorial, the knowledge which is protected in one country might not get the same treatment in another country. The only solution is to have specific international arrangements on the issue. It is rather unfortunate that no binding international arrangement protecting TK has so far been concluded. The possible conflict of interest between developed and developing countries is the main obstacle for the adoption of international norms and standards for TK protection.⁸

CBD and WTO, which administers the TRIPS Agreement, are two major international bodies dealing with TK. Issues of TK protection at the two forums are now summarised

* Senior Lecturer, Faculty of Law, University of Wollongong, Australia
UNDP (1999) “Human Development Report”, New York. See also Crucible Group (1994) “People, Plants and Patents: The Impact of Intellectual Property on Biodiversity, Conservation, Trade and Rural Society”, International Development Research Centre, Ottawa.
2 UNDP, ibid.
3 Nijar, G.S. (1995) “Developing a ‘Rights Regime’ in Defence of Biodiversity and Indigenous Knowledge, Third World Network, Penang, p.4.
4 Bourgasser-Ketterling, S. (2000) “Bioprospecting on Public Lands: Should Private Companies Compensate the Government for Their Use of Public Land Resources?”, Journal of  Law & Policy 8: 481at 482.
5 Kuanpoth, J. (2005) “Closing in on Biopiracy: Legal Dilemmas and Opportunities”, in Meléndez-Ortiz, R. and V. Sánchez (eds.), Trading in Genes: Development Perspectives on Biotechnology, Trade and Sustainability, Earthscan, London, pp.139-152.
6 Roht-Arriaza, N. (1996) “Of Seeds and Shamans: The Appropriation of the Scientific and Technical Knowledge of Indigenous and Local Communities”, Michigan Journal of International Law 17: 919 at 930-931.
7 Gollin, M.A. and S.A. Laird (1996) “Global Policies, Local Actions: The Role of National Legislation in Sustainable Biodiversity Prospecting” Boston University Journal of Science & Technology Law 2: 16.
8 Kuruk, P. (1999) “Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa and the United States”, American University Law Review 48: 769 at 774 footnote 29

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.