Thailand Law Journal 2011 Fall Issue 2 Volume 14

In this regard, traditional medicine practitioners (personnel in Thai traditional medicine, pharmacy, midwife and applied Thai traditional medicine practitioners, such as massagers) are also controlled by the Drug Act B.E. 2510 (1967) and the Art of Healing Act B.E. 2542 (1999).⁶⁰ Those practitioners have to register with the Division of Medical Registration, Department of Medical Service Support, Ministry of Public Health.⁶¹ The professional license will be granted to the qualified practitioners.⁶² In addition, the authorised agency as mentioned above is also responsible for the consideration of professional misconduct of traditional medicine practitioners (if any).⁶³ Furthermore, the Ministry of Public Health also controls the curricula of the institutions which provides teaching and practicing of Thai traditional medicine.⁶⁴ It is simply say that traditional medicine in Thailand has been controlled in three main aspects including traditional medicinal products, traditional practitioners and the traditional medicine curricula of academic institutions.

As mentioned earlier, traditional medicine has long been controlled and protected under the laws concerning consumer protection in most countries. However, the protection of traditional medicine in the view against biopiracy or misappropriation has just begun in the past decades.⁶⁵ Thailand is one of the leading countries to enacted laws particularly for the protection of traditional medicine, the Protection and Promotion of Thai Traditional Medicine Intelligence B.E.2542 (1999) and related laws, such as the Plant Varieties Protection Act B.E. 2542 (1999). The protecting measures will be analysed in the following topics.

At present, Thailand has no specific law for protecting the Thai local intelligence. However, the Department of Intellectual Property, Ministry of Commerce is the responsible government agency (hereafter referred to as 'DIP') which endeavors to draft the law to cover all of Thai local intelligence. The DIP together with the Focus Group organised the official conferences on drafting the law for the protection of Thai local intelligence in 2006 and 2007.⁶⁶ Unfortunately, these issues seemed unlikely to be finalised within the foreseeable future.

Although a simple legislative framework covering all of Thai local intelligence has not been enacted, there are at least some finalised acts of local intelligence that need to be protected. There are in three main areas, traditional knowledge, expression of folklore and genetic resources.⁶⁷

In the sense of the DIP, traditional knowledge includes local cultural arts (indigenous or local performances, crafting, manual workmanships and other significant native traditions), traditional or native nutrition (native foods and beverages), traditional medicine (formulae and texts on traditional medicine, medicinal herbs and medicinal knowledge derived from traditional practitioners) and traditional agriculture (traditional knowledge in agriculture, such as agricultural devices, local technology for harvesting and native pesticide control).⁶⁸ The expression of folklore included artistic, literary, music, manual work and ritual⁶⁹ while the genetic resources include plants, animals and micro-organisms.⁷⁰

It should be noted that the DIP considers Thai traditional medicine is a subset of traditional knowledge, which accumulates into the meaning of 'Thai local intelligence'.⁷¹

However, while the law for the protection of the Thai local intelligence is being promulgated the DIP enacted the regulation concerning the establishment of databases on hai local intelligence in November B.E.2545 (2002).⁷² This regulation aims to collect the information of the Thai local intelligence as a reference databank. According to this regulation, the local intelligence that may be recorded is the knowledge of the local community in the sector of food and beverage productions, the products derived from medicinal herbs, the products derived from wasted materials and the products made by wood, stone, metal, glass, ceramic, earth, leather and other similar materials.⁷³ In addition the expression of folklore may also be recorded, such as folk tales and poems, folk songs and music, folk dances and drama, and native art, sculpture, costume and the pattern designed in local textile.⁷⁴

In this regard, the knowledge holder, which may be an individual or the community, will receive the certificate of informing as implied evidence of ownership. It is noted that this regulation is particularly aimed to establish the databank of Thai local intelligence prior to the law for protecting the Thai local intelligence will be enacted, thus it provides only the procedure of recording the Thai local intelligence without mentioning the rights of the holders. By the way, any person may submit a request to the authorised officer for searching this information free of charge.⁷⁵

With respect to the policy of the DIP'S policy on the accumulation of the Thai local intelligence and open freely to be searched by anyone, the DIP may overlook the dark side of the free access of this information because it may contribute to misappropriation or biopiracy. This is because this regulation has not provided any protection measures of the rights of the holders in case of infringement.⁷⁶ Moreover, the regulation (Attached form PB.01, no.6) has mentioned that the applicant is needed to certify the information could be disclosed and would not be protected subject to law.⁷⁷

Thus, with respect to the DIP's policy on this Order, the applicant, either an individual or the community, who owns traditional knowledge would not receive any benefit from this record unless there is a certificate of recording from the DIP. Its value⁷⁸ seems like the public information for services to everyone, that they do not necessarily go to the library or traditional knowledge origins. In this regard, the DIP may be confused regarding its function particularly the databases on traditional knowledge, which normally is accessed only by the authorized agencies, such as patent issuing agencies. In comparison with the AU Model Law, that established the National Information System for disseminating the information to the relevant bodies concerning patent issuing agencies, such as USPTO, or relevant international organisations.⁷⁹

In this connection, it is important to bear in mind that the theme of establishment of the database of traditional knowledge information (as prior art) was to protect the rights of local traditional knowledge holders and to protect against misappropriation or biopiracy.

Another main obstacle of the drafting of legislation on the protection of the Thai local intelligence is the areas to be protected are involved with several government agencies and some agencies may lack understanding of the intellectual property and traditional knowledge protection.⁸⁰ Thus, since the meetings of the Focus Group of the Government agencies, NGOs and related agencies in Thailand on 2nd and 26th May B.E. 2549 (2006) on drafting of the Act concerning the protection of the Thai local intelligence,⁸¹ it is yet to be developed as it should.

Thailand has attempted to enact a specific law for the protection of traditional knowledge, expression of folklore and genetic resources, however it seems to take a rather long time to be established. Therefore, currently, Thai traditional knowledge still spread around the country without protection by specific law or sui generis system unless traditional medicine is seen as a subset of traditional knowledge.

Traditional medicine is the only traditional knowledge or Thai local intelligence that has been protected by sui generis system (the Protection and Promotion of Thai Traditional Medicine Intelligence B.E. 2542 (1999)). However, Thai genetic resources are also protected under the existing laws, such as the Forestry Act B.E. 2484 (1941) and amended B.E. 2532 (1989), the Fishery Act B.E. 2490 (1947), the Wild Animal Reservation and Protection Act B.E. 2503 (1960) and amended B.E. 2535 (1992), the National Park Act B.E. 2504 (1961), the Reserved Forest Act B.E. 2503 (1960), the Plant Variety Act B.E. 2518 (1975) and amended B.E. 2535 (1992), the Patent Act B.E. 2522 (1979) and amended 2535 (1992), the Plant Variety Protection net B.E. 2542 (1999) and the Protection and Promotion of Thai Traditional Medicine Intelligence B.E. 2542 (1999).⁸²