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Thailand Law Journal 2011 Fall Issue 2 Volume 14Thai Traditional Medicine Protection (Part I) At the end of the twenty century the problem of traditional knowledge and genetic resources protection is widely discussed in national and international levels. This interesting issue has long been debated between developing and developed countries. Developing countries claimed that developed countries have misused of their traditional knowledge and genetic resources without their consent, which is considered a form of biopiracy. On the other hand, developed countries argued that such traditional knowledge and genetic resources is in the public domain, and thus it is not biopiracy. Presently, it is generally recognised, and known, that the protection of traditional knowledge and genetic resources has been debated in international forums, such as the WIPO and the WTO. In this regard several developing countries have to find the appropriate legal mechanisms to protect their own resources. The existing intellectual property rights regimes, a new form of intellectual property rights or a sui generis system, have been debated for the protection of traditional knowledge. It is widely recognised that the existing intellectual property rights regimes are not appropriate to protect all subsets of traditional knowledge, even though it can be useful for the protection of some forms of traditional knowledge. It is fact that several biopiracy cases concerning traditional medicines, such as Neem, Turmeric, Ayahuasca and Kwao Kruae, involved acquisition of intellectual property rights without compensation for the traditional knowledge holders. The cases demonstrate that the lack of protection of traditional medicine, as a subset of traditional knowledge, poses a significant problem on international and national levels. Thailand, as one of the rich countries of traditional medicinal knowledge and genetic resources, has to find way to protect these resources. Thai Government provided a sui generis system (by enacting the Protection and Promotion of Thai Traditional Medicine Intelligence Act B.E. 2542) to protect Thai traditional medicine in 1999. However, this Act contains several loopholes, particularly subject matters to be protected, the right holders, duration of protection, transfer of rights and penalties. This paper explores the current situation of Thai traditional medicine protection and the feasibility of devising a revision of this Act. A Background and Problems of Traditional Knowledge (Medicine) Protection in General Over thousands of years, medicinal knowledge has been discovered by indigenous groups and that knowledge is restricted by handing it down within their communities.2 The knowledge has been transmitted through generation to generation and has become traditional knowledge.3 Despite traditional knowledge lacking a precise date of creation and identifiable authors, it is still valuable to the local culture and community. Collective rights predominate over individualized ownership rights.4 The value of traditional knowledge is both cultural and economic. The value is found in agricultural techniques and plant-based medicines.5 Traditional knowledge arises from biodiversity and genetic resources in the local flora and fauna. It has contributed to the profitability of numerous industries. Furthermore, the importance of traditional knowledge, either traditional medicines, indigenous medicinal knowledge6 or herbal plant-based medications,7 have increased over the years with the rise of globalised trade.8 Traditional knowledge, particularly traditional medicine, has played an important role in the world's human health care since immemorial time, for almost 80% of the world's population depends on traditional medicine for their primary health care.9 As reported by the WHO and the other authorities concerned the proportion of the population that uses traditional medicine is 40% in China,10 70% in India11 and 80% in the African region.12 Moreover, the percentages of the population that have used traditional medicine (complementary and alternative medicine), at learf once, are: 90% in the United Kingdom, 75% in France, 70% in Canada, 48% in Australia, 42% in the United States and 38% in Belgium. Additionally, in 1985, the market value of pharmaceutical plant-based medicines sold in the OECD countries13 was estimated at $US 43 billion.14 Biochemist Norman Fransworth15 commented that 119 plant-based compounds used in medicine worldwide, 74% had the same or related uses as the medicinal plants from which they were derived. But, it should be admitted that accurately estimating the full value of TK [traditional knowledge] in monetary terms is not possible'.16 It is acknowledged that, in the meanwhile, plant-based medicines have been used in various conventional medicines. Those conventional medicines were not even informed of the origins of genetic resources or traditional knowledge based medicine because there is not any obligation to be informed of this informaticr1 in the patent application.17 Approximately 13,000 species of plants have been used for centuries in traditional medicine by various cultures around the world.18 Most of them are located in developing countries.19 Traditional knowledge has also been directly and indirectly utilized by the 'modern world' in many forms over time.20 The indigenous peoples around the world are becoming aware of the need for the recognition and protection of their traditional knowledge and plant life through international law.21 While the use of complementary or alternative medicine (non-conventional medicine) is increasing every year.22 What is traditional knowledge? Do we have to protect traditional knowledge, and why? If the protection of traditional knowledge is needed, is it necessary to have a common definition of traditional knowledge and what is the appropriate system to protect traditional knowledge? Those questions have to be clarified for further discussions. On the other hand, it was widely argued that the concept of protection of traditional knowledge should be part of the global common heritage of mankind, freely accessible for use by any person.23 The question of traditional knowledge protection has had worldwide debated since the beginning of twentieth century. Currently, there is no specific intellectual property right for the protection of traditional knowledge, particularly in the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement) and the World Intellectual Property Organisation (WIPO).24 However, there is an increased awareness of the need for protection of traditional knowledge both at the international and national levels. Nevertheless, it has been argued that traditional knowledge may be protected by the existing intellectual property rights (patents, geographical indications, copyrights, or trade secrets), customary law or human rights law. The protection of traditional knowledge at the international level may be related to the World Intellectual Property Organisation (WIPO), the GATT-TRIPS Agreement of the World Trade Organisation (WTO) and other international conferences under the United Nations Organisations. The TRIPS Agreement is administrated by the World Trade Organisation (WTO) and has one hundred fifty three members as at 10 August 2009.25 The TRIPS Agreement came into effect in January 1995. It is considered the most comprehensive multilateral agreement on Intellectual property.26 Furthermore, the TRIPS Agreement is a minimum standards agreement that allows States to give greater protection for intellectual property rights if they choose.27 Moreover, it is considered to be the most relevant instrument of international trade law regarding the issue of biodiversity protection.28 Traditional knowledge concerning with traditional medicine is also based on biological diversity. |
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1. Panumas Kucingaongarm, Asst. Prof. Dr., School of Law, Sukhothai Thammathirat Open University. 2. Curtis M Horton, 'Protecting Biodiversity and Cultural Diversity under Intellectual Property Law: Toward a New International System' (1995) 10 Journal of Environmental Law and Litigation 2, 8. 3. Sumathi Subbiah, 'Reaping What They Sow: The Basmati Rice Controversy and Strategies for Protecting Traditional Knowledge' (2004) 27 Boston College International and Comparative Law Review 529, 532- 533. 6. The 'indigenous medicinal knowledge or indigenous medicine' is defined as a type of plants in indigenous 7. The herbal medicines consist of crude plants having medicinal properties and the preparations made from those plants, such as extracts and tinctures, see Edgar R Cataxinos, 'Regulation of Herbal Medicines in the United States: Germany Provides a Model for Reform' (1995) Utah Law Review 561, 565; see also Varro E Tyler, 'Phytomedicines in Western Europe: Potential Impact on Herbal Medicine in the United States' 534 ACS Symp. Series 25 (1993) 8. Subbiah, above r, 2, 533. He mentioned that 'As just one illustration, the estimated market value of plant-based medicines sold in developing nations (specifically, belonging to the Organization for Economic Co-operation and Development (OECD) country) was $ 61 billion in 1990' 9. World Health Organization - WHO Traditional Medicine Strategy 2002-2005, WHO/EDM/TRM/2002.1; see also The UNCTAD, 'Report of the International Seminar on Systems for the Protection and Commercialization of Traditional knowledge' (Report of the seminar at the International Seminar on Systems for the Protection of Traditional knowledge (TK), New Delhi, India, 3-5 April .2002) 3; see also Xiaorui Zhang, 'Traditional Medicine and its Knowledge' (Paper presented at the UNCTAD Expert Meeting on Systems and National Experiences for Protection Traditional Knowledge, Innovations and Practices, at Geneva, Switzerland, 30 October-1 November 2000) 2-3; see also K V Krishnamurthy, Textbook of Biodiversity (2003) 78; see also N.R. Fransworth, 'Screening Plants for New Medicines.' in E.O. Wilson and F.M. Peter (eds), Biodiversity (1988) 212-6; see also Graham Dutfield Intellectuai Property, Biogenetic resources and Traditional Knowledge (First published, 2004) 97.
12. Promoting the Role of Traditional Medicine in Health Systems: A Strategy for the African Region 2001-2010, WHO, 2000, (AFR/RC50). cited in Zhang, above n 8, 3. 13. The OECD (the Convention on the Organization for Economic Cu-operation and Development) member countries are Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Slovak Republic, Spain, Sweden, Switzerland, Turkey, United Kingdom and the United States. See the OECD, Ratification of the Convention on the OECD (2009) http://www.oecd.org/countrieslist/0.3351.en 33873108 33844430 1 1__1_1__1.00.html at 22 September 2010 14. The UNCTAD, 'Report of the International Seminar on Systems for the Protection and commercialization of Traditional knowledge' (Report of the seminar at the International Seminar on Systems for the Protection of Traditional knowledge (TK), New Delhi, India, 3-5 April 2002), above n 8, 3. (The survey is a study at the fixed point in time with aim of estimating characteristics of the population at that time.)
15. He stated that 'Plants are important sources of crude medicines. The World Health Organisation (WHO) estimates that 80 percent in the developing countries of the world obtain health care through traditional medicine, which utilizes herbal preparations to a high degree. Hard evidence on the extent to which active agents derived from higher (flowering) plants are used as drugs is difficult to project on a global basis. We do know that in the United States, about 25 percent of all prescriptions dispensed over the past three decades have contained active ingredients that are still extracted from higher plants. In 1981, the last year for which data have been calculated, the American public paid more than $12 billion for prescriptions containing active substances from higher plants. It is also recognized that more than 120 drugs of known chemical structure, obtained from higher plants, are currently used on a global basis'. See The World & I Online Magazine, Online Archive and Educational Resource, New Medicines From Plants (2009) <http://www.woHdandi.com/specialreport'1988/september/Sa15041.htm> at 22 September 2010. 16. Norman Fransworth, cited in The UNCTAD, 'Report of the International Seminar on Systems for the Protection and Commercialization of Traditional knowledge' (Report of the seminar at the International Seminar on Systems for the Protection of Traditional knowledge (TK), New Delhi, India, 3-5 April 2002), above nA8, 3 17. Those conditions are now on the debate in various international organisations particularly the WTO. 19. Manual Ruiz, isabel Lapena and Susanna E Clark, The Protection of Traditional Knowledge in Peru: A Comparative Perspective' (2004) 3 Washington University Global Studies law Review 755. 758. 21. Traci L McClellan, The Role of International law in Protecting the Traditional Knowledge and Plant Life of Indigenous Peoples' (2001) 19 Wisconsin International Law Journal 249, 249-251.
25. The World Trade Organisation, Members and Observers (2009), <http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm> at 22 September 2010. |
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