Thailand Law Journal 2010 Spring Issue 1 Volume 13

4. Legal Framework for Plant Variety Protection in Thailand
As we have seen, an effective plant variety protection system can be adopted as an instrument of development policy designed to promote development of agriculture in Thailand. The TRIPS Agreement also supports this rationale by authorizing WTO Members to develop any form of plant variety protection suited to their development needs and priorities. The reminder of the article concludes with some preliminary discussions on the current framework for plant variety protection in Thailand.

Thailand, with a view to take advantage from this TRIPS flexibility, passed the Plant Variety Protection Act (‘PVP Act’)⁵⁵ in 1999 as a means to promote agricultural development in the country. Specifically, the facilitation of agricultural development has become an important objective in the current regulatory framework for plant variety protection, as represented by the Thai PVP Act.⁵⁶ The “explanatory memorandum” of the Thai PVP Act recognizes its important role as to “establish and protect intellectual property rights in new plant varieties so as to foster the development of agriculture by creating a regime for the breeding and utilization of such varieties, as well as to recognize the rights of farmers and local communities as custodians of crop cultivars by allowing them to register local plant varieties”.⁵⁷ The emphasis of development of agriculture through effective plant variety protection system continues today and has recently been subjected to substantial government debate.⁵⁸ It is important to promote effective protection for plant varieties as the key strategy to facilitate the development of agriculture in Thailand.

Despite the emphasis of important of agricultural development in the Thai PVP Act, the agricultural sector in Thailand remains underdeveloped and more farmers became poorer, even though the Thai PVP law has actually been adopted for ten years. An average income per capita of agricultural households in Thailand was among one of the lowest income sectors,⁵⁹ and is particularly low when compare to other Asian countries, such as Korea and China, where agriculture does not serve as a fundamental economic activity, and a livelihood for a large section of their populations.⁶⁰ This reveals the fact that the economic and human (farmers) welfare in this economic sector in Thailand is dire. As noted above, serious economic problems in agricultural sector in Thailand remains a primary cause of the fall of the democratic regime and the subsequent rise of dictatorship and the beginning of aggressive opposition against the government.⁶¹ Thailand would not be able to facilitate development in this economic sector, agriculture, simply because the current provisions of Thailand’s PVP Act are largely ineffective and inadequate for protection. Specifically, the Act contains several fundamental flaws.⁶² First, the Thai PVP Act contains many outmoded law on plant variety protection that do not meet international standards, i.e. standards that several countries apply to the exclusive protection for the rights of breeders.⁶³ The justification for the comparison with the international standards is that these laws have similarities with reference to the model of plant breeders’ rights protection.⁶⁴ More importantly, provisions concerning the rights of plant breeders are not consistent with the breeders’ interest. For example, the scope of breeders’ right seems to be too narrow and raises a number of questions relating to the text of the Thai PVP Act’s clarify and sufficiency to protection the interest of breeders’ rights.⁶⁵ Finally, provisions providing for the rights of farmers and local communities are largely declaratory and do not create any practical means.⁶⁶ Specifically, the Thai PVP Act recognizes the vital role of farmers and local communities in protecting traditional knowledge by allowing them to register local domestic plant varieties as a means to create community property rights in contrast to breeders’ varieties. However, it is doubtful that farmers and local communities actually have benefits from this set of provisions contained in the Thai PVP Act. While there exists a framework for the registration of local domestic plant varieties, farmers and local communities appear to be unable to register their varieties under the Thai current plant variety protection regime. Thus, it can be said that this set of provisions is inadequate and insufficient since it does not create any practical means for farmers’ rights. The deficiency of provisions concerning the rights of farmers and local communities also has been subjected to substantial government debate and of proposal for statutory reform.⁶⁷ At time of this writing, work on legislative reform is continuing but its fate and the deliverables of the discussions remains somewhat uncertain.⁶⁸ These fundamental deficiencies of Thailand’s PVP Act dilute the benefits of the Act, and have resulted in skepticism against its objective to promote agricultural industry. Consequently, it is arguable that Thailand cannot successfully promote agricultural development without proper protection of IP over plant varieties.

5. Conclusion 
This article has proposed the argument that the protection of IP can be adopted as national development policy. The idea is based on the argument that the proper protection of IP can effectively promote the economic development, which has been widely studied and well documented. Leading scholars such as Mansfield, Straus, and Gervais, also have studied the effect of IP policies on economic development and concluded that the adequate IP protection had positive implications for economic development. The adoption of IP policy as a form of national economic development policy has been employed successfully by East Asian countries, such as South Korea, Singapore, Taiwan, and China in the past with significant success. Specifically, this article has introduced the idea that plant variety protection, as a branch of IP law, should be adopted as development policy designed to promote agricultural development of Thailand.

In summary, an effective plant variety protection system seems to be the most suitable type of IP development strategy for Thailand because agriculture represents a fundamental economic activity and livelihood for a large section of the Thai population. It touches the crucial question of economic development, agricultural management, and livelihood of the majority of the Thai population. Plant variety protection would also be an alternative approach to reduce poverty and enhance development in Thailand where agriculture sector as a whole does not function to make any economic progress. Plant variety protection can be a form of national economic development policy, alternative to other IP strategies promoted and adopted by the East Asian countries in their rapid development period. The TRIPS Agreement of the WTO, which regulates the rule of plant variety protection at international level, also supported this rationale and provided for the implementation of effective plant variety protection as development policy. Specifically, Article 27.3(b) of TRIPS provides a certain degree of flexibility in regards to the type of plant variety protection systems, which all WTO Members can choose any one of the three systems: (1) patents, (2) an effective sui generis system, or (3) a combination of both patents and the sui generis system to protect plant varieties. This flexibility offers WTO Members, including Thailand some leeway that can and should be utilized effective IP system of plant variety protection as national development policy suited their specific needs and priorities.

With a view to promote agricultural development as a national agenda, Thailand has enacted the Plant Variety Protection Act in 1999 by taking advantage from the TRIPS flexibility. Specifically, the facilitation of the development of agricultural is a primary objective of Thailand’s plant protection regime, which recognized in the Preamble to the Thai PVP Act. Ten years after the implementation of the Thai PVP Act, the agricultural sector in Thailand still remains least developed, and much of the Thai farmers become even poorer. Average income per capita of agricultural households was among the lowest income economic sector. A question then arise as to whether the Thai current system of plant variety protection, as represented by the Thai PVP Act would lead to the development of agriculture because the current PVP rules are largely ineffective and obsolete. To comprehensively answer this question, the current regulatory framework for plant variety protection in Thailand as a whole needs to be further researched in order to identify major problems underlying the deficiencies of the Thai PVP framework, and propose possible solutions to the problem.