Thailand Law Journal 2010 Spring Issue 1 Volume 13

For agricultural protection measures, crop scientists and agricultural developers have prepared for this exigency by assembling large collections of genetic resources in gene banks and making them available for crop improvement.¹² In 1970, an international framework for collection, conservation, utilisation, and exchange of genetic resources was established. These include the International Board for Plant Genetic Resources Institute (IPGRI),¹³ the world collections of principal crops at International Agricultural Research Centres, (such as the International Rice Research Institute), and national collections, (such as those of the National Seed Storage Laboratory in Fort Collins, Colorado).¹⁴

In the meantime, the situations of extinction of genetic resources and the increasing world population, particularly in third world countries, created a need to preserve genetic resources in whatever way.¹⁵ Large amounts of genetic resources were transferred from the third world to developed countries without awareness and compensation.

The issue of genetic resources flow has not been mentioned recently. Instead of this, the genetically modified organisms (GMOs) issue has become the crucial issue being debated in world forums. Academics such as Michael Hassemer state that 'strong evidence suggests that with the growing extinction of species, traditional knowledge is also declining. What makes this extinction particularly deplorable-is its invisibility'.¹⁶ The awareness of the world food shortage is resulting in the flow of genetic resources from developing countries to developed countries. Preservation and production of plant genetic resources are being undertaken to save the world from starvation. As a result, there are many new plant varieties emerging due to biotechnological development. Thus plant varieties will be problematic with regard to intellectual property protection in the following decade.

2 The Concept of 'Plant Genetic Resources being the Common Heritage of Mankind'
The reference to crop genetic resources being the common heritage appeared in the 1980s in association with the establishment of the Commission on Plant Genetic Resources at the Food and Agricultural Organization of the United Nations (FAO).¹⁷ In 1983 the FAO conference affirmed a resolution that 'plant generic resources are a heritage of mankind and consequently should be available without restriction.¹⁸ In this context, Stephen B. Brush, also states:

The crop scientists who articulated the idea of common heritage for crop resources were acculturated in science as a social system without proprietary relations over its basic resources: theories, wgorithms, or methodologies (Robert K. Merton, 1973). The sociology of science in this context was described by Merton as the Communism of sciences in which concern for authorship did not imply exclusive rights. Accordingly, most crop scientists who helped establish the international framework for plant genetic resources worked in public breeding programs that released their products as public goods.^l9

The concept of common heritage of crop genetic resources was widely adopted, especially amongst the crop scientists and agricultural developers. In fact, crop genetic resources could never be applied to criteria of common heritage of mankind in international law. The common heritage principle of international law is explicitly included in two international treaties. These are the Agreement Governing the Activities of States on the Moon and Other Celestial 1979 and the United Nations Convention on the Law of the Sea 1982.²⁰

Another major cause of genetic resources flow from developing countries to developed countries is the view of common heritage. Thus, if genetic resources are seen to belong to all peoples, it is not necessary to allow for sharing of benefits or any protection measures. It is interesting that the concept of common heritage of mankind was introduced to apply to genetic resources, but not to other non-renewable resources, such as oil and gas. Those non- renewable resources should be taken into account more than renewable plant resources.

3 The Concept of 'Intellectual Property Rights on Living Resources'
While there has been a general assumption that living things cannot be patented,²¹ this concept is explicitly known and accepted by intellectual property scholars.

At the end of the twentieth century, the development of biotechnology became impacted on the medical and food sectors²² Biotechnology also offers specific new possibilities for information and interventions affecting human life²³ To protect biotechnology, questions were raised in public debate about whether living organisms could be patented or not²⁴ The debate includes moral considerations relating to human life, research on the human genome, animal welfare issues, the issues relating to the limits of intellectual property rights and the environmental as well as health and safety issues²⁵ The European Union (EU) has spent decade debating this issue. Finally, they agreed to harmonise the criteria for the patentability of organic material under the Directive on the Legal Protection of Biotechnological Inventions 1998.²⁶

The situation with regard to patenting biological organisms in the United States is clearer. The United Stated Government passed the Plant Patent law of 1930 and the Plant Variety Protection Law of 1970, both of which had been passed in the brief that patent law did not extend to living things.²⁷ In 1980, the United States Supreme Court ruled in the Chakrabarty Case that living things are capable of being patented under the general law. This case is considered as a landmark case to protect plants, seeds and tissue cultures.²⁸ As a result, the United States probably leads the world in the scope of protection that it offers to biotechnological inventions in that 'invented' living organisms can be patented and that plant varieties can be patented and protected.²⁹

The concept that 'living resources cannot be patented' is also a cause of genetic flow. This concept is support to the concept of common heritage which believes that genetic resources belong to all peoples. Developing countries were not taken into account with regard to the protection of their resources because genetic resources were not protected by intellectual property rights.

In summary, for the above-mentioned reasons, genetic resources flowed from developing countries to developed countries through the governmental and non-governmental organizations via co-operations or research projects, particularly in the agricultural and health care sectors. However, trade, bilateral agreement and misappropriation also made a small contribution to the flow of genetic resources. Currently, the problem of genetic loss and the concept of common heritage have faded out from international debate, but the protection of traditional knowledge and genetic resources remains in the debate.

C The Protection of Traditional Knowledge and Indigenous Resources
The protection of traditional knowledge has been taken up in global discussions concerning intellectual property and trade.³⁰ Although it has been a critical issue, since the enactment of intellectual property laws, the traditional system has never considered indigenous knowledge as a part of it.³¹ As mentioned above, large numbers of world populations depend on traditional knowledge for survival. Traditional knowledge and indigenous resources are being accepted, but indigenous communities are still waiting to receive the benefits or royalties for their traditional knowledge.³²

12. Stephen B. Brush, 'Biodiversity, Biotechnology, and the Legal Protection of Traditional Knowledge: Protecting Traditional Agricultural knowledge' (2005) 17 Washington University Journal of Law & Policy 59, 105.

13. The International Board for Plant Genetic Resources Institute (IPGRI) is now operated under the name Bioversity is the world's largest international research organization dedicated solely to the conservation and use of biodiversity. It is non-profit, non-religious and independently operated. Headquarters at Rome, Italy; (www.bioversityintemational.org) See Bioversity International, <www.bioversityinternational.org/About Us/Inde.asp> at 22 January 2007.

14. Stephen B. Brush, above n 12, 105.

15. Read more details in Klaus Bosselmann, above n 2 of Part I, 113., See also W. Krishnamurthy, 'Loss of Biodiversity', 'Conservation of Biodiversity' and 'Management of Plant Biodiversity' 81-175.

16. Michael Hassemer, above n 56 of Part I, 163. See also Biber-Klemm, 'Biotechnology and Traditional Knowledge: in Search of Equity' 2 Nos. 1/2/3 (2000) International Journal of Biotechnology 85.

17. Stephen B. Brush, above n 12, 65.

18. Stephen B. Brush, above n 12, 65. Resolution 8/83 of the 22"d Session of the FAO Conference recognised thai 'plant genetic resources are a heritage of mankind. ...' and the Resolution 5/89 of the 25th Session of the FAQ Conference recognized that 'plant genetic resources are a common heritage of mankind....'. See also Graham Dutfield, above n 9 of Part I, 4, 10-1.

19. Stephen B. Brush, above n 75, 69.

20. Graham Dutfeld, above n 9 of Part I, 10. See also Christopher C. Joyner, 'Legal Implications of the Common Heritage of Mankind' (1986) 35 International and Comparative Law Quarterly 190; Stephen B. Brush, above n 75, 68-9; R.R.Churchill and A.V.Lowe, The Law of the Sea (First published 1983, reprinted with addenda 1985. New, revised edition 1988) 13-14,181-182.The elements of common heritage of mankind consist of the following:(1) Areas defined as common heritage would not be subject to appropriation by private or public interests; (2) All peoples would share in the management of common territory; (3) Economic benefits from' the exploitation of common territory would be shared internationally; (4) Common territory would only be used for peaceful purposes; and (5) Scientific research in common territory would be freely and openly accessible.

21. Graham Dutfield, above n 9 of Part I, 3. Patents were occasionally granted in some countries on plants and microorganisms.

22. Oliver Mills, Biotechnological Inventions: Moral Restrains and Patent Law (2005) 123.

23. Ibid.

24. Ibid 123-4.

25. lbid.124.

26. Ibid 124. See also Matthias Leistner, above n 1 of Part I, 76. (Directive 98/44/EC of the Europesr Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, OJ L213. P. 13).

27. Klaus Bosselmann, above n 2 of Part I, 126.

28. Klaus Bosselmann, above n 2 of Part I, Plant breeders have the right to patent a new variety of plant a new variety of plant under both acts and under general patent law so long as they can satisfy the necessary criteria.

29. Klaus Bosselmann, above n 2 of Part I, 126.

30. Daniel Gervais, above n 58 of Part I, 1.

31. Atencio Lopez, Indigenous Expert, International Workshop on Traditional Knowledge for the Recovery and Protection of Traditional Indigenous Knowledge [2] UN Doc. PF!!/2005/S.TK/6 (2005).

32. Ibid.