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any direct influence on traditional knowledge, it is important to note for its potential effects on the modernisation of agricultural systems through the allocation of plant breeders rights. Some critics have suggested that the scope of plant breeders’ rights may be appropriate in countries with advanced breeding methods, but not necessarily in countries with developing or subsistence agricultural systems. In response to increasing pressures from plant breeders, the 1978 UPOV system was updated to keep up with modern biotechnological techniques. To be eligible for protection under the UPOV system, plant varieties must be novel, distinct, stable and uniform (in UPOV 1991) or homogenous (in UPOV 1978) (Dutfield, 2004). The 1991 UPOV text strengthens protection by widening the array of subject matter. The protection covers not only the propagating material of the protected variety, but also (unlike the 1978 Convention) the harvested material (including entire plants and parts of plants), the products made directly from harvested material of the protected variety, and essentially derived varieties (Changtavorn, Thanit, 1998). The protection of ‘essentially derived varieties’ represents an important exclusion of farmers that goes against the historic situation whereby farmers would share propagating materials and develop ‘essentially derived varieties’ adapted to various conditions. This is deliberately intended to suit private interests. Breeder’s rights are extended between the versions as well. Under UPOV 1978, the scope of protection of the breeder’s right is for ‘the production for purposes of commercial marketing; the offering for sale; and the marketing of the reproductive or vegetative propagating material, as such, of the variety’. Under pressure from plant breeders the 1991 version extends the scope of the breeders rights by increasing the number of acts for which prior authorisation of the breeder is required, including ‘production or reproduction; conditioning for the purpose of propagation; offering for sale; selling or other marketing; exporting; importing; stocking for the above purposes’. This goes beyond just reproductive or vegetative propagating matter, but also encompasses harvested material obtained through the use of propagating material and essentially derived varieties (Dutfield, 2004). Furthermore the UPOV 1991 version extends protection from at least 15 years to a minimum of 20 years The farmer’s exemption (or farmer’s privilege) allows farmers to keep propagating materials for sowing in a following season. The 1991 UPOV text defines the farmer’s exemption more carefully than the previous text, by allowing a farmer to use, for propagating purposes only on his holding, the product of the harvest which he has obtained by planting, on his holding, the protected variety or essentially derived variety (Changtavorn, Thanit, 1998). This limits the scope of farmers who wish to save, exchange or sell their seeds to other farmers where they have used protected materials. National bodies have the right to determine whether to implement the farmers’ privilege. Compulsory licensing is allowed for reasons of public interest, and discourages a plant variety right holder from monopolising production. It does this by encouraging the proprietor to licence voluntarily for a remuneration which is less that the typical royalty. The review of the UPOV system to its current (1991) version however, is designed for advanced plant breeding and biotechnological techniques, and may thus contain elements that are inappropriate for developing countries which rely on more traditional methods of plant breeding, and which are dominated by small-holder agriculturalists. 21
2.8 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) Recognising both the sovereign rights and the inter-dependence of countries over their plant genetic resources for food and agriculture, the International Treaty establishes a multilateral system that aims to facilitate access and benefit sharing (Dutfield, 2004). The ITPGR covers important issues relating to plant genetic resources kept in ex situ collection and farmer’s rights (see Article 9), which the CBD does not cover. The access and benefit sharing mechanism is to be facilitated through a standard Material Transfer Agreement (MTA). The implementation of the International Treaty is only relatively recent, so its full implications are unknown. Many developing countries are acceding to the Treaty however and it may prove to be useful for the control of genetic resources for food and agriculture. On the other hand it does not cover other forms of genetic resources (such as those used in medicines) and does not in any direct sense promote or protect traditional knowledge. A research team of legal experts, academics and government officials researched the potential impacts of the ITPGR for Thailand (Kuanpoth et al, 2004). They outlined negative and positive aspects of the ITPGR for Thailand which have been described in Table 3 as follows. Table 3: Review of the Potential Impacts of the ITPGR. Negative Aspects - There must be a revision of Thai laws governing the access and benefit sharing of plant genetic resources under control of the government and in the public domain for those plant genetic resources covered by Annex 1 of the ITPGR. - Thailand will lose the domestic sense of knowledge and resource sharing from the use of her plant genetic resources in the sense that it will justify their pilferage if it is done to obtain an exclusive right such as intellectual property right. - The membership of the International Treaty is a reduction of Thai sovereignty since Thailand needs to apply the management of her ex situ collection under the conditions set forth by the International Treaty, especially the use of the Multilateral System instead of the Plant Variety Act B.E. 2542 (1999). Positive Aspects - Thailand will receive the benefits arising from the utilisation of its genetic resources kept with the IARCs. - The country may have wider opportunity to obtain plant genetic resources in the public domain and under control of other member states. Source: Kuanpoth et al, (2004) Based on the abovementioned positive and negative aspects, the report outlined recommendations for Thailand subject to review and the evaluation of developments. These recommendations are detailed in Table 4 overleaf. 22
Page 1 and 2: Governance and Micropolitics of Tra
Page 3 and 4: CONTENTS List of Tables, Figures an
Page 5 and 6: Abbreviations and Acronyms ABS ARCB
Page 7 and 8: Executive Summary (Thai translation
Page 9 and 10: passing of the Bill has suffered fr
Page 11 and 12: policy and law in this study. The u
Page 13 and 14: cases 3 , particularly where a reso
Page 15 and 16: 2. INTERNATIONAL DEVELOPMENTS, AGRE
Page 17 and 18: institutionalised in many developin
Page 19 and 20: germplasm originating in their gene
Page 21 and 22: e subject to exclusive intellectual
Page 23 and 24: guide for countries attempting to i
Page 25 and 26: described in section 2.7. The lates
Page 27 and 28: Switzerland took an alternate posit
Page 29: enefit sharing; (ii) protection of
Page 33 and 34: Drawing upon these and the highly r
Page 35 and 36: The current Draft ASEAN Agreement a
Page 37 and 38: The use of such bilateral trade pre
Page 39 and 40: A leaked version of the US FTA posi
Page 41 and 42: 3. GOVERNANCE IN THAILAND There are
Page 43 and 44: articles). The advocacy of groups s
Page 45 and 46: in some areas and stronger IPRs in
Page 47 and 48: is opposed to ex situ resources whi
Page 49 and 50: Licence Office. This has been sugge
Page 51 and 52: capita greenhouse gas polluters on
Page 53 and 54: Pennapa et al, 2001). It is claimed
Page 55 and 56: 3.4 Alleged Biopiracy Episodes and
Page 57 and 58: While the use of geographical indic
Page 59 and 60: were then taken by a Portsmouth Uni
Page 61 and 62: A number of subsequent Thai patents
Page 63 and 64: Of the biopiracy cases discussed he
Page 65 and 66: that was investigated by WIPO and U
Page 67 and 68: 3.5 Legislation and Bureaucratic Mi
Page 69 and 70: There are several aspects of the Pa
Page 71 and 72: Table 5: Development and Operation
Page 73 and 74: • twenty percent is allocated to
Page 75 and 76: Chapters Seven and Eight essentiall
Page 77 and 78: Furthermore he notes that it is not
Page 79 and 80: esources. A Community Forest Manage
Page 81 and 82:
There have been ongoing meetings at
Page 83 and 84:
3.8 The Role of Civil Society, NGOs
Page 85 and 86:
3.9 Summary: Participation, Impleme
Page 87 and 88:
Box 4: Indigenous Peoples and Local
Page 89 and 90:
4.2 Traditional Knowledge and Local
Page 91 and 92:
Box 5: Methods of Karen Pest and We
Page 93 and 94:
Table 6: Description of Threats Aff
Page 95 and 96:
Traditional Medicines of Baan Sopla
Page 97 and 98:
Although a full ethno-botanic inves
Page 99 and 100:
Baan Khun Khlang, Hmong Village, Kh
Page 101 and 102:
Rather than applying customs and ri
Page 103 and 104:
developing and many ‘Eastern’ c
Page 105 and 106:
This section provides an explanatio
Page 107 and 108:
5. DISCUSSIONS AND CONCLUSIONS The
Page 109 and 110:
PIC requirements should however be
Page 111 and 112:
Drahos, P. (2005) ‘Intellectual P
Page 113 and 114:
TK-FL Working Group (2005) A summar
Page 115 and 116:
IRRI, IRRI Welcomes Rice Research D
Page 117 and 118:
APPENDIX ONE Chronology of the Comm
Page 119 and 120:
It is recommended however that due
Page 121 and 122:
c. The PIC Coordinators are respons
Page 123 and 124:
. If the original source owners or
Page 125 and 126:
SECTION SIX - ABS-PIC FUND a. An
Page 127 and 128:
APPENDIX THREE - List of Relevant W
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