Governance and Micropolitics of Traditional ... - IPRsonline.org

Licence Office. This has been suggested as part of a competitiveness strategy by the National
Board of Social and Economic Development, to look after national intellectual property
management in a strategic sense (Changtavorn, Thanit. Pers. Comm., 1 st June 2005). A Prime
Ministerial Regulation on Access and Benefit Sharing for Plant Genetic Resources was
drafted in 2000 for similar purposes but quickly became redundant due to bureaucratic
reshuffling.
As mentioned in Section 2.4, the CBD requires prior informed consent for access to genetic
resources whether ex situ or in situ, but it is not always necessarily clear who is the provider.
For the most part it is assumed to be the state government bodies that have authority over
such resources; however some states now have established mechanisms whereby the local
custodian communities are consulted for consent.
In all probability much of the genetic resources and associated traditional knowledge
collected by the plethora of academic, government and private research institutes in the past
would have been appropriated with little PIC of local communities. Even where consent was
sought the materials and knowledge were likely to have been given with little knowledge on
the part of the individuals or communities of the future implications relating to intellectual
property rights over such materials. A situation remains today where these bodies control
these resources (and often the associated knowledge of its properties and uses) with little
incentive or practicable means to provide benefits to these original providers. Furthermore the
original custodians would often have great difficulty making claims to benefits unless the
transactions were documented, or unless they were relatively recent. Due to the legal
procedures that would be involved, the cost and formality of such claims would also be
prohibitive for the vast majority of original custodian groups. Thus such retrospective actions
are unlikely. The uneven distribution of biological resources poses another problem.
Aspects of the PVP Act of Thailand do not strictly require for PIC of local communities, but
rather rely on them for registration. In cases of wild or general domestic varieties, it is
claimed that there is some form of PIC involved on the part of the DoA, but it is vague, and
has not yet been refined. The Department of National Parks, Wildlife and Plant Varieties has
a policy of PIC for academic research which must be sought of the Department (Baimai,
Visut, Pers. Comm., 2 nd August 2005). The Department does not however have a policy of
seeking PIC of local communities, at least not in written terms, but it has been suggested that
there is often a common understanding between department officials or local government and
such local communities about accessing such resources (Pragtong, Komon, Pers. Comm. 18 th
Aug 2005).
Although a single authority may help resolve some issues relating to conflicting or confusing
department policy, it may also run the risk of further removing the issue from its source. In
other words, the reality of the problem at a local level may not adequately filter up to the
ministerial level, especially with the highly centralised system of government that operates in
Thailand. After all, many of these resources are found in provinces far removed from
Bangkok and their custodians may often be poor small-scale farmers. Thus a single
centralised agency would have a positive effect on coordination of activities relating to
biodiversity, but there would be a broader range of benefits if it had within its mandate the
close consultation of local farmers and community groups within its purview of conservation.
This report contains some model guidelines for access PIC of traditional knowledge holders
and custodians of biological resources (see Appendix Two) which are an attempt to try and
40