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

Executive Summary (Thai translation pending)
Concerns and debates about the intellectual property, biodiversity (genetic resources) and
traditional knowledge (TK) nexus are complicated by competing knowledge systems. On the
one hand there is the pursuit of a technical, scientific and legal system of knowledge control
which allocates exclusionary rights. This system essentially fractures, and proprietises
knowledge as well as aspects of biodiversity such that they can be integrated into the market.
On the other hand there are more holistic systems of knowledge which incorporate custom,
ritual, agricultural, ecological and medicinal utilisation of biodiversity existing in local
environments and conditions. These two systems would appear to be incongruous; however
various stakeholders have been working on finding a middle ground such that there are
benefits arising from research for both local knowledge holders and society more broadly, and
such that the culture of local knowledge holders is respected.
In Thailand mechanisms of control including Constitutional provisions, various legislative
acts and organic laws, as well as continuing customary practice have sought to balance
competing desires for economic development as well as for the maintenance of more holistic
local practice which integrates custom, ritual and subsistence in local environments.
Furthermore this compromise has been found through open and democratic processes,
through ‘ground-up’ initiatives and by broad cooperation between seemingly disparate
groups. The effectiveness of these laws however relies upon having appropriate and practical
means for their implementation, as well as the political will to engage with all the
stakeholders involved. This has been the primary stumbling block in Thailand, with prolonged
debate about the precise nature of the problems that need to be addressed (e.g. how
‘biopiracy’ threatens various groups in Thailand), how they should be managed and how
stakeholders can be adequately involved.
In many international forums solutions have often been sought to these polemics through
expansions and exceptions to the techno-legal knowledge systems espoused by epistemic
communities of intellectual property and trade lawyers with little or no local experience or
expertise in areas where the contrasting holistic knowledge system is practiced. In other
words technical amendments to the international patent system, such as a disclosure
requirement – whilst perceived as necessary for stopping biopiracy – are only targeting one
small part of the complex array of problems at hand. The effectiveness of such provisions is
also still under debate internationally.
On the other hand local communities, which act as custodians of biodiversity and associated
traditional knowledge, remain reliant upon academics, NGOs, government and activists to
disseminate information about the potential effects of biopiracy episodes, and the imposition
of external obligations such as those being negotiated in the Thai-US FTA. Through close
discussions between such actors and communities, appropriate consultations and control
mechanisms can be found that suit Thailand’s level of development, and balance against the
possibility of inappropriate external political influences. Currently, there is considerable
government – civil society interaction. Regarding participation for local communities and TK
custodians, government bodies have only made superficial attempts. In order to respect
traditional knowledge holders, such groups need to be consulted on matters of research
access, informed of the potential effects of the dissemination of TK and related biological
resources (especially when commercialised), and given a right to refuse access or place
appropriate terms on the access, should they deem it to be detrimental to their customs and
lifestyles. The importance of such a mechanism for prior informed consent (PIC) should not
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