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Chapter Five is designed to protect general domestic and wild plant varieties. The chapter establishes that any person who: Collects, procures or gathers general domestic plant varieties, wild plant varieties or any part of such plant varieties for the purposes of variety development, education, experiment or research for commercial interest shall obtain permission from the competent official and make a profit-sharing agreement. Income accruing from this is remitted to the Plant Varieties Protection Fund (established in Chapter Six). Rules and procedures are yet to be established under the Ministerial Regulations. The profit sharing agreement requires the following: 1. the purposes of the collection and gathering of the plant variety; 2. the amount or quantity of samples of the intended plant variety; 3. the obligations of the person to whom permission is granted; 4. a stipulation if IPRs in the products which result from the development, study, experiment or research of or into the plant variety and which are derived from the use of the plant variety under the agreement; 5. a stipulation of the amount or rate of, and the term for, the profit-sharing under the agreement in respect of products derived from the use of the plant variety thereunder; 6. the term of the agreement; 7. the revocation of the agreement; 8. a stipulation of the dispute settlement procedure; and 9. other particulars as prescribed in the Ministerial Regulation. Thus an access and benefit (profit) sharing procedure is established with enough flexibility for a wide variety of different agreements. It is then up to the parties to reach mutually agreed terms. The fact that a Department of Agriculture official is the point of contact has certain implications. First, they will likely have experience in dealing with such agreements and therefore should be able to negotiate mutually agreed terms on more even terms with the person wishing to access the plant variety. Second, however, the decisions made about profitsharing of a domestic or wild variety is removed from farmers or custodians who may utilise or conserve these varieties (where they exist). 40 This again highlights the importance of local variety registration where it exists within a finite area. Where the general or wild variety exists on a broader scale the decision is placed in the hands of the official. Provided that it operates equitably, the Plant Varieties Protection Fund should provide some remuneration to the custodians of domestic or wild varieties Chapter Six sets up the Plant Varieties Protection Fund. The Fund is intended to be expended for the purposes of assisting and subsidising activities related to the plant varieties conservation, research and development. Income reaches the fund from profit-sharing agreements under Chapter Five, income from the registration of plant varieties, government subsidies and other sources. The money may be provided to local government bodies where the plant varieties have been sourced for exploitation. The body then administers the fund to communities for projects on conservation, research and development of plant varieties. The PVP Committee establishes a separate and smaller Fund Committee to administer and allocate funds. 40 Although ‘wild variety’ would typically imply that it is not cultivated or utilised by farmers, it may however be conserved by certain individuals and communities for reasons of ecosystem balance, local custom or belief. ‘Wild plant variety’ is defined as ‘a plant variety which currently exists or used to exist in the natural habitat and has not been commonly cultivated’ in the PVP Act. 65
Chapters Seven and Eight essentially deal with infringements of the rights of right holders, and describe penalties. Various infringements, including unauthorised collection of plant varieties or parts thereof, include penalties of short prison terms and fines. Although the PVP Act is promising in terms of participation, representation and its broad scope, there are currently only Ministerial Regulations for the protection of new plant varieties. Thus far the Committee has largely been discussing the protection of new varieties based on submissions from larger scale breeders and agricultural industry interests. Regulations for domestic, local and wild varieties are yet to be implemented, and have been held up in both Houses of Parliament and the Council of State whilst attempting to reconcile potential implementation difficulties. These regulations are expected to be passed in late 2005, allowing local communities and farmers to register their local and wild varieties (Titiprasert, Wichar. Pers. Comm., 6 th May 2005). In the coming years, it will be important for the Department of Agriculture, and other relevant stakeholders to share their experiences with other countries to gradually improve the inbuilt systems of local and wild plant variety protection, and access and benefit sharing, within their sui generis PVP laws. 3.5.4 Act on Protection and Promotion of Traditional Thai Medicinal Intelligence BE 2542 (1999) The Act on Protection and Promotion of Traditional Thai Medicinal Intelligence (TTMI Act) is one of the only such Acts of its kind in the world. The TTMI Act was developed at the same time as the PVP Act and there was considerable cross-department cooperation and discussion. The development of the Act also saw considerable input from many groups and individuals within civil society. Table 5 provides a chronology of the development and operation of the Traditional Medicinal Intelligence Act. Chapter One of the Act establishes the Committee on Protection and Promotion of Intelligence of Thai Traditional Medicine. The Committee is made up of ten Director- Generals from a broad range of relevant government departments and similar to the PVP Act, it balances the these bureaucrats with selected practitioners with knowledge, capacity and experience in traditional Thai medicine, the production or sales of traditional Thai medicine, and plantation or transformation of herbs. Chapter Two outlines means for the protection and promotion of intelligence on traditional Thai medicine. This section is devoted to protection of formulas of traditional Thai drugs and similar texts on traditional Thai medicine. Such formulas and text documents can be of three categories – national, general or individual/personal. National and individual formulas and documents can be registered and intellectual property rights applied to them. Such intellectual property rights should be valid for the life time of the bearer of the registration and for another 50 years from the time of the registration owner’s death. Patents on drugs can also be applied for under the Act. Chapter Three details the protection of herbs. Under this chapter the Committee can specify the kind, characteristic, type and names of herbs that are of study and research value, or have important economic significance, or may become extinct and designate them as ‘controlled 66
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Governance and Micropolitics of Tra
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CONTENTS List of Tables, Figures an
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Abbreviations and Acronyms ABS ARCB
Page 7 and 8:
Executive Summary (Thai translation
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passing of the Bill has suffered fr
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policy and law in this study. The u
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cases 3 , particularly where a reso
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2. INTERNATIONAL DEVELOPMENTS, AGRE
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institutionalised in many developin
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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 and 30: enefit sharing; (ii) protection of
Page 31 and 32: 2.8 International Treaty on Plant G
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: • twenty percent is allocated to
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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