Indigenous knowledge and intellectual property: Thai study
Dr Pennapa Subcharoen, Director of the Institute of Thai Traditional Medicine, Department of Medical Services, Ministry of Health, Thailand, presented this paper.
Thailand has records of the use of medicinal plants dating back to prehistoric times. Fossils of seeds from 27 genera and 17 families have been found at some sites. Many of these plants are still in use, e.g. Mormordica charantia, Terminalia spp., beans, etc. Thailand has exported herbs since the Dhavaravadhi period. The famous Royal Pharmacopoeia, the “Tumra Osoth Pra Narai”, consisted of the collective traditional medicine from the North, the Northeast, the Central and the Southern parts of Siam. More than 5,000 medicinal plants were recorded in the Palm-leaf Pharmacopoeia, and the figure exceeds 10,000 if food plants are included. Other practices were also recorded, e.g. traditional massage and spiritual healing. Thai traditional medicine (TTM) was the sole health care system for Siam until Western medicine was brought into the country in the Ratanakosin period. Western medicine has gained in popularity because of the availability of antibiotics, vaccines, operations, convenient dosage forms and the influence of international trade. Since the introduction of western medicine, Thai traditional medicine has been discredited, as have traditional healers. Recently, however, Thai traditional medicine has regained its popularity due to some failures in modern treatment and the toxicity of chemicals.
The tropical forests of Thailand have been exploited for their wood and also for their herbs. Hundreds of herbs have been collected and exported by collectors at low prices, e.g. 7 bahts/kg, or traditional healers were hired at the rate of 200-500 bahts/day. Generosity is a part of the Thai culture and wisdom is often given away for free, not knowing that there is a system designed to internalize the externalities. An example is the book Traditional herbal medicine in northern Thailand written following an interview with a traditional healer, which declares on the front page that there is nothing to be given back in return for his knowledge. “Our relationship with the herbalists was a personal one based on mutual interest. We did not enter into any formal teacher-pupil relationship with any of them, nor did we make any promises or formal arrangements regarding economic compensation for the information they provided.” It is obvious that the authors intentionally quoted this statement to avoid sharing any benefits arising from this work. The latest biopiracy centres on a marine fungus taken by Portsmouth University in England, while working under a gentleman’s agreement with the Thai government. In this case, Thailand has no chance of sharing the ownership of the biological material taken from her. These events demonstrate that Thailand lacks several instruments for the protection of the country’s assets. The first instrument is the biological specialist, which explains Thailand’s dependency on the developed countries. The second instrument is a national policy for the minimal standards of equitable sharing of benefits and codes of conduct. The third instrument is the responsible institution to manage these transactions and compensation for the local people. Thailand has foreseen that several international laws and agreements concerning intellectual property rights might hinder the development of local business or the health care system based on TTM. Moreover, Thailand has not prepared the system to cope with biological prospecting and the minimal standards of agreement have not been set. This is the reason why Thailand has not yet ratified the CBD.
Dr Pennapa also reported on Thailand’s efforts to protect traditional knowledge, the Protection and Promotion of Thai Traditional Medicines Intelligence Act 1999 and the Plant Protection Act 1999.
Thailand’s efforts to protect traditional knowledge
At present, Thailand has more than 30,000 licensed traditional healers and about 100,000 unlicensed practitioners. These people are the first group in the inventors’ chain of drug discovery. Before the Dhavaravadhi Period, it was recorded that Queen Jama Dhevi gathered together 500 local traditional healers to join her on her journey to Haripunchai City (now Lumpoon Province) where she ruled. The Traditional Pharmacopoeia was originally engraved on stone (pre-Sukhothai Period), then on palm leaf (Sukhothai Period) and then on the tooth brush tree (Ayuthya Period).
The conventional patent system was designed to protect the interests of the inventor in promoting new inventions and to provide an incentive for the owner to bring inventions to the public and business. This concept could be applied justly to the first group of the inventors’ chain instead of taking for granted that traditional knowledge is a common heritage, and that industry can simply make use of it without providing any compensation. It is increasingly admitted that equity in the sharing of benefits will not happen unless traditional knowledge is accepted nationally and internationally as another form of intellectual property. However, the present system cannot be applied to traditional knowledge. An example of how this has been attempted is the Thai patent on Kwao Kruae.
Invention: All traditional preparations containing Kwao Kruae, or plants and animal product mixtures.
Comment: Kwao Kruae has been used in Thai traditional medicine for many years. Traditional healers have been preparing products for household use and for sale in the community for more than 100 years. Today, there are more than 35 companies producing more than 50 formulae containing Kwao Kruae. The granting of a patent for Kwao Kruae, has, therefore, closed down companies that have been trading for years by turning their activities into an illegal business.
Questions: Are these patents possible? Is it fair to traditional healers and local business? How could traditional healers share the benefits when there was no information on the source of the traditional knowledge? Will patent of use claims in terms of crude drugs and traditional drugs provide free access by multinational companies? What benefits would any developing country gain from this type of patent?
The Protection and Promotion of Thai Traditional Medicine Intelligence Act 1999
From these events, it is clear that the present system of intellectual protection is not suitable for traditional knowledge, and we should not encourage traditional knowledge to be patented under this system. The 1999 Act was designed to protect and promote local wisdom in the following areas:
• National Formulae are formulations given to the nation which are crucial for human health; anyone wanting to use and develop these formulae must obtain a license.
• Individual Formulae are private formulations, the owner can use freely and develop these formulae, anyone else must obtain permission from the owner and a license.
• General Formulae are free to use by anyone.
The advantage of this law is that all three types are free, if used domestically by traditional healers or by the Thai community in limited quantities. This is impossible under the western patent system.
For the sake of conservation and the sustainable utilization of medicinal plants, plants rated as being at high risk of extinction will be announced in the Near Extinction List: permission would then need to be obtained for any management activities involving these plants. Plants would be withdrawn from the list when appropriate measures have been taken to correct the risk. The areas where these plants are growing, if not covered by other laws or if not in private hands, can be licensed so as to receive technical assistance and development from the Institute.
Thai Traditional Knowledge Development Fund
The funds received for these transactions will be allocated to various activities, e.g. conservation, research and development, intellectual property rights, NGOs, land development, etc. The definition of Thai herbs in this Act also covers microorganisms, parts of plants and animals, and minerals. The methodologies used in the preparation of traditional medicines for human and animal use are also protected by this Act. The organization responsible, the Institute of Thai Traditional Medicine, was also established by this Act after functioning informally for 7 years. A committee composed of equal numbers of NGOs and governmental officials governs the institute. Authority for registration and other activities are distributed to 75 provincial offices throughout Thailand. This is a good example of bureaucratic reform.
The Plant Protection Act 1999
As a member of the WTO, Thailand has to promulgate the Plant Protection Act to comply with the WTO and TRIPS Agreements. The Act was based on the UPOV Convention 1978, FAO and CBD. It protects both new breeds of plants and local plants. Local plants may also be categorized as Specific, General or Wild Plants. Compensation to a legal person was also provided for in the Act.