|Keywords:||Plant breeders' rights; Convention on Biological Diversity (CBD); Thailand.|
|Correct citation:||Lianchamroon, W. (1998), "Community Rights and Farmers' Rights in Thailand." Biotechnology and Development Monitor, No. 36, p. 9-11.|
In Thailand communities have had their own rights in administrating
and managing their local natural resources ever since Thailand was established
as a nation more than 400 years ago. Although the Thai government made
some efforts to centralize the authority in natural resource administration,
in practice the government could manage only a few kinds of natural resources
such as forests and minerals. The central authorities still allowed communities
to have their own freedom in the management of water resources and farming.
The government did not interfere with the communities’ tradition, culture,
and ways of living. The main reason may have been that existing natural
resources and culture did not have economic value in the government’s view.
The real change of Natural Resource Management (NRM) in Thailand began in 1961 when the first National Social and Economic Development Plan, supported by the World Bank and the US government, was launched. As a consequence, plans on the development of agriculture, health, education, and natural resources were initiated. Through these plans, the government’s authority in the respective fields was becoming more effective and centralized. At the same time, free market and private sector activities have increased. The Thai government stopped its own state companies and promoted the role of private companies in many sectors such as banking, industry and agriculture. As a consequence the government allowed mining and logging companies to exploit forests and lands that had originally been managed by local communities.
The struggle for Community Rights
The centralization of NRM by the Thai government increasingly caused social and community dispute. Concerns have been raised especially in cases where the government cooperated with private companies and allowed them to monopolize the use of forests and lands, for instance for logging of tropical woods or eucalyptus tree plantations. This practice is opposed by a movement of farmers and people in local communities who used to have the authority in managing their own natural resources. Their principal objective at the policy level is to convince the government to enact a Community Forestry Bill. This law would give the rights in NRM back to communities. This includes the management of forests, wild products, minerals and genetic resources. Although it is not yet enacted, the debate during the process of drafting and legislation educated the Thai society on the role of local communities in NRM.
The prominent progress in community rights in Thailand can also be noticed in the country’s new 1997 constitution. In the constitution, there are three acts such as the Community Forestry Bill which state the principles of community rights. Particularly in act 57, community rights for the management of biological resources are clearly manifested. The statement in the constitution is the principle foundation and offers crucial tools for the development of laws on the rights of biological resources and indigenous knowledge in the future.
The Thai Plant Variety Protection Bill
To date Thailand does not have any legislation to protect breeders’ rights on new varieties, or Farmers’ Rights on traditional varieties. Only the export of some endangered species and some cultivated varieties is prohibited by law. In 1994 the Ministry of Commerce and the Ministry of Agriculture drafted a Plant Variety Protection Bill to protect new plant varieties and the rights of plant breeders. This draft was based on the 1978 Act of the Convention of the International Union for the Protection of New Varieties of Plants (UPOV) and was opposed by Thai Non-Governmental Organizations (NGOs) and farmers’ networks. Their resistance was grounded on the fact that the draft would not acknowledge the contribution of farmers and local communities to the development of commercial varieties. Eventually, in 1997 the government formed a national committee composed of representatives from all sectors including plant breeders and farmers to redraft the Plant Variety Protection Bill. The present version was drafted to comply with the sui generis principles as outlined in Art. 27.3.(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and was approved by the Thai cabinet. However, it still needs the two-round approvals from the parliament before it can be enforced. The Plant Variety Protection Bill is based on the fact that in developing useful plant varieties, local plant varieties are employed as their "first-hand varieties". Therefore, the Plant Variety Protection Bill protects the benefits for conservers of local plant varieties as well as owners of commercial plant varieties. Farmers and communities who conserve and improve their varieties will have the similar rights as plant breeders to their newly developed plant varieties. The main principles of the Plant Variety Protection Bill are as follows:
• A technical sub-comittee will be set up by the Ministry of Agriculture to determine which varieties are specific for certain regions/communities and are therefore considered to be local varieties.
• Compensation has to be paid for the use of local plant varieties in the development of new commercialized varieties. The commercial plant breeder must sign a contract which grants at least five per cent of the benefits to communities who conserve the original plant varieties. If new cultivars are bred for the benefit of small scale farmers and local communities or the general public, no compensation has to be paid. Compensation also has to be granted when materials from local plant varieties are extracted to gain ingredients for medicinal or other products.
• Rights on plant varieties grown only in particular communities will be enforced only for those communities. The rights for commercial benefits of the varieties will belong to the particular communities for the duration of the protection which ranges from 15 to 25 years. This rule does not apply if these plant varieties are employed for public or non-profit purposes.
• A new plant variety, especially when it is created by genetic modification, will only be granted variety protection if its biological safety is proven. If a new variety causes damage to community environment or community health, its owner, by law, is liable for the compensation.
• The purpose of this law to protect local plant varieties, farmers’ and community rights is reflected by the composition of the National Plant Variety Committee. Amongst the 23 members of the committee there are six farmers and two representatives of NGOs. The same kind of mechanism is also applied at the regional level.
• The law will establish a foundation for plant variety development and conservation. Income of the foundation arises from different kinds of fees and compensation. It is generated from benefits gained from local wild plant varieties which do not grow in community forests and from local plant varieties which are common assets of many communities. The role of the foundation is to channel the incomes to the farmers and the local communities. The income will be used for activities in conserving and developing plant varieties in various communities.
Although some commercial seed companies consider this bill as a hurdle for the development of new varieties, other breeders feel that it is more useful to have a plant variety protection in this fashion rather than having no legislation at all.
Relations to other legislation and treaties
If the Plant Variety Protection Bill is approved as law, it will be related to two other bills. One is the Traditional Medicine Bill. This bill was already approved by the cabinet and is now being brought to the consideration of the parliament. The difference between the Plant Variety Protection Bill and the Traditional Medicine Bill is that the latter protects not only plant varieties but also traditional knowledge such as on herbal medicine. However, once these two bills are made legally binding, there may be cases in which the same kinds of plant varieties are protected by both laws. Therefore it should be clearly classified which type of plant varieties will be protected by each law.
Plant variety protection will also be related to the Thai Patent Act that was amended in 1992. This Act does not allow for patents on plants, animals and patents for micro-organisms are only granted if these organisms are modified. It furthermore excludes patents on plant varieties, therefore the Plant Variety Protection Bill will have to be enacted to bring Thai legislation in line with the legal requirements as outlined by the Agreement on TRIPS.
The above mentioned bills will be effective only within Thailand. It is therefore possible to use Thai plant varieties abroad without complying with Thai plant variety protection or patent law. In this case the Thai government cannot force a person or organization to pay for the compensation. In principle, the use of Thai genetic resources outside of the country could be regulated by the access regime and benefit sharing mechanisms that are stated by the Convention on Biological Diversity (CBD). At present, Thailand has not ratified the CBD because it was felt that mechanisms to acknowledge community rights inside the country had to be established before "access rights" at an international level could be granted.
However, the Thai mechanism of compensating local communities will only be possible if Thailand has sufficient bargaining power at international level. At present, there are many countries and groups engaged in elaborating laws to protect Farmers’ Rights, community rights and local genetic resources. The international cooperation amongst developing countries will stimulate each country to work on its own legislation. Furthermore, it will counterbalance industrialized countries’ demands in international negotiations on, for instance, the CBD or the TRIPS Agreement. It will, as well, result in benefit sharing in the case that common genetic resources exist in many countries, or help to construct mechanisms and principles for the exchange and transfer of biological resources.
Thai Network on Community Rights and Biodiversity (BIOTHAI), 801/8
Ngamwongwan 27 Soi 5, Muang, Nonthaburi 1100, Thailand.
Phone (+66) 2 952 7371; Fax (+66) 2 952 8312; E-mail email@example.com
S. Chamarik and Y. Santasombat (1993), Community Forest. Bangkok, Thailand: Research Books.
GRAIN (ed.)(1997), Signposts to Sui Generis Rights. Background discussion papers for the international seminar on sui generis rights. Bangkok, Thailand: BIOTHAI.
D.A. Posey (1996), Traditional Resources Right. Cambridge, UK: IUCN.
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