The Intellectual Property and Alternative Legal Protection for Thai Cultural Heritage Properties,
Traditional Knowledge and Products

Abstract

This thesis comprises a study into whether the existing intellectual property regime, a sui generis system, or any adaptations or modifications of them have been successfully adopted for protecting both tangible and intangible cultural property and traditional knowledge of Thailand. How other developing countries have dealt with misappropriation issues and the limitations of the current intellectual property regime has also been studied. A number of concerns about and obstacles to traditional knowledge have been pointed out: the existing intellectual property system may have increased the risk of misappropriation or unauthorised use of traditional knowledge without consent; most developing countries have no comprehensive national policies or legal frameworks covering traditional knowledge; lack of effective legislation, authorities and mechanisms associated with intellectual property; the high cost of intellectual property procedures and management; the threat to the intellectual and cultural property rights of indigenous peoples; loss of cultural traditions/ articles and biodiversity; problems with maintaining and passing on cultural expression; as well as inequitable benefit-sharing and remedies.

Intellectual property rights and traditional knowledge have become increasingly controversial globally, and sometimes they overlap. Due to the presumption that traditional knowledge is in the public domain, the current intellectual property rights regime can not efficiently and appropriately protect traditional knowledge and traditional cultural expressions/folklore, or provide equitable sharing for indigenous and local communities. Sometimes domestic legislation is insufficient, incompatible or in conflict with international intellectual property norms and policies. The most feasible solutions need to be rigorous, but flexible enough to cover the various forms of traditional knowledge and access to the generic resources of individual communities. Policy-making, development of categorisation and management of biodiversity data and local knowledge systems, effective strategies and mechanisms, international co-operation and support all need to be taken into consideration.

It would be ideal to have a single legal system to protect all forms of intellectual property; unfortunately, in reality, this is impossible. However, depending on the capacity of governments and the readiness of their people, alternative or sui generis rights or a combination of any regimes of both preventive and positive protection could be developed and adapted and play a complementary role to balance the interests of all parties, while the general public can still access appropriate usage and benefits. Various ideas and alternative solutions from the different perspectives of international forums and other countries are gathered, analysed, proposed and recommended here for Thailand in particular.