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The Reformation of Legal Regime for Intellectual Property Protection of Plant Varieties in Thailand

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The Reformation of Legal Regime for Intellectual Property Protection of Plant Varieties in Thailand The Reformation of Legal Regime for Intellectual Property Protection of Plant Varieties in Thailand Pawarit Lertdhamtewe A thesis submitted to the School of Law at Queen Mary & Westfield College, University of London in fulfilment of the requirements for the degree of Doctor of Philosophy February 2013 Declaration I, Pawarit Lertdhamtewe, confirm that the work presented in this thesis is all my own work. Where information has been derived from the other sources, I confirm that this has been indicated in the thesis. ---------------------------- Pawarit Lertdhamtewe Abstract Thailand’s plant protection regime presents a unique sui generis plant protection system, which is used as a model by several developing nations. The current Thai Plant Variety Protection (PVP) law has attracted some criticism, and whether or not farmers and breeders actually benefit from the system is in doubt. The questions this situation raises are: has Thailand adopted clear, coherent, and workable rules for plant variety protection in response to the needs of the nation? Is the introduction of intellectual property rights (IPRs) in agriculture via a PVP regime a desirable and contributory factor to the development of Thailand? More precisely, how might such an IPR regime be made compatible with Thailand’s development needs, bearing in mind the obligations the country has accepted through its membership of the WTO and adherence to the TRIPS Agreement? This thesis attempts to address these questions. By highlighting the salient features of the Thai plant protection regime, this thesis addresses the major concerns of the rights of farmers, local communities, and plant breeders. It is suggested that the protection of plant varieties is vital to Thailand, considering the fact that agriculture represents a fundamental economic activity and the livelihood of a large section of the total population; therefore, introducing IPRs in agriculture via the PVP regime is critical to the development of agriculture in Thailand. Thus, a new developmental approach to the IP protection of plant varieties is desirable to ensure the unique needs of the nation, the validity of national legislation, and the long-term promotion of agricultural development and sustainability in Thailand. Thailand can provide a more coherent framework for plant variety protection by carefully calibrating the PVP provisions and establishing a coherent set of rules in the form of a new legislative framework. It is concluded that a number of possible elements are available from a variety of instruments that exist in international law, notably the TRIPS Agreement, the UPOV Convention, the CBD, and the ITPGRFA. Lastly, the proposed regulatory reforms suggest that Thailand’s PVP provisions should be amended in three major areas, including (1) provisions for the rights of farmers and local societies, (2) legal protection for plant breeders’ rights, and (3) institutional apparatus governing plant protection issues in Thailand. Acknowledgements I would like to begin by thanking the late Dr. Herchel Smith, the Herchel Smith Funding Board, and the Faculty of Law, Chiang Mai University, Thailand for providing financial sponsorship. I wish to thank my supervisors, Professor Uma Suthersanen and Professor Graham Dutfield for their support and suggestions. My supervisors were exceptionally generous in providing detailed and constructive comments that were invaluable in finalising the manuscript for submission. I would also like to extend my thank to Professor David Kinley, Professor of Human Rights Law at Sydney Law School, Professor Michael Jeffery, QC, Professor Yong-Shik Lee, Professorial Fellow of the Law and Development Institute, Professor Kate Malleson, Academic Bencher of Middle Temple, Professor Luke Nottage, Professor Tim Stephens, Dr Kate Miles, and Dr Brett Williams of the University of Sydney for their invaluable guidance and mentorship. I am indebted to Mr Siri Lertdhamtewe, Deputy Secretary-General of the Secretariat of the Cabinet, Thailand, and Ms Natthanicha Lephilibert, Legal Officer of the Council of the State, Thailand, for their research support and assistance, and to Dr. Tanit Changtavorn, Ministry of Science and Technology, Thailand for taking the time and effort to discuss the various elements of this thesis, which was critical for bringing clarity to the substance. I also thank the staff at the Plant Variety Protection Division, Centre for Agricultural Information, the Department of Agricultures, and the Ministry of Agriculture and Cooperatives, Thailand for providing useful information and statistics on plant variety protection and agricultural conditions in Thailand, and I thank Ms Hayley O’Hagan and Mr Malcolm Langley for their kindness, compassion and administrative matters. Special thanks are due to Ms Margaret Combey, who read the manuscript in full and who was professionally supportive in her comments and generous in her counsel I also thank Mr Sun Thathong, PhD Candidate at the University of Cambridge & Diplomat of the Ministry of Foreign Affairs, Thailand, Mr Nguyen Dang Thang, PhD Candidate at the University of Cambridge & Visiting Lecturer at Faculty of International Law, Diplomatic Academy of Vietnam, Associate Professor Kaku Shun of Hokkeido University, Japan, Dr Hitoshi Nasu of Australian National University, Ms Juan He, PhD Candidate at the University of Sydney, and Mr Ravi Prakash Vyas, Advocate in Delhi, for their generous contributions. Special thanks are given to my Lertdhamtewe family, especially Mr Wathana & Ms Usachat Lertdhamtewe, and to the Mahattanasakul family, particularly Ms Sivaporn Mahattaanasakul for their unfailing support and encouragement. Lastly, I would like to express my deepest gratitude to Khunyai Ajan Mae-Chee Wanjai Chookorn for spiritual encouragement and for teaching me the Buddhist way of life. My doctoral dissertation could not have been completed successfully without all the above people’s helpful support, invaluable guidance and encouragement. Table of Contents Abbreviations ....................................................................................................... viii List of Boxes ........................................................................................................ xiii List of Tables ....................................................................................................... xiv List of Figures ....................................................................................................... xv Chapter 1 Introduction ................................................................................... 1 1.1 Background to the Research ........................................................... 1 1.2 Significance and Scope of this Study .............................................. 4 1.3 Hypothesis and Research Questions ............................................... 6 1.4 Research Methodology ................................................................... 7 1.5 Structure of this Thesis ................................................................... 8 Chapter 2 Relevant Laws and Institutions: An Overview ........................ 12 2.1 Background ................................................................................... 12 2.2 International Obligations for the Protection of Plant Varieties under the WTO/TRIPS Agreement ............................................... 13 2.2.1 Overview of the TRIPS Agreement .................................. 14 2.2.2 Background to Draft of TRIPS Article 27.3(b) ................ 16 i 2.2.3 Plant Variety Protection at the WTO ................................ 17 2.3 The UPOV Regime ....................................................................... 19 2.3.1 Development of the UPOV Regime ................................. 19 2.3.2 The UPOV Convention(s) ................................................. 21 A. The 1961 UPOV Convention ................................ 21 B. The 1978 UPOV Convention ................................ 22 C. The 1991 UPOV Convention ................................ 23 2.4 The United Nations Convention on Biological Diversity (CBD) . 25 2.4.1 The Relationship between the CBD and the WTO/TRIPS Regime .............................................................................. 25 2.4.2 Major Principles and Core Provisions .............................. 26 2.5 The International Treaty on Plant Genetic Resources for Food and Agriculture .................................................................................... 27 2.5.1 International Undertaking on Plant Genetic Resources .... 27 2.5.2 The Adoption of the International Treaty on Plant Genetic Resources for Food and Agriculture ................................. 28 Chapter 3 Intellectual Property, Plant Variety Rights, and Sustainable Development ................................................................................ 30 3.1 Introduction ................................................................................... 30 3.2 What Is Development? .................................................................. 31 3.2.1 General Idea ...................................................................... 31 3.2.2 History, Categories, and Concepts of Development ......... 33 A. Economic Development ........................................ 33 B. Human Development ............................................ 36 C. Environment: the Rise of the Concept of Sustainable Development ...................................... 37 3.3 Development and Intellectual
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