Effective Plant Variety Protection as Development Policy:
A Perspective for Thailand
Thailand is primarily an agricultural country. Although the country is in the process of industrialization, the agricultural sector still remains the backbone economy of Thailand. It specifically employs a large section of the country’s population. In 2008, the government of Thailand estimates that more than one-third of the Thai 60 million people (21,778,677) are engaged in this economic sector.1 A number of agricultural industries, such as rice, tobacco, maize, tea and coffee beans, and sugar industries also constitute one of the main sources of exports and domestic consumptions.2 For a country where agricultural sector is a large share of the domestic and export markets, the sector serves as a fundamental economic activity. A significant number of people engaged in this sector clearly indicate that the agricultural sector represents a livelihood for a majority of the Thai population. The agricultural sector in Thailand remains, however, underdeveloped and much of the populations in this sector are still living in poverty.3 Despite considerable efforts by the government of Thailand, the situation has not improved significantly, and poverty in this economic sector remains a serious problem in Thailand. Specifically, economic difficulties and instabilities of the agricultural sector in Thailand often leads to numerous social consequences, such as social class conflict, political instability, and national insecurity.4 This calls for the approaches that can lead to practical solutions to the prevalent problems.
What is the practical solution to the problem? The solution should come from economic development. Economic development or simply development is a process of the structural transformation of an economy from one based primarily on the production of primary products generating low income to a modern industrial economy that provides higher income.5 In all of the successful development cases, intellectual property (‘IP’) has been one of the crucial elements, as extensively studied by a number of leading scholars, such as Edwin Mansfield,6 Joseph Straus,7 and Daniel Gervais.8 The fundamental relationship between IP and development has also been recognized widely by several experts in the field, including Michael Blakeney, Carlos M Correa, and Graham Dutfield in their recent scholarships.9 Thailand does not typically have sufficient capabilities to support development in their primarily economic sector, agriculture, due to lack of capital and technological resources.10 An effective IP regime enables capital flux from abroad, creates transfer of technological advances, and economic development has been made possible by taking advantage of active research and development (‘R&D’), rapid upgrading of technological capabilities. The development strategy that incorporated IP policies into national development agenda has been employed successfully by several countries in the past with significant success. East Asian countries, such as South Korea, Taiwan, and Hong Kong, come to mind. What this article aims to achieve is modest. This article attempts to identify and illustrate the contribution of IP on economic development. It specifically proposes the idea that plant variety protection, as a branch of IP law, should be adopted and implemented as an instrument of development policy, designed to promote the primary economic sector, agriculture in Thailand. Yet this article does not presume that an effective plant variety protection system alone will facilitate development and relieve poverty in this sector. There are also a number of difficulties with promoting development of agriculture in Thailand and other factors would also be essential for promoting the development.11 Although the plant variety protection system alone may not be sufficient to facilitate development in this economic sector, it is nevertheless one of the most essential elements.
This article will first address the argument on the IP and economic development, which has been studied widely and employed successfully by what used to be developing countries in East Asian, such as South Korea, with success. The success story of the East Asian countries will also be introduced in the next part in order to show why IP protection is particularly important for the promotion of development. Part III will draw an argument for the implementation of a relatively effective plant variety protection as an instrument of development policy, and discuss the relevant regulatory framework. The legal framework for the protection of plant varieties, as represented by the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’)12 of the World Trade Organization (‘WTO’),13 and the International Convention for the Protection of New Varieties of plants (‘UPOV Convention’)14 are particularly relevant as those instruments regulate the rules of plant variety protection at international level. Part IV will then offer preliminary discussions on the regulatory framework for plant variety protection in Thailand currently represented by the Plant Variety Protection Act B.E.2542 (AD1999) (‘PVP Act’).15 Conclusion and some suggestions are placed on the final part, Part V, of this article.
* PhD Candidate and Herchel Smith Scholar, Queen Mary Intellectual Property Research Institute, University of London; LLM (Sydney), LLM (Macquarie), and LLB (Ramkhamhaeng). Contact at firstname.lastname@example.org. Portions of paper’s arguments on plant variety protection under the WTO/TRIPS Agreement have been presented at Symposium on International Economic Law, Australian and New Zealand Society of International Economic Law, and Sydney Centre for International Law at Faculty of Law, University of Sydney on 25 February 2011.
1. See the Centre for Agricultural Information, Report on Agricultural Economics in 2006-07 Years (Bangkok: Ministry of Agriculture and Cooperatives, Government of Thailand, 2008). At time of this writing, this report is the most recent report on agricultural information in Thailand, prepared by the government.
2. See Viboom Thepent, Agricultural Mechanization Development in Thailand (Paper submitted to the Fifth Session of the Technological Committee of APCAEM 14-16 October 2009, Los Banos, Philippines), at 2.
3. It is estimated that approximately 29 percent (7,211,000 peoples) in agricultural sector in Thailand earn less than 2 dollar per day see, Biothai, ‘Income of Agricultural household’, Biothai (1 April, 2011) can be accessed at <http://www.biothai.net/news/8370>. It is worth stating that the World Bank also uses the reference lines set at one dollar and two dollars per day in 1993 Purchasing Power Parity (PPP) terms as “poverty” lines.
4. Serious economic problems in agricultural sector in Thailand remain a primary cause of the fall of the democrat regime and the subsequent rise of dictatorship and the beginning of aggressive opposition protesters against the government of Thailand. For a recent discussion see, Richard Bernstein, ‘Letter from America: The Failure of Thailand’s Democracy’ The New York Times (Asia Pacific), 25 May 2010.
5. For a comprehensive discussion on economic development see, Yong-Shik Lee (eds), Economic Development through World Trade: A Developing World Perspective (The Netherlands: Kluwer Law International Law, 2008) (describing a number of strategies for promoting economic development in developing countries by using the international trade framework).
6. For a study of the economic effect of IP on development by Edwin Mansfield see, Edwin Mansfield, Intellectual Property Protection, Foreign Direct Investment, and Technology Transfer, International Financial Corporation Discussion Paper No. 19 (Washington DC, Work Bank, 1994).
7. See, Joseph Straus, ‘The Impact of the new World Order on Economic Development – The Role of Intellectual Property Rights’ (2006) 6(1) J. Marshall. Rev. Intell. Prop. L., 1–16;; and also, Joseph Straus, ‘Bargaining Around the TRIPS Agreement: The Case for Ongoing Public-Private Initiatives to Facilitate Worldwide Intellectual Property Transactions: A Comment on the Paper Presented by Professors David Lange, Duke University, and J.H. Reichman, Vanderbilt University’ (1998) 9 Duke. J. Comp. & Int’l Law, 91–107.
8. See,Daniel Gervais, ‘(Re)implementing the Agreement on Trade-Related Aspects of Intellectual Property Rights to Foster Innovation’ (2009) 12(5) J. World Intell. Prop., 348–370; Daniel Gervais, ‘The Changing Landscape of International Intellectual Property’ in Christopher Health and Anselm Kamperman Sanders (eds), Intellectual Property & Free Trade Agreement: International Intellectual Property Law Series (Oxford: Hart Publishing, 2007) 49–86; and also, Daniel Gervais (ed), Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPS-Plus Era (New York: Oxford University Press, 2007).
9. See,Graham Dutfield and Uma Suthersanen, Global Intellectual Property Law (Cheltenham: Edward Elgar Publishing, 2008); Graham Dutfield, Uma Suthersanen, and Kit Boey Chow (eds), Innovation without Patents: Harnessing the Creative Spirit in a Diverse World (Cheltenham: Edward Elgar, 2007); Michael Blakeney, Trade Related Aspects of Intellectual Property Rights: A Concise Guide to the TRIPs Agreement (London: Sweet & Maxwell, 1996); Carlos M. Correa, Intellectual Property and Foreign Direct Investment (New York: United Nations, 1993); Carlos M. Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Option (London: Third World Network, 2000); Carlos M Correa, Trade-Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement (New York: Oxford University Press, 2007).
10. Julia Sorg, ‘Thailand’ in Paul Goldstein and Joseph Straus (eds), Intellectual Property in Asia (MPI Studies on Intellectual Property, Competition and Tax Law Volume 9, Heidelberg: Springer, 2009) 303–329; and Howard A. Kwon, ‘Patent Protection and Technology Transfer in the Developing World: Thailand Experience’ (1995) 28 Geo. Wash. J. Int’l L.& Econ., 567–605.
11. Several factors, such as a stable and efficient government, a working institutional arrangement between the public and private sector, a consistent development policy, social peace, and educated population, access to capital, would also be relevant for the development in the Thai agricultural sector. For a discussion regarding condition governing the agricultural development in Thailand see, Takeshi Maotooka, ‘The Conditions Governing Agricultural Development in Southeast Asia’ (1967) 5(3) The Developing Economies, 425 – 548 (describing several core problems affecting agricultural development in Thailand).
12. Agreement on Trade-Related Aspects of Intellectual Property Rights in Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C (‘TRIPS Agreement’).
13. Marrakesh Agreement Establishing the World Trade Organization
, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) (‘WTO Agreement’).
14. International Convention for the Protection of New Varieties of plants, 33 UST 2703, 815 UNTS 109 (1961); revised by 33 UST 2703 (1978); revised by 815 UNTS 89 (1991), (‘UPOV Convention’) available at <http://www.upov.int/en/publications/conventions/index.html>.
15. The Plant Variety Protection Act B.E.2542 (AD1999)
(Thailand) (‘PVP Act’). The official Act was translated by Dr. Pinai Nanakorn, legal officer of the Foreign Law Division of the Office of the Council of State, and listed in the World Intellectual Property Organization’s Collection of Laws for Electronic Access database, available at <http://www.wipo.int/wipolex/en/text.jsp? file_id=129 781>.