TCS Daily


Of Rice and Men

By Pichit Likitkijsomboon - July 8, 2005 12:00 AM

For U.S. and Thai trade negotiators meeting next week in Montana, intellectual property rights protections for plant breeders and pharmaceutical innovators are proving to be the most contentious issues in negotiating a Thailand-US Free Trade Agreement (TUSFTA).

The U.S. position is clear as can be seen from its free trade agreements with other countries: It will not compromise protections established in world trade talks such as the World Trade Organization's TRIPS (trade-related aspects of intellectual property rights).

Some non-government organization (NGO) activists in Thailand have always opposed protecting plant breeders' rights. Recently, the chairman of Thailand's National Human Rights Commission (NHRC) together with a group of anti-trade NGO activists held a press conference in Bangkok, demanding that the Thai government assure that the new agreement would have no negative effect on Thai jasmine (fragrant) rice and other biological resources. They claim TUSFTA would prove particularly damaging to Thai jasmine rice growers by allowing U.S. firms to patent Thai biological resources, including jasmine rice, without restriction. They also demanded that genetically modified organisms be banned in the agreement.

The NGOs' use of Thai jasmine rice is cunning as the rice has a strong psychological attachment for most Thais. They are very proud of it and would react strongly and emotionally if it were viewed as being touched or stolen by foreign breeders. So NGOs have always used jasmine rice to incite opposition to TUSFTA among the Thai public.

But these spurious claims and denouncements are mostly just a mask for a general anti-trade sentiment. The claims at best reflect misunderstanding; at worst, they intentionally distort of the facts.

TUSFTA is hardly unique in protecting plant breeders' rights. Thailand's own Plant Varieties Protection Act BE 2542 (1999) provides protection for plant breeders' rights for new varieties, even as it protects indigenous Thai species from biopiracy.

The Thai law is derived from a mixture of principles in the International Convention on Bio-Diversity (CBD), of which Thailand is a signatory. Under the law, applicants for protection need not be Thai nationals. They can be persons or firms in countries that allow Thai citizens or firms to apply for the same protection in those countries, or nationals of a country that is a signatory to the same plant-varieties convention as Thailand. Or they may be business operators in Thailand or in a country that is a signatory of the same convention as Thailand.

U.S. citizens or firms may apply for breeders' rights protection in Thailand under this act provided that they fulfill the requirements described by the act. And one of the requirements, obviously derived from the CBD, is that the applicant must have a benefit-sharing agreement with the local community if a new variety of plant is derived from "a localized variety," or the applicant must contribute to the Plant Varieties Protection Fund administered by the relevant government agency if the new variety is derived from "general or wild varieties" in Thailand.

Thai law further stipulates that any breeder must apply for permission from the authorities before starting any research on plant varieties in Thailand. Many argue that such restrictions are impractical and constitute a serious obstacle for the development of bio-technology in Thailand. Nonetheless, the protection of breeders' rights is already there, in existing Thai law.

In addition, U.S. access to Thai jasmine rice varieties has nothing to do with TUSFTA's chapter on Intellectual Property Rights. Foreign research agencies, including U.S. researchers, have had access to the Thai jasmine rice variety for many years already through the International Rice Research Institute.

And it is not even possible for anyone, including a U.S. firm, to win a legal patent on existing Thai jasmine rice varieties nowadays because a criterion for patentability is that the variety be new and novel, whereas the Thai jasmine rice was discovered a very long time ago and thus would not qualify for patent protection.

Finally, should a U.S. multinational succeed in developing a new variety of fragrant rice that did meet all the requirements for protection in Thailand or abroad, that protection doesn't prevent Thai farmers from growing the existing strain of Thai jasmine rice. The protection covers only the new variety, so it has no affect on the existing one. Thai farmers can continue to grow their strain of jasmine rice as before.

The only economic implication of such protection is that existing Thai jasmine rice would face competition from the new variety if the license holder decides to produce and export it to the world market. But that is the case already, as Thai jasmine rice now faces competition from several other strains in India and Australia, for a long time already. Yet, in the face of the invention of new varieties and competition from them, Thai jasmine rice has successfully not merely preserved but expanded its overseas market. What the critics miss is that globalization in the rice trade has worked to Thailand's benefit. TUSFTA will enhance the benefits of such trade.

Pichit Likitkijsomboon is on the faculty of economics at Thammasat University.

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