Introduction

Thailand is one of the countries with many traditional sources of knowledge. Such as delicate and beautiful local arts and culture, traditional knowledge about the use of herbs to treat diseases or ailments, Thai traditional medicine methods of treatment, Thai traditional massage, as well as the discovery of local plants that can be used to Can develop into new plant species. All of these things arise from the creation of our ancestors until we have acquired knowledge that is valuable wisdom and is passed on from generation to generation by exchanging knowledge from one community to another without any restrictions. or for commercial purposes. This kind of knowledge is called "local wisdom".

Some types of Thai local wisdom related to invention or creation may not be new and not related to modern technology, but it is invaluable and beneficial to mankind in many ways such as herbal remedies, recipes, and nutrition, etc. (Posakanon, 2000). For this reason, the local wisdom of Thailand is widely used and there is a false claim of ownership of the local wisdom of Thailand or foreigners, which brings the local wisdom to hold ownership rights such as applying for patents or trademarks, as well as Applying local wisdom to further study for commercial application by foreign business organizations or agencies is an unlawful act. The smuggling of Thai plant genetic material out of the country for unauthorized use and misuse and misrepresentation of the origin of local wisdom. For example, in the case of Thailand having fought on the issue of adopting Thai massage postures, “Thai hermit Traditional Exercise”, in 2006, when a Japanese person applied to register a copyright, the word “Thai hermit Traditional Exercise” was a trademark and named. that company “Thai hermit Traditional Exercise Co., Ltd.” with the agency that receives the copyright of Japan according to the document registration number FOT 0002. However, after the case was brought to the court's hearing by the court's verdict, the term "Thai hermit Traditional Exercise" was the wisdom of Thailand, which the Japanese did not appeal in any way. It is therefore a good thing that Thailand can still preserve this local wisdom (Department of Intellectual Property, 2012).

At present, there is no international agreement that directly provides a system for the protection of indigenous knowledge. The protection of local wisdom, therefore, requires a system of intellectual property laws and specific laws (Sui generis). However, in Thailand, there is no direct law to protect local wisdom, only some laws may be related to the protection of local wisdom in some fields, such as the Plant Protection Act 1999, which protects native, endemic, plant species. Common native and new plant species which has the Ministry of Agriculture and Cooperatives as a supervisor and the Protection and Promotion of Thai Traditional Medicine Knowledge Act 1999, Protect herbal medicine textbooks, herbal conservation resources, and Thai traditional medicine wisdom by the Ministry of Public Health as a supervisory authority. Therefore, the protection of biological resources and indigenous knowledge of Thailand is divided according to the responsibilities of each agency. This leads to a lack of coordination among government agencies to monitor and monitor access to and misuse of indigenous knowledge.

The expected benefits of the study will reveal the nature of Principles of rights and guidelines for the protection of indigenous wisdom, draw conclusions and differences of Thai and foreign laws relating to the protection of indigenous knowledge, and can use the analysis results to guide the development of specific laws on Local wisdom of Thailand

Objectives

1. To study the characteristics, principles of rights, and guidelines for the protection of local wisdom.

2. To analyze Thai laws related to the protection of local wisdom and foreign laws.

3. To use the results of the analysis as a guideline for the development of laws to protect the local wisdom of Thailand in particular.

Methodology

This research is an analysis of Thai law relating to the protection of local wisdom by comparing it with foreign laws. by studying the types of local wisdom, including; Knowledge of the use of medical wisdom and cultural heritage, as well as studying the legal system, and management of the protection of local wisdom both in Thailand and abroad.

Results

Local Wisdom

The World Intellectual Property Organization (WIPO) has defined the term indigenous knowledge or Traditional knowledge as the content or subject matter of knowledge which is the result of intellectual activities and understanding of the original context, including practices, inventive skills. new, practice, and learning which constitutes a system of wisdom and knowledge contained in the traditional way of life of a person or community, or a system of knowledge that is interpreted from one generation to the next, which does not It is limited not only to technical science, but also to agriculture, environment, medicine, and therapeutic knowledge and knowledge of the use of genetic resources (Indananda, 2003). As for the definitions of things that are cultural-related intangibles such as national language, the local language, local customs, rituals, performing arts. These will use the term "intangible cultural heritage" which refers to practices, expressions, knowledge, skills, as well as tools, objects, artifacts, and cultural areas associated with them which a community, a group, or in some cases an individual recognizes as part of their cultural heritage. Intangible cultural heritage, which is passed from one generation to the next, is something that communities and peoples regularly build in response to their surroundings. It is their interaction with their own nature and history, and it brings them self-esteem and a sense of continuity that fosters respect for cultural diversity and human creativity (Department of Cultural Promotion, 2012).

Local wisdom refers to the body of knowledge gained from observation, experience, belief, learning, and understanding of human nature to rely on or take advantage of it to improve the quality of human life. In addition, indigenous wisdom is related to the way of life, society, and culture of the community by being passed down through generations over a long period until it is a generally accepted pattern. However, local wisdom may be shared or spread from one community to another until it can be applied and developed to have a specific pattern according to the conditions in each community. Therefore, no one can claim ownership of local wisdom decisively (Bureau of Farmer Development, Department of Agricultural Extension, 2021).

Therefore, the meaning of the term "local wisdom" refers to the body of knowledge arising from observation, experience, belief, learning, as well as human understanding of nature to rely on or take advantage of it. Improve the quality of human life. In addition, local wisdom is related to the way of life, society, and culture of the community, having been passed down through generations over a long period until it is a generally accepted pattern. However, local wisdom may be shared or spread from one community to another until it can be applied and developed to have a specific pattern according to the conditions in each community, thus making no one able to claim categorical ownership of local wisdom.

Local Wisdom and Community Rights

Based on the idea that natural resources are guaranteed by customary law as “Common Property” with the emergence of state law, the state took the resources of the state based on the principle. “Sovereignty” means that the body of knowledge which is indigenous knowledge must be implicitly vested in the state. Subsequently, there was the idea that local resources and wisdom should be the “Common Heritage of Mankind”, which is the exception of State Sovereignty. Thus, resources and local wisdom cannot be owned by the state or any person, but are public property for the benefit of mankind. (Mallikamarl, 2002). Then from the principle of the shared heritage of humanity, which views natural resources and local wisdom as “Common Property", in which the use and maintenance of this property are often determined by community rules or by group customs, such as forest-guarding communities, there are common rules that determine how the use of forest hunting is carried out, any way to do it, anyway not to do it. For example, it may be stipulated that hunting forest products by destroying forests or forest resources is prohibited, if one does not comply it will be considered a violation of community customs and forced by members of the community, etc. (National Bioengineering and Technology Research Center, National Science and Technology Development Agency, 2007). Therefore, indigenous knowledge and Community Rights are related due to the formation of groups of people with a common purpose, socially resident, bounded by one or more communities or ethnic groups. This is not limited to rural people but also urban people. As a result, these groups have social relationships, shared cultures, shared resource allocations, and shared interests, in which they have the rightful authority according to customs or agreements that individuals in society hold together (Secretariat of the House of Representatives, 2012). Community rights, therefore, represent the close relationship between the way of life of a community and the traditions and cultures that characterize that community. There are unwritten rules, but they may be sacred commandments that communities uphold in common practice. When it has been practiced for a long time until it has developed into a pattern. and became a commandment of the community. The ordinance deals with the relationship between man and man, man and nature, and man and supernatural. The law of the community will determine the extent of power that each member of each position should have in living together. Power is what everyone accepts under shared values, a legitimate power that is the “right system” of the community itself.

Protection of Local Wisdom Under International Agreements

Characteristics of local wisdom are diverse concerning natural resources and the human way of life such as the body of knowledge from the utilization of natural resources, biodiversity, plant species, food, disease treatment, language, art, and culture, etc. Therefore, the protection of indigenous knowledge is unclear, coupled with different concepts between countries that own rights to local wisdom who want to preserve indigenous knowledge from being held or monopolized by developed countries, who want to have access to natural resources and local wisdom, claiming to be the common heritage of all of humanity that can be accessed by all without reservations. Consequently, demands from developing countries, most of whom are victims of natural resource and indigenous knowledge rights violations, have arisen, and finally, international agreements on protection related to indigenous knowledge have emerged. This can be summarized as follows:

Convention on Biological Diversity (CBD)

The Convention on Biological Diversity was established with three main objectives; (1) For the conservation of biodiversity. (2) To enable sustainable use of the elements of biodiversity. (3) To share benefits from fair and equitable use of biodiversity (Santasombat, 1999). However, the criteria related to the protection of local wisdom under the aforementioned convention are: to access and utilize local wisdom, the benefits resulting from the fair and equitable application of local wisdom must be shared with the country that owns it or holds it. And to access and utilize local wisdom or resources, the consent of the country of ownership of the local wisdom or resource must be obtained first.

Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity

It was developed based on the idea that a country has sovereign rights over natural resources within its jurisdiction. Therefore, access to genetic resources in any country must be legally permitted in that country and, when permitted, must be negotiated to agree to share the benefits arising from its use. The benefits that are shared can be monetary benefits such as fees, royalties, research funding, and non-monetary benefits such as joint research, technology transfer, and patent ownership. The importance of this Protocol covers the use of genetic or biological resources, be it plants, animals, microorganisms, and components of living organisms in general, which have access to be used in various activities whether research and development as a product or use in the food industry, agriculture, medicine, or cosmetics. It also covers local wisdom or body of knowledge in utilizing biological resources and sharing benefits from genetic resources.

Protection of Local Wisdom

The Food and Agriculture Organization of the United Nations, another international organization that focuses on the protection of local wisdom is the Food and Agriculture Organization (FAO). In 1993, the FAO established the International Code of Conduct on International Undertaking on Plant Genetic Resources for Food and Agriculture, which protects the rights of farmers (Farmers' Rights), and indigenous groups related to plant genetic resources for food and agriculture (Article 9, International Undertaking on Plant Genetic Resources for Food and Agriculture). This is considered as a contribution to the protection of local wisdom as well. But since this practice is not legally enforceable, the protection of farmers' rights is ineffective. The FAO, therefore, initiated a draft of an international treaty that is legally enforceable to align it with the principles of the Convention on Biological Diversity. Protection of indigenous knowledge was also a topic that was raised within the framework of farmers' rights, for which the FAO eventually succeeded in drafting the International Treaty on Plant Genetic Resources for Food and Agriculture (Bureau of Farmer Development, Department of Agricultural Extension, 2021), which has a provision on direct indigenous knowledge in Article 9.2(a) that requires the Member States to take measures to protect indigenous knowledge concerning plant genetic resources for food and agriculture.

Protection Of Folk Art and Cultural Heritage

From the less successful approach to the protection of folk art according to the Berne Convention. In 1976, the World Intellectual Property Organization, together with the United Nations Educational, Scientific and Cultural Organization, UNESCO, convened an expert meeting in Tunis to determine the appropriate approach for developing countries to draft. Copyright law with the issue of protection of folk art taken into consideration, and finally, the Forum created a Tunis Model Law on Copyright for Developing Countries. However, after the creation of a legal system for the protection of folk arts and culture, it was not as successful as it could have been. The World Intellectual Property Organization has appointed the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, to extend protection to all types of indigenous knowledge. and lays down practical principles between the intellectual property system and the interests of practitioners and maintainers of cultural traditions.

In 2005, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted, under the supervision of UNESCO, to protect and promote diversity of cultural expression from principles. important under the agreements or cooperation between the countries mentioned above. It was found that protection of local wisdom is largely related to natural resources, only the Prior Informed Consent (PIC), and Equitable Sharing of Benefit are sufficient frameworks. to protect local wisdom. But that's just a general principle that lacks details about the protection of indigenous knowledge, such as who is deemed to be entitled to consent or who is deemed to be a Provider, for example. In addition, the protection of local wisdom has many limitations, such as cooperation among the countries that are the source of local wisdom, there is no unity in directing the framework agreement on the protection of indigenous knowledge. Problems limiting the condition of internal law enforcement which can only be done in the Kingdom of Thailand, therefore, foreigners for smuggling genetic material, biological resources out of the country, or exploiting indigenous knowledge abroad cannot be punished (Christoph & Mira 2008; WIPO General Assembly, 2012); WIPO. World Intellectual Property Organization. (2005).

Protection of Local Wisdom Under Foreign Law

Brazil

It is the largest and most populous country in the Latin American region, with a long history and culture and biodiversity, and abundant natural resources. Brazil attaches great importance to the protection of local wisdom by enacting Provisional Measure No. 2.186-16/2001, Law 11.284/2006 in 2001 covering access to genetic heritage. Protection and access to indigenous knowledge related to heredity. Hereditary means genetic information, whether in whole or in part, of plants, animals, microorganisms, whether in the form of molecules or substances obtained by incineration. The waste of living things and the extracts obtained from living things, whether living or dead. Local wisdom is information or practices of a person or group in a local or indigenous community that has value or potential to be valuable and related to heredity. The purpose of this law is to control access to the genetic system and access to indigenous knowledge related to heredity, fair and equitable sharing of interests in the benefits derived from the use of indigenous knowledge, including access to or Technology transfer for conservation and use in biodiversity. However, this law does not protect human heredity and the exchange or distribution of heredity or related indigenous knowledge that is practiced by indigenous or local communities for the benefit of the community and based on customs that must be preserved, this kind of transmission or exchange should be done freely to maintain local customs (Christoph & Mira, 2008; WIPO General Assembly, 2012; WIPO World Intellectual Property Organization, 2005).

India

Provides biodiversity protection with the Biodiversity Law of 2002, aimed at the conservation of biodiversity, sustainable use, and equitable and equitable sharing of benefits from Use various biological and intellectual resources. This law protects the wisdom of indigenous peoples concerning biodiversity. Biodiversity, which refers to the diversity of organisms from different sources and the complexity of ecosystems in which they are part. One, including species diversity or between species in the ecosystem. However, in view, this law does not define who the right holder is. Instead, it defines utilitarian claimants as including creators and possessors of wisdom and information related to the use of innovative and practical biological resources related to their uses and applications.

People's Republic of China

It is a country that attaches great importance to the development of local wisdom and biological resources, especially local wisdom in medicine. China protects medical wisdom by Patents Law the People's Republic of China. This law protects medicinal products developed from traditional Chinese medicine. The processes involved as well as utilization in a new way in which the product is already known. However, such production must have all the qualifications as required by general patent law i.e., newness, higher production steps, and industrial application. Therefore, it can be said that China's patent system does not provide any protection for indigenous knowledge. Because indigenous knowledge lacks newness, but if it is to protect innovation or invention developed from indigenous knowledge and such production must meet the conditions of the patent system normally. It can be seen that China does not have specific laws for the protection of local wisdom and biological resources, but only if it is the application of an intellectual property system, especially patents for the protection of products or processes related to Chinese medicine.

Philippines

A country rich in biological resources, in 1997 the Philippine government enacted the Indigenous People's Rights Act (IPRA). This Act is one of the important laws in the field of human rights and social justice. It is also known as one of the Philippines' most respected laws for the long-standing participation and struggle of peoples, especially indigenous rights. This Indigenous Rights Act aims to raise awareness. Protect and promote the rights of local communities and indigenous peoples, establishing a system for the protection of intellectual rights that local communities and indigenous people have created together, or develop genetic or biological resources in their communities to become a body of knowledge. or local wisdom and to give indigenous and indigenous communities the right and independence to have the power to arbitrate and participate in the supervision and administration of the indigenous knowledge they possess or invent (Halewood, 1999; Michael, 2021).

Protection of local wisdom in Thailand

Thailand is one of the countries with diversity in local wisdom, which has long been associated with the way of life of the community or Thai society. From the past, Thailand has been infringed on local wisdom by a country that is equipped with capital and advances in science and technology by applying local wisdom to register intellectual property to claim ownership and to prevent other people from using it? produce what is protected. This circumstance would cause damage to Thailand and not be able to exploit such local wisdom any further, as it resulted in an infringement of intellectual property rights. From this circumstance, Thailand has begun to realize the right to own local wisdom more and more and strive to maintain its right as the owner of local wisdom to survive, while protecting it. not to take advantage of local wisdom and apply for patent protection without acknowledgment of ownership rights and without appropriate and fair benefits or compensation to those who are Owners in local wisdom directly. Currently, Thailand has laws related to local wisdom, namely the Plant Protection Act 1999, and the Wisdom Protection and Promotion of Thai Traditional Medicine Act 1999. Both of these laws protect what is only a part of local wisdom, not cover local wisdom as a whole. Therefore, to protect other types of indigenous knowledge in addition to what these two laws have already provided, the general law must be applied to protect local wisdom. The problem with this is that these general laws are not enacted specifically to protect indigenous knowledge, so these general laws have to be interpreted to match the protection of indigenous knowledge. In practice, interpreting local wisdom to be protected by laws that were not directly formulated with the intent to protect local wisdom and thus render local wisdom not truly protected. For this reason, Thailand came up with the idea of protecting local wisdom by using a specific legal system by creating a draft law relating to the protection of local wisdom, namely “Draft Local Wisdom Protection Act, B.E…” The main objectives of this draft law are to protect local knowledge from further violations, as well as to prevent unfair commercial exploitation.

Conclusion

It can be seen that within the context of the international conventions in this article, the protection of indigenous knowledge is mentioned. However, there is no specific provision of international law that directly provides for the protection of indigenous knowledge. Internationally, the World Intellectual Property Organization (WIPO) and its member states, including Thailand, have attempted to create legislative provisions to specifically protect local knowledge. At present, a draft provision on the protection of local wisdom of the World Intellectual Property Organization has been drawn up. However, when the law is still a draft law, it cannot be enforced to protect local wisdom either. Therefore, if a country wants to protect its indigenous knowledge exclusively within its own country, it must enact internal laws to protect its indigenous knowledge specifically. This can be seen from the internal laws of countries such as Brazil, India, the People's Republic of China, and the Philippines.

Recommendations

1. Creating a database on local wisdom and cultural arts. There should be a compilation of the national wisdom database of the nation so that there is a link between the agencies for unity, possibly establishing an agency that directly supervises and is responsible for the information of the nation's wisdom. The application of information systems is therefore one of the channels for preserving Thai local wisdom by serving as a source of information for studying and researching people in the nation to extend the body of knowledge that is local wisdom to be very advanced and up-to-date. Moreover, the database preparation base. It can also prevent the use of local wisdom to seek protection from foreigners under intellectual property law.

2. The management of access and benefit-sharing offers the following:

2.1 The government should improve the management of access and benefit-sharing in Thailand by providing agencies at various levels at the national, local, and community levels to act to coordinate local people's cooperation and help Set a direction for fair access and benefit-sharing, not just requiring local governments to approve access to resources.

2.2 The government should establish a system for monitoring results of access to biological resources at the local level (Check Point), it monitors the use of resources beyond the agreement by giving local communities the right to oppose or deny access to biological resources.

2.3 The right to negotiate the sharing of benefits and the right to claim damages from access to biological resources or local knowledge. The government should therefore support the creation of an investigation mechanism in which people in the area participate in investigating the damage to the local community's local wisdom, environmental resources, and ecosystems.

3. The amendment of the Thai intellectual property law system to close the opportunity to bring local wisdom or folk art to apply for protection of intellectual property rights, especially patent law. The regulations or procedures for granting patents should be revised by stipulating those exemptions from granting patents to local wisdom or knowledge that is directly local knowledge should be made. This is to prevent the misuse of local wisdom. Therefore, there should be a procedure for the patent applicant to be obliged to inform the source of knowledge or local wisdom related to the invention for which all protection is sought. Including adding a provision for revoking patents if, later on, it is found that the invention that is applying for protection has wrongful access to local knowledge or rights that are duplicated with the knowledge of the local community.

4. Thailand should build cooperation with countries that own local wisdom together to protect local wisdom clearly and unified, thus creating bargaining power in the international arena with developed countries to see the importance and respect for the rights of Local wisdom. In addition to the pre-consent access and fair benefit-sharing principles traditionally demanded the protection of indigenous knowledge, there should be a call to further address the issue of the protection of indigenous knowledge; such as clearly defining what to be protected and covering local wisdom, creating compulsory conditions or measures to suspend access to local wisdom if rights are violated or damage to local wisdom, remedies for reputational damage and damage caused by the misrepresentation of the source of local knowledge, period of protection, and penalties, etc.

References

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Received: 16-Dec-2021, Manuscript No. JMIDS-21-8693; Editor assigned: 18-Dec-2021, PreQC No. JMIDS-21-8693 (PQ); Reviewed: 07-Jan-2021, QC No. JMIDS-21-8693; Revised: 27-Jan-2022, Manuscript No. JMIDS-21-8693 (R); Published: 16-Jan-2022