The advance of biotechnology and the fragility of the legal measures for the protection of biodiversity leave traditional knowledge dangerously exposed to actions of biopiracy. Brazil, whose territory is home to 23% of the biodiversity of the planet, is one of its main targets. Ayahusca, for example, a medicinal plant from the Amazon basin, used by different indigenous communities in rituals and by the Santo Daime sect, was patented by a multinational laboratory that also managed to get authorization to make commercial use of it. Curare, a plant extract known to various Brazilian tribes, which is patented by a multinational, formed the basis for muscular relaxants that are produced today by three laboratories, and are freely sold in the United States. The examples are multiplying, in Asia, Africa, the Caribbean and in Latin America.
In the case of Brazil, whose biodiversity has a potential value estimated at US$ 2 trillion, according to calculations by the Institute of Applied Economic Research (Ipea), the loss of money is huge. And that is without saying that biopiracy also dilapidates the nation’s cultural heritage. It is important to point out that protecting traditional knowledge does not mean claiming for the witchdoctor the status of co-inventor of a molecule. It is actually about seeking ways and means for making it feasible to share the benefits that result from the exploitation of these resources by laboratories and multinationals with the communities that, in the course of several generations, have built up knowledge on species of plants and animals with pharmaceutical, nutritional and agricultural properties.
Just like the major part of developing countries, Brazil does not yet have a system of legal protection for the intellectual property rights of traditional communities. “The patents system, today, protects what innovates, what develops new technologies. It is no protection for the holder of biodiversity or of traditional knowledge” says José Graça Aranha, president of the National Institute of Industrial Property (INPI). “We have to find mechanisms that can cover, by means of the existing legislation or of a sui generis protection system, these holders of biodiversity”
The challenge of seeking the most suitable way of protecting genetic resources and traditional knowledge led the World Intellectual Property Organization (WIPO) to create, in 2000, a special intergovernmental committee, made up of representatives of the 175 member countries and of organization like the United Nations Food and Agriculture Organization (FAO), the United Nations Educational, Scientific and Cultural Organization (UNESCO) and non-governmental organizations from all over the world, in an attempt to find a solution for this problem. Even though there is no consensus on the effectiveness of the existing legislation, WIPO has recommended nations to register, on a database, for example, information on their traditional knowledge in the public domain, including, if possible, indications on its use.
“A major part of traditional knowledge is oral, undocumented, and there is no way of presenting evidence to contest the filing of a patent regarded as irregular” explains Nuno Carvalho, a director of the WIPO. American law, for example, does not authorize the challenging of patents deposited in the United States on the basis of oral tradition in foreign countries. He recalls the case of two scientists from the University of Wisconsin who patented the active ingredient of turmeric, a root known for thousands of years in India for its wound healing properties. The registration was contested, but maintained, until India presented documentary proof: a passage from the Vedas Upanishads, a Hindu scripture probably from the turn of the 16th century, where the medicinal use of turmeric is described. “The patent was overturned” Carvalho recounts.
The right to say no
Despite the lack of legal definition, some countries have already adopted measures to protect their cultural heritage. China’s patent office gathers information on the uses, traditions and customs in the areas of medicine and agriculture, and suggests that communities should request patents for the most innovative knowledge. India, which almost lost turmeric, is developing a database on which all the available traditional knowledge is being compiled. All this data receives a classification according to its use, and is made available to patent examiners. “This is prevention” Carvalho underlines.
Venezuela has adopted a different measure. There, three years ago, the Autonomous Service of Intellectual Property, linked to the Ministry of Science, Technology and Industry, created a portal with over 15,000 references cataloged in the areas of chemistry, pharmaceuticals and handicraft, among others, with an indication for applications and even recommendations from the witchdoctor regarding the risk of interaction with other products. Those interested have access to through the payment of a fee to the State, later shared out amongst the local communities.
These different systems for protecting knowledge will be made public this month, at the third meeting of the WIPO’s inter-ministerial committee in Geneva, with the intention of providing input for other countries. “We will be making public two or three examples, with the authorization of the governments” Carvalho reveals. He recognizes, however, that this is a question of “defensive” measures, which do not guarantee for the communities the full exercise of the right to say no.
In this legal interregnum, the WIPO has tried to place at the disposal of the member countries information on jurisprudence and models of standard contracts for the use of biodiversity and knowledge, signed between traditional communities and companies, like the one that consolidated a partnership between the Aguarunas, in Peru, and Monsanto-Searle. And the communities are beginning to prepare themselves for defending their heritage. At the beginning of May, the INPI put on the first course on intellectual property for lawyers from Brazilian indigenous communities, with the support of the WIPO.
The course had 20 participants, of which 13 Indians, and they received training about trademarks, patents and copyright. “It is no longer a battle with bows and arrows, but about appropriating new knowledge that can be used to the benefit of the communities, whether by protecting our traditional knowledge, or by the patenting of medicinal plants, as a way of reverting to the community part of the profits earned” explains Lucia Fernanda, the legal advisor to the Kaingang-Guarani community, from Rio Grande do Sul, who took part in the course. At the end of the course, the group decided to create a permanent commission for studying intellectual properties, so preparing itself to follow up the understandings and the drawing up of contracts for the exploitation of local biodiversity that may be negotiated between the communities and laboratories.
CBD vs. TRIPS
The WIPO, however, regards measures like these that are being adopted by Brazil as defensive strategies, and is seeking more effective actions: it has created a technical committee of experts, to see if there is any possibility for classifying traditional knowledge, using the same criteria as the international patent classification. The goal is to try to create a mechanism that allows this information to be available to the patent examiners. They can not refuse registration for not knowing that it is community knowledge, as this knowledge is not classified and because there are no search engines. But many find the idea risky, since it presupposes public exposure of knowledge that merges with the identity of the traditional communities. “Some things can be published, but there are characteristics of our cultural heritage that are up until now protected, and which we should preserve, for being intrinsic to our culture” reasons Kaingang Indian Fernanda.
On another front, the WIPO is seeking to harmonize the World Trade Organization (WTO)’s intellectual property agreement, known as TRIPS (Trade Related Intellectual Property Rights) and the Convention on Biological Diversity (CBD), signed in Rio de Janeiro during ECO-92, which defined as basic objectives the conservation, the sustainable use, and the just and equitable sharing out of the benefits arising from the use of genetic resources. TRIPS, concluded in 1994, is not specific, and, with regard to biodiversity, allows intellectual property rights over microorganisms, non-biological and microbiological processes. Making the two agreements compatible calls for the inclusion in TRIPS of a provision that addresses the protection of traditional knowledge and of genetic resources.
“Brazil is advocating an amendment to TRIPS, with a view to incorporating requirements for identifying the genetic material used in the invention, for sharing the benefits with the holders of genetic resources, for prior consent given by the holders and for traditional knowledge associated with the invention” explains INPI’s president, Graça Aranha. At the ministerial conference of the WTO, in Doha, Qatar, which took place last November, a few proposals had already been presented to make the two agreements compatible. “But this is a debate for several years” foresees Carvalho.
A sui generis law
The advance of biotechnology and genetic engineering has just heated up the debate over the protection of biodiversity and of traditional knowledge, which actually started at ECO-92, when the CBD was signed, Graça Aranha recalls. The convention recommended that the FAO and the participating countries draw up a Plan of Global Action (PGA) for Genetic Resources in Food and Agriculture, which was approved at the International Conference on Genetic Resources, held in Leipzig, in 1996. The PGA was adopted by all the countries that are part of the Genetic Resources Committee, including Brazil. “In the ambit of the FAO, it will be pertinent to define how to make all this wealth, once it is protected, will be transformed into an effective improvement in the living conditions of our population, reducing deprivations, in particular in countries that are as rich in biodiversity as they are in social inequalities” says Graça Aranha. The other focus for discussion, in which Brazil is playing an active role, is on the compatibility of the TRIPS agreement.
Brazil is also teaming up with those that advocate the idea of a new legal landmark that protects and preserves biodiversity. “This is just as fundamental today as intellectual property rights were at the end of the 19th century, with the Paris Convention” is Graça Aranha’s comparison, referring to the international treaty that up until now governs the registration of patents and is the basis for the defense of trademarks and industrial secrets.This is also the will of the 25 indigenous nations, whose representatives met in December last year, in São Luiz, Maranhão, at a meeting sponsored by the INPI.
In the document, named the São Luiz Letter, they propose the adoption of “a universal instrument for legal protection of traditional knowledge, an alternative system, sui generis, distinct from the regimes for protecting intellectual property rights”, and that the Brazilian government “should adopt a policy of protecting biodiversity and social diversity, intended for the sustainable economic development of the indigenous peoples”. They demand that the government recognize traditional wisdom as knowledge and science, “giving them equitable treatment like western scientific knowledge”, establishing a policy for science and technology that recognizes its importance, that creates a database and records this knowledge, and a fund – financed by the governments and run by an indigenous organization – that has the objective of subsidizing research carried out by members of the communities. In the assessment of Marcos Terena, the coordinator of indigenous rights of the National Indian Foundation (Funai), “it is the fragility of the protection of traditional knowledge that generates biopiracy”.
On the national plane, some countries have very clear rules for protecting traditional knowledge. Costa Rica, for example, dedicated a chapter of its Biodiversity Law, approved in 1998, to the “protection of intellectual and industrial property rights”, and recognizes the existence and validity for the forms of knowledge and innovation and the responsibility of the State for granting this protection. The Register of Intellectual and Industrial Property, for example, must, obligatorily, consult the National Commission for the Management of Biodiversity, before granting the registration of intellectual or industrial property to innovations that involve resources of biodiversity.
In 1996, Ecuador approved a little law for the protection of biodiversity, which limits itself to declaring that “the Ecuadorian State is the owner of the rights of property over the species that make up the country’s biodiversity”. The commercial exploitation will be subject to special regulations, but provided the ancestral rights of the indigenous communities are guaranteed, with regard to the knowledge and the intangible elements of biodiversity. Under debate is a proposal for regulating collective rights relating to biodiversity, drawn up by the National Indigenous Confederation of Ecuador and the NGO Acción Ecológica.
In Peru, a group made up of representatives of indigenous communities, NGOs and representatives of various government ministries is writing a bill to govern the access to genetic resources and to protect traditional knowledge. The law will establish rules for carrying out contracts between the communities and companies interested in the commercial exploitation of this knowledge, and set a percentage of the profits generated by processes or products developed on the basis of traditional knowledge. These resources will make up the Development Fund for the Indigenous Peoples of Peru.
In Brazil, biodiversity and traditional knowledge are protected by Provisional Measure 2186 of 2001, which conditions access to natural resources to the authorization of the federal government, provides for the sharing out of benefits, if use is made of them or they are marketed, and recognizes the right of indigenous and local communities to decide on the use of their knowledge linked to genetic resources. Another few projects are going through the channels of the National Congress, among them, one by Senator Marina Silva (PT-AC – Workers’ Party form the state of Acre), already approved by the Senate, which lays down the conditions for authorizing access to national genetic resources and determines the creation of a Genetic Resources Commission, made up of representatives of the government, scientists and indigenous and local communities.
Brazil is also studying the suggestion of the WIPO, already taken up by several countries, to create a database of traditional knowledge. Graça Aranha reckons that cataloging the information is “a clear way of charging [RJS1]”. He makes the proviso, however, that Brazil already has taken some initiatives to protect this knowledge – “the provisional measure is an example of this”, he stresses – and the creation of a database of this kind is a difficult measure to implement, since much information “does not belong to just one tribe”. The question: “Who is going to receive this benefit?” And he himself replies: “The only way of overcoming these difficulties is to widen the debate”.Republish