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Nuno Pires de Carvalho: In defense of biodiversity

Wipo adopts the term biosquatting for acts of appropriation of traditional knowledge

LEO RAMOSNuno Pires de Carvalho is the head of the Genetic Resources, Biotechnology and Associated Traditional Knowledge Section of the World Intellectual Property Organization (Wipo), in Geneva. In an interview for the Pesquisa FAPESP magazine, he commented on the registration of the cupuassu trademark and the filing of the patent over processes for extracting the oil and fat from its seeds by Asahi Foods Co Ltd., from Japan, explained the reasons why Wipo is replacing the term biopiracy by biosquatting, and detailed the measures which have been adopted for the protection of biodiversity and the local communities.

Can the registration of the trademark and patenting the process for producing the oil and the fat from cupuassu outside Brazil be characterized as an act of biopiracy?
When one talks of biopiracy, or, more correctly, of biosquatting, two aspects have to be taken into account: the first is the alleged misappropriation of intangible assets, such as symbols, designs and traditional technical knowledge belonging to indigenous and local communities. The second is the offense to the identity and to the cultural values of these communities. Without going into the merits of it, is seems that the registration of the word “cupuassu” as a trademark to designate food products goes against the essential prerequisite for trademarks being eligible for registration, which is their distinctive quality. It would be the same thing as registering the words “orange,” “papaya,” “banana,” etc., to identify food products.

It seems obvious that a word normally used to identify a fruit does not offer sufficient distinguishing quality to justify its registration as a trademark to distinguish products derived from this fruit from those that are made by the competitors. It is true that there is no international treaty establishing criteria for being eligible for registration. Only the Trips Accord, in its Article 15.1, refers to the “distinctive quality” of trademarks eligible for registration. It will therefore perhaps be possible to invoke the nullity of these registrations abroad, provided that any statues of limitations are observed.

In the case of the patents, the whole question lies, in the first place, in knowing if it is true that the process for producing fat and oil from cupuassu seeds is traditionally used by communities in the Amazon. It seems not. According to information contained in the European patent in question, only the use of the seeds for feeding cattle and as fertilizers was known traditionally. It seems that the process for extracting the fat from cupuassu seeds is far more difficult than with cacao, and that no one knew how to do it until recently. Embrapa went so far as to ask for a patent from the National Institute of Industrial Property (INPI) over a “Process for obtaining semi-bitter cupulate in powder and in tablets with white milk using cupuassu seeds,” in 1990.

The request remained held up at Inpi, since in those days Brazilian legislation did not allow the patenting of food making processes. It was filed again in 1996, then, therefore, in the light of the new law on industrial property. The request went so far as being approved in 1999, but was filed away in September 2000. Actually, it remains to be found out if the Japanese company’s process is identical, partly or wholly, to Embrapa’s, or if it merely modifies some unimportant aspects, without the necessary inventiveness. The second step – and if it is proved that the Japanese invention is not new and that the patents could be contested abroad – would be to examine whether it is worth contesting them. The same question is posed as to the trademark.

Here, there are two points to take into consideration: the first is cost-benefit. Are there economic losses for the Amazonian communities by virtue of the registration of the “cupuassu” trademark and the granting of the patent? If the answer is yes, – and it seems that it is, specially as far as the trademark is concerned -, then the competent entities should promote the elimination of these obstacles to exporting in the countries where the registration of the trademark and the patents are valid. But if, from the economic point of view, there is no interest in contesting the foreign registrations, even so the second dimension has to be considered, or the biosquatting, that is, the offense to the identity and the cultural values of the Amazonian communities.

Do the word “cupuassu” and the economic use of the plant constitute an element of cultural identification for the Amazonian communities? Do the registration of the trademark and the patent constitute a moral offense for these communities, or just an act of economic aggression? Perhaps it is up to the Amazonian communities to answer these questions.

Why is Wipo adopting the term “biosquatting” instead of “biopiracy”?
The term biopiracy was coined a few years ago to designate unauthorized acts of commercial use and of getting intellectual property rights – above all, patents – from genetic resources and associated traditional knowledge. The problem is that this word implies two mistaken notions. In the first place, piracy is, and always has been, an illegal act. Well, not all the acts designated by biopiracy are necessarily illegal. In the lack of any legislation that restricts access to genetic resources – and, up to a few years ago, before the advent of the Convention on Biological Diversity, genetic resources were regarded as a heritage of humanity -, the acts of gathering a specimen of a plant, taking it abroad, identifying an active component, synthesizing it and patenting it were not illegal.

Or, if this legislation does exist, these acts may be illegal in the country where the unauthorized picking took place, but not in the country where the research was carried out and the patent requested. The word “biopiracy” is therefore mistaken. The second mistake is of a more particular nature: since the advent of the Trips Accord, the word “piracy” is applied to designate some kinds of breaches of copyright – and only of copyright. Well, acts of biopiracy can also happen in the field of copyright, but they usually touch on other areas of intellectual property, such as trademarks and, above all, patents.

That is why, in one of the documents that are being prepared by Wipo’s secretariat for the next meeting of the Intergovernmental Committee, it is suggested that a more appropriate description for these acts would be biosquattingSquatting means a private claim to land that belongs to someone else or are of the public domain. It also simply designates an “invasion” or “occupation” of property, which are not necessarily illegal, as there may be gaps in the law that end up “legitimating” the private occupation of public land. The word “biosquatting,” then, continues to be of an easy popular comprehension to characterize acts of a technically and juridically complex nature, but it is more correct than “biopiracy.”

Foreign companies and laboratories have already registered the use of ayahuasca and curare, for example. Why are countries like Brazil so exposed to this kind of plunder?
The growing increase in the accusations of biosquatting is due to a set of circumstances. In the first place, there have been technological advances in screening in laboratories of active components of living beings, which makes it possible to identify far more quickly substances that are potentially useful for pharmacology. This, of course, calls for the need for getting more samples of genetic resources in the countries where they are more abundant and diverse. For that very reason, in second place, for purely geographical reasons, the tropical and equatorial regions enjoy enormous sources of genetic and biological resources, which may by chance contain components for commercial and industrial use in the areas of pharmaceuticals, chemicals, foodstuffs, etc.

In the third place, with the Convention on Biological Diversity, there was an international awakening towards the question of the property of and sovereignty over genetic resources. Up to a point, the question is posed in simple terms: if a country can decide what to do with the petroleum that lies in its subsoil, why not also decide what to do with the resources that are above the ground? The problem with genetic resources is that their importance does not lie with the resources in themselves, but in the genetic information that they contain. That it why it is not a question of being able to sell specimens of these resources, but rather of controlling the use made of the knowledge of the active components that are to be found in these resources.

That is why the Convention on Biological Diversity talks of sharing the benefits resulting from the use of these resources, and not strictly of their appropriation. And, in fourth place, the indigenous and traditional communities are slowly waking up to the need for protecting their intangible assets. This potential, though, can only be realized when there is a juridical regime that formalizes its ownership.

Are the developed countries adopting measures to protect traditional knowledge?
One of the first countries to take effective measures to protect the indigenous communities from cultural offenses caused by the commercialization of tribal names and insignia was the United States, where a database of indigenous symbols and names was created, which trademark examiners will have to consult before approving a patent request. The same is being done in New Zealand. In the area of genetic resources, Brazil is a country that is naturally sensitive to practices of biosquatting – after all, the name of the country is the name of a genetic resource, brazilwood, which was the subject of a contract for access granted by King D. Manuel I to Fernão de Noronha, in the early years of the 16th century, as is told by Eduardo Bueno, in his book Náufragos, Traficantes e Degredados [Castaways, Traffickers and Exiles].

The labor of the Indians, who already knew how to use the tree to extract the dye, was intensively used to cut and crush the trunks of the trees. This is a historical example of the misappropriation of traditional knowledge, and whose commercial intent was to compete with the dye that went from Sumatra to the textile industries of northern Europe, and which was of a better quality than the Brazilian dye, though far more expensive.

Is biosquatting aggravated by the absence of a system of legal protection?
Without a doubt, recourse to an effective juridical protective mechanism, both at the national and at the international level, would prevent many of the practices of biosquatting, or, at least, help to repress them. In a document prepared for the fourth session of the Intergovernmental Committee, Wipo identified four reasons for adopting a juridical regime to protect traditional knowledge: a) the exercise of intellectual property rights over traditional knowledge would make it possible to protect it against distorting or offensive acts, even though their owners may not have intended to market them directly; b) a clear and effective system for protecting traditional knowledge increases the security and foresee ability of juridical relationships, which would benefit not only the communities, but also society in general; this is how the enormous uncertainty and mistrust that naturally surround the relations between bioprospectors and the owners of the knowledge is eliminated;

c) a formal system for protection would make it possible for the communities to register and to capitalize on their knowledge, in such a way as to transform it into assets susceptible to being use as a basis of support for small business activities in the fields of agroindustry, handicrafts, etc.; and, finally, d) just as over the last few years an advance has been seen in the basis for protecting patents in the sectors of the pharmaceutical and biotechnological industry, in the information technology and audiovisual sectors, as a means of avoiding non-tariff barriers to international trade, likewise the exports of handicrafts and genetic resources, incorporating traditional knowledge, should be facilitated, through their protection – the lack of which protection at the international level could also mean a non-tariff barrier to their export.

And which are the possible forms of protection?
As far as the system for protecting traditional knowledge is concerned, there are two possible perspectives. On the one hand, there is the so-called “defensive” protection, that is, measures that are taken solely and exclusively with a view to prevent third parties from appropriating traditional knowledge. Accordingly, lists of names and of indigenous symbols, with a view to preventing the registration of trademarks, as they did in the United States, are one example. Another are the databases of traditional knowledge, like the one of ayurvedic medicinal knowledge, in India, set up in such a way that the patent examiners can take into account the traditional knowledge already publicly divulged, and that, accordingly, they are part of the state of the technique and constitute anteriority to patent requests.

A third example, which is being the subject of a technical study on Wipo’s part and which is at the origin of an international polemic, is the possibility of demanding that all the patent requests relating to inventions originating with or derived from genetic resources and/or associated traditional knowledge identify the origin of the resources used, as well as giving proof that there was prior consent on the part of the holders of this knowledge. The Brazilian Provisional Measure that deals with the access to genetic resources has a provision in this direction. There are doubts about the compatibility of this requirement with some international treaties. On the other side, there is “positive” protection, that is, the acquisition of proprietary rights over traditional knowledge.

There is the possibility of using pre-existing intellectual property mechanisms: copyright, for some expressions of traditional knowledge, such as folkloric arts; patents, for some traditional inventions; trademarks, for names and symbols; industrial designs, for symbols, figures, etc. Without a doubt, there are problems of a juridical nature in the use of some of these mechanisms for protecting traditional knowledge. This is also another problem: intellectual property is usually a concept that the indigenous and local communities have not learnt.

In this field, the INPI, under the command of José Graça Aranha, played a pioneering role in the world: for the first time it not only gathered together shamans in São Luís, in Maranhão, to discuss intellectual property issues, but also, in May 2002, it organized an intellectual property course for representatives of the indigenous communities and their lawyers. But there is also, in “positive” protection, the possibility of developing an intellectual property system specially adapted to the holistic and informal characteristics of traditional knowledge: a sui generis system. Brazil has the outline of a regime of this kind, in its Provisional Measure. But countries like Panama, Peru and Portugal are far more advanced in this regard.

There is also the need to adopt a multilateral treatment for traditional knowledge. The fact is that, with the globalization of the markets, protection within the frontiers of a country is not sufficient, if the product or knowledge is marketed in other countries. Pre-existing or sui generis intellectual property is territorial, and so does not cross the borders of each country, unless there are international agreements in this regard.

What is Wipo’s role and what actions have been developed to combat biosquatting?
Wipo’s work in the matter of traditional knowledge began in 1998, after the election of the current director-general, Dr. Kamil Idris, who brought a new vision to the organization: the use of intellectual property to promote the economic and social development of needy countries and communities. One of the initiatives was studying which sectors of society had not yet benefited from intellectual property, and what could be done for the situation to change. By virtue of the debates then held about the implementation of Article 8 (i) of the Convention on Biodiversity, the choice was made to work with indigenous communities.

Wipo went through a period of apprenticeship between 1998 and 2000, in which it organized two round tables, visited nine regions of the world, and, along with Unesco, promoted four regional consultations on the protection of expressions of folklore. When Wipo was getting ready to pass to the second stage, in which it was to be ascertained how the indigenous communities had used intellectual property mechanisms to protect their knowledge, there was a debate on the Patent Law Treaty, adopted in Geneva, in June 2000. The debate dealt with the requirement for information on the origin of genetic resources in patent requests, which Colombia, with the support of several countries, including Brazil, had suggested to be part of the treaty.

In the light of the impasse that was the result of this debate, it was agreed to set up in Wipo a forum for discussions on issues involving genetic resources, traditional knowledge and folklore. In September 2000, Wipo’s assemblies then created the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, made up of all Wipo’s member states, plus the European Community, several international organizations and several nongovernmental organizations. The committee does not have the competence to interfere in the practices of its member states. Its role is to allow discussions amongst its members on the three themes that it takes care of.

What are the lines of work, as far as genetic resources are concerned?
In terms of genetic resources, the committee is working on a collection of contractual clauses relating to access to genetic resources, and may perhaps come to discuss recommendations on acceptable practices in this field. As to traditional knowledge, the committee is working on the defensive side, that is, on what relates to their database. The technical criteria for setting up these databases are being discussed, and, above all, a tool kit is being prepared, containing advice and recommendations on the subject of intellectual property for the parties involved in setting up these databases.

As to the positive aspect, the committee is carrying out an investigation into the experience of countries as to the use of the traditional intellectual property mechanisms in the protection of traditional knowledge, as well as into the development of sui generis mechanisms. Besides this, Wipo has prepared a study on the possible elements of a new sui generis system for protecting traditional knowledge, as well as another on an operational definition of traditional knowledge. At the same time, technical support is being intensified for the countries that want to develop initiatives and legislation for protecting traditional knowledge and folklore. All the committee’s documents have been made available on the website at /igc/documents/index.html.