Can Regulation prevent Biopiracy and support Biotechnology Development?
Legado das Águas Natural Atlantic Forest Reserve in the State of São Paulo, Brazil
A recent article by the Biodiversity access lawyer Francine Franco made me realize that Brazil carries the marks of the expropriation of its natural resources even in its name.
“Brazil drew attention for its natural wealth since its discovery. No wonder we are the only country to bear the name of the assets of greatest interest to our colonists, [the brazilian rosewood] Pau Brazil! […] Its true origin is the Celtic term brésil, which means “red” […] the color of the pigment extracted from the bark (stick) of this tree. In other words, it was an active principle (a pigment) of interest to the European consumers who gave us our beautiful name.”
Another example came from the video Could blockchain save the Amazon rainforest? by The Economist. They say:
“In the 19th century Brazil had a thriving rubber industry, thanks to the Amazon native rubber trees. But a British [Sir Henry Wickham] explorer took rubber tree seeds from Brazil and used it to establish plantations in Southeast Asia, virtually wiping out brazil’s rubber industry. These so called biopirates have plunded the Amazon ever since, making their fortune from the forest’s biological riches while the countries of origin gain little or no benefit”.
These ‘pirates’ stole more than the biological riches. They stole the knowledge of the indigenous people. Or do you think they tested every tree in the forest until they found one the bled red ink and the other that bled rubber?
In her article, Francine wrote: “But in midst of a dense forest, with so many trees and animals, how did the Portuguese discovered this wealth? The answer is simple: through the traditional knowledge of indigenous people associated with this species. It was the Indians who drew this pigment for body painting and other uses.”
“Traditional Associated Knowledge is a kind of intellectual property” I’ve heard Rafael Marques, director of the Brazilian Genetic Heritage Council CGEN, stating in many events. And it is being stolen from us since for ever. Actually from many countries.
“We are not talking only of Brazil. In all regions of the world we will have such stories to tell. That is why during the ECO-92 held in Rio de Janeiro […] the United Nations related to the use and conservation of biological diversity. Its three main objectives are: (i) the conservation of biological diversity, (ii) sustainable use of biodiversity and (iii) the fair and equitable sharing of benefits arising from the use of genetic resources.” wrote Francine. Since then, out of 196 parties, 168 countries signed the Convention.
Brazil was one of the first countries to create its regulation in the year 2000. It took 16 reviews until it won the status of law in 2001. The law had a strong focus in preventing biopiracy and instead of stimulating biodiversity business and research, the law stiffed the production sector and academia.
Many other countries also have their legislations: “Today this treaty already has over 100 country Parties, and among them are great biodiversity providers such as African countries, India and some Latin countries, as well as major user countries, such as the European Union” says Francine.
In 2014, the Nagoya Protocol entered into force with the specific purpose of regulating Access and Benefit Sharing – ABS. An adjustment of the legislation was necessary and Brazil published a new law in 2016. This new law is much more flexible and addressed many of the issues raised over the years by the private sector and the scientific community, as well as the traditional populations.
Even though many people wish there was no legislation at all, the law is fruit of these international treaties, which are the fruit of international debates that were lead by the biodiversity owning countries, and has strong support among different sectors of the Brazilian society.
In 2017, the private sector in Brazil (CNI, GSS, Natura), published the ‘Brogotá Project’ (portuguese only), a pioneer study of the legislation of 120 countries, the specific ABS laws of 48 countries and the international platform ABSCH: a database of 205 legislative, administrative or political measures from 50 countries. Francine published some highlights of the document
“Peru has a prior and complex administrative procedure to obtain access authorization. In spite of not establishing specify benefit sharing values for accessing genetic resources, to access collective knowledge the minimum value is 10% of the gross revenue of the resulting product. In India, the national ABS guide states that benefit sharing may vary from 0.1% to 5% depending on specific situations. To date, the country has issued 86 IRCCS, which shows that the authorization procedures have been broadly met. South Africa has also a complex legislation, including well defined concepts and penalties for irregular access. The country has 24 IRCCS disclosed, all for commercial purpose. Argentina has several rules, federal and provincial. There are 17 legally established types of benefits sharing, monetary and nonmonetary. Colombia, although without any IRCCS registered in ABSCH during the study, was found to have a lists of projects approved by the country’s government and that already have access contract, including contracts for research on cosmetics purposes. In Costa Rica, ABS authorization applicants shall pay to the National System of Conservation Areas, the indigenous territory or the private owner of the sample provider of the genetic resource to be accessed up to 10% of the scientific research value and up to 50% of royalties. If the applicant of the access authorization is the owner himself, the 50% of royalties shall be made in favor of CONAGEBIO.”
In many aspects, the Brazilian law is simpler than all these others. After reading this, the Brazilian legislation doesn’t seem that though anymore. As Francine says: “reduction of benefit sharing to 0.1% in case of an industry sector agreement with the government; exemption for SME; benefit shared only by the manufacturer of the finished product, only when the genetic resource is a key element of value added or marketing appeal; exempt in patents licensing or sales. Last but not least, reduction of benefit sharing to 0.75% of net revenue in case it goes directly to communities or biodiversity conservation and enhancement of traditional knowledge projects – which can be reversed in image gains for the company and spontaneous marketing.”
Moreover, no other country has an online and self-declaratory system such as that introduced by the new Law of Biodiversity in Brazil and nowhere else the law is applied by a single council (CGEN), which reduces bureaucracy.”
Nevertheless, the number of benefit sharing projects in Brazil are, to say the least, modest. According to the SISGEN online sistem, only 16 products sharing benefits are on record.
I have already written here in Steemit about the risk that the Brazilian law on benefit sharing, that any law on benefit sharing, has come too late. But maybe it came too late to prevent the appropriation of the traditional associated knowledge of our indigenous and traditional populations. The law may prevent that the automated massive bioprospection tools that the scientific community has at its disposal today will access the biodiversity and create new and revolutionary products without sharing benefits to the country.
Brazil has to be smart, reduce bureaucracy on the biodiversity access processes to near zero and use bigdata tools to monitor and track biodiversity assets. Blockchain technology and projects like Genecoin may have an important role on this.
But none of this will be possible without a strong scientific community, because product development theses days are very different from what it was 200 or 500 years ago.