Transcript HERB PROVIDERS, PERFUMES AND RIGHTS – TRADITIONAL

HERB PROVIDERS, PERFUMES AND
RIGHTS –
TRADITIONAL KNOWLEDGE ON
BIODIVERSITY IN THE CASE OF NATURA
AND PROTIUM PALLIDUM
John Bernhard Kleba, Assistant Professor of Political Science, Sociology and Philosophy at the
Aeronautics Technological Institute, São Paulo
Funded by the DFG – Deutsche Forschungsgemeinschaft; project coordinated by Prof. Gerd Winter
at the Research Center for European Environmental Law, University of Bremen, Germany,
and by the FAPESP (São Paulo State Research Promotion Foundation)

Intention
 Discuss
the difficulties in conceiving and
applying the concept of – disseminated and
associated - traditional knowledge (TK) in
the legal and regulatory practice.
The MP 2816/2001

MP (Provisional Measure) since 2000

CGEN - Genetic Patrimony Management Council (April
2002)

To access TK requires a Previous Acquiescence
Agreement (PAA) and Contract for Genetic Patrimony
Use and Benefit Sharing, to be authorized by CGEN.

The last draft bill of law (DL) was published by the
federal government for public comments late in
November 2007.
Protium Pallidum,
Burseraceae


Breu Branco – White
Pitch (breu means
resin or tar) is used
for sealing and
calking boats, as a
mosquito repellant
and as incense.
Origin: Amazonia
Source: http://www1.folha.uol.com.br/
http://pick1.pick.uga.edu/
Source: http://portalamazonia.globo.com/
Natura




Natura Inovação e Tecnologia de Produtos Ltda
is a Brazilian cosmetics company.
Its gross revenue in 2006 was R$ 3.9 billion.
It is known for its corporate social and
environmental responsibility.
At the CGEN it has been negotiating nine
benefit-sharing contracts.
The empirical case

When Natura accessed Protium Pallidum
for the development of fine perfumes, has
it also accessed the related Traditional
Knowledge?

(concerns two potential providers)
Reserve of Irataputu, Amapá



2001 – Natura begin the collection of samples
for bioprospecting research, done by a riverside
and extractivist community, represented by
COMARU, Rio Iratapuru Producers and
Extractivists Cooperative.
The samples were collected in the Sustainable
Development Reserve of Iratapuru, whose
public administration lies with the Amapá State
Environmental Secretariat.
July 2003 – Natura launches two products using
Breu Branco: Perfume do Brasil and Água de
Banho.




June 22, 2004 – Signing of PAC and BScontract between Natura and COMARU. On
Dec. 12, 2004, an add-on was signed with the
SEMA, Amapá.
July 19, 2004 – Application filed by Natura to
regularize its activities.
March 18, 2005 – CGEN issues Natura an
Authorization of access to samples of a
component of the genetic patrimony (..) based
on Protium pallidum.
Assumption: There was no ATK involved, but
DTK.
Source: www.natura.net
Ver-as-Ervas, Pará
In July 2003, Natura employees
interviewed herb vendors (erveiras) at the
traditional Ver-o-Peso market in the city of
Belém, Pará, to produce a documentary
 The erveiras complain to OAB – Brazilian
Bar Association. April 2005

Source: Jornal o Liberal
source: www.pps.org
Nov. 11, 2005 – CGEN Executive
Secretariat requests that Natura regularize
the access to ATK
 June 30, 2006 – Settlement reached at
meeting at Federal Prosecutor’s Office,
setting a deadline for Natura to sign a BScontract with the erveiras

17, 2006 – Signature of the
declaration of acquiescence and the
BS-contract by Natura and by Ver-asErvas True Herbs association;
 September 4, 2007, the Executive
Secretariat announced its decision to
suspend all applications involving
regularization.
 October
 The
Negotiation Process
an agreement without consent
 The debate was not guided by the best
arguments, or the best compliance with
law, since each social actor was valuebounded in their systemic and institutional
context
 The arguments are nevertheless relevant
to confer coherence and legitimacy

Access to
associated or disseminated
traditional knowledge ?
Disseminated TK is not mentioned in the
MP. It becomes a legal concept in the
Draft of law
 Should DTK also require PIC and BS?

Provisional Measure

Concepts related to “associated
traditional knowledge”:
 “acquisition
of information on individual or
collective knowledge or practice associated to
genetic heritage, from an indigenous
community or local community, (..)”(MP,
Art. 7, V)
 “… with real or potential value” (Art. 7, II).
Draft Bill
Concept of “disseminated traditional
knowledge”:
“knowledge disseminated in Brazilian society,
freely usable by all, not recognized as being
directly associated with the culture of
indigenous, quilombola or traditional
communities.” (Art. 7, XIX).
Which category is to prevail?
The origins of the information

Hypothesis from Natura. DTK is public domain:
 attested
by the number of literature citations, the
common use of the resin in an extensive region and
because it has become part of daily life
 The publications predate Brazil’s legislation

Defence: Even if specific holders of this TK can
be identified, this knowledge has lost its status of
being “directly associated” through the
widespread use.
Relevance (potential value)


Assumption: The information provided by the
erveiras was sine qua non for the products
developed
R & D: novelty of the raw material, its function
and the technical procedures
 material
and function was described in the literature
 the processing techniques differ, with the traditional
preparation using alcohol and the industrial process
based on steam-drag technology

This is not, however, the interpretation of
the CGEN’s Executive Secretariat. For
them, usefullness of the information
provided is irrelevant;
 Burden
of proof;
 Proof of uselessness;
What amounts to define an access
to ATK for the CGEN?

It was the use of the shortcut, i.e., the act of
direct consultation with a group invested with
traditional knowledge
(Links: genetic resources; purposes)
Evidence

Natura’s documentary;
 E.g.
quote: “To develop this perfume, we recovered
an ancient secret for the sensuality of women in
native populations, their bath water.”

The quality of evidence is questionable.

But it is a written record.
But are the erveiras legal and
legitimate holders?


Is it right to expand the concept of rights-holders
to include street markets? MP 2816 keep silent;
Natura’s position against the CGEN’s:
 The
erveiras are not a local community, as the law
defines it. They are urban dwellers and their
economic activity is commerce.
 Therefore the assumption lacks clearly legal standing.

The MP 2816/2001 defines “local
community” as a:
“human group, including descendants of
Quilombo communities, differentiated by
its cultural conditions, which is traditionally
organized along successive generations
and with its own customs, and preserves
its social and economic institutions;”
(art. 7, III).
Decree and Draft Law - Traditional Communities

“Traditional Peoples and Communities are
culturally differentiated groups, who identify
themselves as such, possess their own forms of
social organization, occupy and use territories
and natural resources as a condition for their
cultural, social, religious, ancestral and
economic reproduction, using knowledge,
innovations and practices that are generated
and transmitted through tradition”. (Decree
6040/2007, Art. 3, I)
The criteria of cultural, social and
economic differentiation





Different from what?
“Ideal types”, e.g. indigenous ethnic groups that
have kept their language and their own
institutions alive
It is presumed a homogeneous, modern,
western culture antithesis
The majority of the Brazilian population lives
outside the modern social system
Fragile criterion
Self-identification and identification
by others
The Ver-o-Peso erveiras are icons broadly
recognized in the Brazilian society as part
of the Amazon region’s traditional and
popular culture
 It does not rule out the risk of watering
down the concept

Long-time sound ecological interaction
Vendors of traditional products like the
erveiras live in urban settings and don’t
“occupy and use territories (...)”
 Otherwise they use “natural resources as
a condition for their cultural (...) and
economic reproduction”
 Weak connection

Inter-generational preservation of
traditions

As explained by Beth Cheirosinha, one of the
erveira leaders who was also an informant for
Natura:
“Her grandmother, who died at the age of 115, learned
everything from the Indians. Her mother, known as
Cheirosa, died last year at 90.”
source: Jornal O Liberal, “Aroma do Pará gera polêmica”, Carlos Mendes, April 23,
2006.

Concluding, there are short-comings like
 a)
the ecological integration and
 b) the degree of socio-cultural distinctness

There are also convincing criteria, such as
 c)
the inter-generational use of genetic
resources, as well as
 d) the identification by others as a symbol of
traditions
The draft Bill


The draft Bill advocates expanding the concept
of ATK, to incorporate the modality of
knowledge, innovation and practice expressed
outside their original contexts:
“… even when made available outside these
contexts, such as in data banks, cultural
inventories, publications and in commerce” (art.
7, XVIII).
TK and marketing concepts
Natura acknowledges inspiration from
DTK.
 They use traditional bath rituals, names
and images to develop marketing
concepts, trademarks and advertising.
 But are these aesthetical dimensions of
TK still a case of legal protection
according to the MP?

Final
In the case of Protium pallidum, the official
agency decided that there was access to
ATK.
 Other hermeneutics and outcomes would
have been possible.


IN FAVOUR OF NATURA:

There are sufficient proofs of written records on the
uses and the perfumery function of Breu Branco.
The development of the Breu Branco Ekos line of
products did not utilize any of the vendors’ knowledge,
since it was put on the market at the same time as the
interviews held.
The erveiras’ knowledge should have been qualified
as “disseminated in Brazilian society”, since Breu is
used intensively throughout the Amazon region.
Commerce is inappropriate to characterize a rights
holder, for lack of a direct link to territory and to the
environment and of a clear social and cultural
distinctiveness.




IN FAVOUR OF THE ERVEIRAS:

There was access because the shortcut was taken.
It is impracticable to prove the informational
worthlessness of the interviews.
The burden of proof is born by the user.
The erveiras hold ATK because they preserve
intergenerational knowledge and practices linked to uses
of genetic resources.
The Ver-o-Peso market is a symbol of the preservation
of Amazonian tradition.
Their practices in perfumery are thus directly associated
with these knowledge holders.
Complementary justifications include the company’s
economic use of the erveiras’ images and symbols.






Outcomes - Need of positive
examples
Natura’s corporate ethics in favor of socioenvironmental initiatives
 The creation of associations and
cooperatives based on benefit sharing can
provoke regional positive impacts
 Challenge for law and policy cicle:
harmonising interests keeping these
emerging rights in focus
