Protection of Traditional Knowledge (TK) in Latin America

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Protection of Traditional Knowledge (TK) in Latin America Status Quo, Example of Brazil and Actual Tendencies Competition and and Tax Tax Law Law AIPPI Annual Forum 2009 Buenos Aires

Outline I. Latin America TK-related facts II. Latin America Legal status quo of TK III. Brazil as an example IV. Different perspectives V. Latest developments and outlook

I. Latin America some TK-related facts M C V high biodiversity, even 6 mega diverse countries big plurality of indigenous cultures similar colonial history, languages E P E P C V B B different climatic zones, mentalities, politics, laws wikipedia

II. Legal status quo (1) International framework: CBD and TRIPS Supranational protection: Decisions of the Andean Community No. 391 (1996) - first attempt worldwide of a legal protection of TK - and No. 486 of 2000 - first attempt worldwide to combine CBD + TRIPS - National Peru National Costa Rica Brazil

II. Legal status quo (2) 3. National legislations: a) Sui generis regimes - different approaches Peru: Law No. 27811: indig. TK related to biol. resources Brazil: (Provisional) Act No. 2186-16 Costa Rica: Law No. 7788 and first contract worldwide: institution of country with high biodiversity (INBio) pharmaceutical company (Merck & Co. Inc.) Use of extracts of plants and insects from Costa Rican protectorates b) Incorporation in other laws e.g. Mexico: Art. 102 of General Law on the sustainable forestal development

III. An example: Brazil (Provisional) Act No. 2186-16 of 2001 1. Legislative History Legal basis for contract Novartis Pharma AG Brazilian NGO Bioamazônia - passed solely by the executive, now incorporated - 2. Content Subject: Only TK related to genetic heritage and technology Protection: PIC to scientific research, in case of bioprospecting and technolog. development: special Contract for Use of gen. heritage + benefit-sharing 3. Implementation Disclosure of origin of genetic material and TK in IP-rights only in 2007 (although claim at WTO in 2006) 4. Critics Complicate procedure of authorisation No reciprocity (e.g. no hand-out of scientific research)

IV. Different perspectives (1) Background TK, biodiversity cultural diversity no generalization possible Expectations and needs culturally stamped Culture is a dynamic factor, changes If cultural diversity and biodiversity are international values and protection is desired mutual understanding at least of some expectations and needs is a precondition sine-qua-non

IV. Different perspectives (2) Understanding the indigenous perspective Example: Mundurucú/Mundurukú indigenous tribe (~10.000) living in the state of Pará in Brazil along the Tapajós river, quite isolated, language: Tupí Source: Agência Brasil / Mundurucú

IV. Different perspectives (3) Underlying philosophy Cosmovision space time material Knowledge is in the object itself Cannot belong to a person / an individual One time Intergenerational perspective and responsibility Different socio-cultural setting Different concepts of decision-making, of representation

IV. Different perspectives (4) Consequences for protection of TK: Intermediators not representatives Intercultural dialogue (considering diff. modes of thoughts, concepts of words) Content: Exchange (reciprocity) Balance between use and protection of natural resources (sustainability)

V. Actual tendencies and outlook National level e.g. Panama, Bolivia, Ecuador: legislative projects Peru, Paraguay: workshop/seminar Regional level International level a) WIPO: XIV. Session of IGC in July: no future work agreed upon General Assembly on October 1: renewal of mandate b) WTO: Discussions on amendment of TRIPS In general: A work in progress

Thank you. AIPPI Annual Forum 2009 Buenos Aires

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