HERB PROVIDERS, PERFUMES AND RIGHTS

1
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 Forschungsgemeinschaf
  t 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)

2

• Intention
• Discuss the difficulties in conceiving and
  applying the concept of disseminated and
  associated - traditional knowledge (TK) in the
  legal and regulatory practice.

3
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.

4
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/
5
Source http//portalamazonia.globo.com/
6
(No Transcript)
7
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.

8
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)

9
(No Transcript)
10
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.

11

• June 22, 2004 Signing of PAC and BS-contract
  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.

12
Source www.natura.net
13
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

14
Source Jornal o Liberal
15
source www.pps.org
16

• Nov. 11, 2005 CGEN Executive Secretariat
  requests that Natura regularize the access to ATK
• June 30, 2006 Settlement reached at meeting at
  Federal Prosecutors Office, setting a deadline
  for Natura to sign a BS-contract with the
  erveiras

17

• October 17, 2006 Signature of the declaration
  of acquiescence and the BS-contract by Natura and
  by Ver-as-Ervas True Herbs association
• September 4, 2007, the Executive Secretariat
  announced its decision to suspend all
  applications involving regularization.

18

• 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 value-bounded in their systemic
  and institutional context
• The arguments are nevertheless relevant to confer
  coherence and legitimacy

19
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?

20

• 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).

21
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?
22
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 Brazils 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.

23
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

24

• This is not, however, the interpretation of the
  CGENs Executive Secretariat. For them,
  usefullness of the information provided is
  irrelevant
• Burden of proof
• Proof of uselessness

25
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)

26
Evidence

• Naturas 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.

27
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
• Naturas position against the CGENs
• 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.

28

• 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).

29

• 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)

30
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

31
Self-identification and identification by others

• The Ver-o-Peso erveiras are icons broadly
  recognized in the Brazilian society as part of
  the Amazon regions traditional and popular
  culture
• It does not rule out the risk of watering down
  the concept

32
Long-time sound ecological interaction

• Vendors of traditional products like the erveiras
  live in urban settings and dont occupy and use
  territories (...)
• Otherwise they use natural resources as a
  condition for their cultural (...) and economic
  reproduction
• Weak connection

33
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.

34

• 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

35
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).

36
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?

37
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.

38

• 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.

39

• 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
  companys economic use of the erveiras images
  and symbols.

40
Outcomes - Need of positive examples

• Naturas corporate ethics in favor of
  socio-environmental 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