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 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.

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 BS-contract with the erveiras

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.

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

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 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