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HERB PROVIDERS, PERFUMES AND RIGHTS

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HERB PROVIDERS, PERFUMES AND RIGHTS. TRADITIONAL KNOWLEDGE ON BIODIVERSITY IN ... source: Jornal O Liberal, 'Aroma do Par gera pol mica', Carlos Mendes, April 23, ... – PowerPoint PPT presentation

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Title: 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
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