Ownership of Genetic rights : from whom? For whom?
Introduction
The federal government prepared a constitutional amendment which would
place genetic rights under the ownership of the federal government.
Read the following analysis by attorney at law André Lima (ISA
Law Program - Programa Direito Socioambiental/ ISA) on this topic,
which is closely related to the discussion on traditional
knowledge and biodiversity:
To whom does the genetic rights belong in Brazil? Who are, if anyone
is, the owners or title holders of the existing information on the genetic
structure of the biological resources (flora, fauna, microorganisms)
spread all over the country, on private property, on indigenous peoples’
lands, in areas where traditional inhabitants live, or even on publicly
owned lands? And furthermore, what is the consequences if the answer
is "a", "b,"or "c"? The federal government announced that it plans to
answer these questions soon (without summoning up civil society for
a broader debate on this question), by means of a constitutional amendment,
which classifies the genetic heritage or patrimony or ownership of genetic
rights as belonging to and an asset of the federal government.
The expression "Genetic heritage or patrimony"
To seek more consistent answers to these questions one must first understand
the breadth and context of the world "patrimony" or "heritage" in the
context of the expression "genetic heritage or patrimony", terms indicated
in the federal constitution. One must necessarily point out, even if
briefly, the principles that guide or orient the Convention of Biological
Diversity (CDB) and which help explain the context of the interests
and rights related to genetic resources.
A The Convention, -CDB, a document signed by the Brazilian government
during the Conference of the United Nations for The Environment and
Development-Eco 92-in Rio de Janeiro, and ratified in 1994, through
Legislative Decree 02, stipulates norms and principles that should govern
the use and protection of biological diversity in each of the countries
that signed the convention. In general terms, the Convention proposes
regulations to ensure the conservation of the biodiversity and the sustainable
use and equitable distribution of the benefits from the economic use
of genetic resources, respecting the sovereignty of each nation and
its rights to the patrimony existing in its territory. Furthermore,
it is important to stress, that the convention guarantees special rights
to indigenous peoples and traditional peoples over their genetic resources,
in that it recognizes the strict relationship between the conservation
of these resources and the knowledge , the way of life, the customs
and traditions of these peoples, who for centuries, or thousands of
years, have established a profound interaction with the natural environment
and have conserved it by developing activities that have little or no
negative impact on the environment.
Thus, the Convention indicates that, aside from economic interests,
there are other correlated interests of a collective and diffuse nature
related to biological diversity and, therefore, to the genetic resources
as well.
Brazilian legislation prior to this convention is similar in this regard,
as in the federal Constitution of 1988 which was consolidated when the
Consumer Defense Code (CDC), Law 8.078/90 came into effect.
Article 225 of the Federal Constitution of Brazil affirms that the
right to an environment that is well balanced ecologically constitutes
a "common asset of the people essential for the healthy quality of life
inherent in every collectivity and should be protected and preserved
for present and future generations. The CDE Convention , in turn, defines
the concepts of rights and diffused and collective interests, which
are being highlighted here.
Founded on the basic premise that prevails over a juridical asset-public
or private asset--there are various types of interests of different
natures. Based on the stipulations of Law 8.078/90,we may make some
affirmations regarding genetic resources, from the point of view of
eminently diffuse interests, collective interests and exclusively
individual interests.
Eminently diffuse interests
These interests refer to those interests related an unspecified community
of people over their genetic resources and the socio-environmental interests
are determinant factors, which stress the need for their conservation
for their relevance in maintaining the quality of life of humans and
other forms of life. One should mention here the broad legal concept
of the environment stressed in Article 32 of the Law of the National
Policy of the Environment Law 6.938/81:
"Series of conditions, influences and interactions of a physical, chemical
and biological nature, which permit, harbor and govern life in all its
forms." Article 225 of the Federal Constitution (FC) also stipulates
the rights of "all” to a well balanced ecological environment, essential
for a healthy quality of life.
Collective interests
Related to a determinable group of people or community, one may say
that, aside from the interests of a social and environmental nature,
discussed previously, there are other interests of an economic and also
cultural nature. That is to say, when one is able to identify, qualify
and quantify the interested parties, one can speak of the appropriation
of an asset for a specific collective group, for example local or indigenous
communities that control or own a territory and, therefore, the natural
resources of this territory or area.
It should be mentioned here that, in the case of indigenous people,
the permanent ownership or control of a territory ensures them the right
to exclusive usufruct rights to the natural resources located in the
area, including genetic resources (Article 231 - FC). These rights are
ensured when one identifies a specific people or social group that uses
a specific species of native flora (medicinal plants) as a form of exteriorization
and intrinsic reproduction of its culture. Article 216 of the Constitution
also calls for the juridical protection of the material and immaterial
assets which are references to the identify, activities and memory of
different groups which form Brazilian society (indigenous communities,
inhabitants of escaped slave communities-quilombos, inhabitants of coastal
areas, caiçaras, , inhabitants of mixed communities in the interior,
caboclos, caipiras), their forms of expression, their modes of creating,
doing, acting and living and their scientific, artistic and technological
creations, qualifying these assets as a cultural heritage of Brazil.
Exclusively individual interests
Prevailing from this point of view is the concept of assets
or patrimony, in the case of genetic resources, when considered only
from the economic point of view, that is, the appropriation of the resource,
in the sense of using it, enjoying it or having it at one's disposal,
excluding all the others, evidently within the limits of the use of
property rights established by existing legislation.
It should be mentioned, therefore, that the" diffuse, collective or
individual interests may converge or exist together simultaneously over
the "same thing", as in the case of genetic resources, whether or not
one holds title to or owns these resources.
The genetic resource is the element that constitutes the essence of
its structure even for natural resources (water, air, soil, flora and
fauna), which in turn compose the well-balanced ecological environment.
The conservation and the use of genetic resources, which are part of
natural resources, interfere potentially (positively or negatively)
in the ecological balance--protected constitutionally--, which seeks
to maintain the quality of life for present and future generations.
This being the case, we can say that the expression "genetic heritage
or patrimony", in this question, reveals interests and rights that transcend
individual private rights and even public rights, pointing to a new
law that we may classify as inter-generational rights, and therefore
diffuse rights, due to the undeterminability of its title holders, or
subjects, who are also future generations.
In this sense the word "heritage or patrimony" in the present case,
expresses a series of obligations of present generations which correspond
to the fundamental rights related to a healthy environment and to a
quality of life, whose owners, aside from people living today, are future
generations. The expression "genetic heritage or patrimony" imposes
something more than the usufruct rights and the right to dispose of
genetic resources, revealing mainly the right of all those who are part
of present generations (the governments and the people as a whole) to
use in a sustainable fashion and conserve this "resource” that nature
offers them, whether or not they own or have control of the property,
without depriving future generations of the conditions to use, possess
usufruct rights and utilize this same resource.
And furthermore there is the word "heritage or patrimony” used by the
legislators, not only for genetic resources but for the ecosystems of
relevant interest to the country (Mata Atlântica, Floresta Amazônica,Pantanal
Mato-grossense, Serra do Mar and Coastal Zone - §4o, Article 225, FC),
or furthermore, cultural heritage or patrimony (Article 216 - FC) as
this expression is the expression of the asset of common use of the
people, which in article 225, qualifies the well balanced, ecological
environment. The text above can lead us to a bolder analysis.
This is no longer a means of expressing a defined juridical category
for state or private property of a material resource. It refers to material
and immaterial values where these values reside basically in the possible
need of their collective use, whose access by the people should be the
broadest possible, since it deals with essential resources to guarantee
a dignified life for humanity including future generations. In this
sense the genetic heritage or patrimony is classified in the category
of assets of diffuse or public interests. These juridical categories
are still being structured not only by their concepts but also by prevailing
legislation itself. The federal government, however, consistently decides
to ignore these laws and regulations.
Respecting diffuse rights, collective and individual
rights
One recognizes that there is an ever-increasing need to reach a responsible
political and juridical solution, which ensures to all the parties,
which have the aforementioned interests, and not merely the federal
government, that their rights will be respected. However, considering
the complexity of the matter and the different and legitimate interests
and rights involved, both public and private, both collective and diffuse,
one must conclude that we should expand the discussions and hearings
with the interested parties (the scientific community, the private sector,
indigenous populations, local communities, rural landowners, small producers).
On expanding these discussions we should seek above all to receive and
absorb suggestions, even through innovative juridical fictions, and
to reflect on the impact of this hasty inclusion of genetic patrimony
and heritage into the assets and property of the federal government,
or any other existing category, or any other category which may be created.
We cannot allow provisional administrators of the government to exercise
or legitimize sovereignty over biological diversity in the country or
we will incur the danger, through dissimulation, of reinstating the
tyrannical and authoritarian practice of the past, which deliberately
failed to understand the importance of the indigenous populations and
local populations as part of the process of promoting sustainable development
of the nation. The CDB, even if timidly, recognizes this situation,
and it is the duty of the government to show that it really plans to
apply this principle in the country as a whole. ( André Lima - October/
2000).
