Biodiversity Fetishism and Biotechnology Promises in Brazil: From Policy Contradictions to Legal Adjustments

Abstract

This article retraces the development of the Brazilian legal framework with regard to Access and Benefit Sharing and the protection by patent of biotechnological innovations. It demonstrates that 20 years on from the adoption of the Convention on Biological Diversity, Brazil no longer has the same attitude or the same expectations with regard to its genetic resources. The control of the State over access procedures and restrictive regimes in terms of patents are increasingly out of step with the concerns of national researchers and companies alike, and are the target of both criticisms and reforms. The scientific community is seeking to acquire prerogatives for managing genetic heritage, while the State is seeking to strengthen the national biotechnology sector. How is the legal environment adjusting to new and sometimes contradictory issues? What is the new interplay between public and private rights when it comes to genetic resources and natural-based products? To what extent are "commons" systems emerging -both in terms of accessing biodiversity and in terms of protecting innovations?

Posibles conflictos éticos entre los paradigmas científico-tecnológicos dominantes y la mejora del bienestar de la población en algunas economías emergentes

“…La riqueza potencial que puede proporcionar la naturaleza se puede convertir en objetos muy valiosos en la sociedad de consumo, por ejemplo: medicamentos, cosmética, tratamiento de cultivos, proteínas vegetales, etc. Aunque, hasta ahora, aquellos productos no han respondido a las expectativas de creación de riqueza que se habían alimentado (Ten y Laird, 2002 citados en Filoche, 2012). Durante milenios, la gente de todo el mundo ha curado a los enfermos con remedios a base de hierbas u otros productos derivados de la naturaleza, y se ha transmitido de generación en generación (Shetty, 2013).…”

Teaming Up? China, India and Brazil and the Issue of Benefit-Sharing from Genetic Resource Use

“…The Council for Managing Genetic Patrimony (CGEN)a body involving 19 ministries and federal institutionstook control over access to GRs in 2002, marking the point in time when various groups, key amongst them Brazilian scientists, started criticising the state's 'heavyhanded' approach towards GRs as contributing to Brazil's loss of competitiveness (Biominas 2011;Filoche 2012). Initially, the object of criticism was the near impossibility of accessing GRs but this argument lost its strength as the state progressively and silently loosened its grip and Brazilian researchers secured preferential access to them.…”

“…Initially, the object of criticism was the near impossibility of accessing GRs but this argument lost its strength as the state progressively and silently loosened its grip and Brazilian researchers secured preferential access to them. Soon after CGEN became operative, the Brazilian Institute for the Environment and Renewable Natural Resources became responsible for considering applications to access GRs for non-commercial purposes and it not only issued a large number of authorisations, but also 'special dispensations' for Brazilian public research institutes (Filoche 2012). Other state agencies got increasingly involved in issuing GRs authorisations, totaling around 1,300 in 2013, of which nearly half was for research purposes (Gross 2014: 23).…”

“…Widespread concerns that the national biotech sector was not strong enough to compete with foreign companies who would, in turn, appropriate Brazil's GRs through patenting were also key in the opposition movement carrying the day (Filoche 2012). Similar concerns also guided state's position on GM seeds during the late 1990s: transgenic research was permitted as a means of supporting Brazilian scientific competitiveness, but GM planting was not, with a view to allowing time for Brazilian agro-biotech firms to develop their own seed varieties and competitive strengths (Jepson 2002).…”

Who Owns Guaraná? Legal Strategies, Development Policies and Agricultural Practices in Brazilian Amazonia

“…However, guaraná was considered to be a freely available raw material for agribusiness long before the CBD was drawn up. Similarly, Brazil has managed to contain the influence of IPRs (Filoche ). Since the Rio Summit in 1992, the trend has been a gradual extension of the field of the patentability of life‐forms, as evidenced by the 1994 TRIPS agreement (Trade‐Related Aspects of Intellectual Property Rights), which has been adopted by the WTO.…”