Cultural Heritage and Collective Intellectual Property Rights A ttempts to adapt the conventional great progress in the protection of patent system ­ internationally cultural heritage by announcing a promoted by the World Intellectual modern inclusive and democratic legal Property Organization (WIPO), and, concept. The text clearly extends the nationally, by the National Institute of notion of cultural heritage, appreciates Industrial Property (INPI) ­ do not cultural pluralism and demonstrates a Notes appropriately consider the characteristics spirit of democratization of cultural and cultural contexts of traditional knowl- policies. The state recognizes its edge. obligation to protect the cultures of Traditional knowledge is commonly the various social and ethnic groups generated and accumulated in a collective which form the Brazilian society. The manner, based on the broad exchange and new cultural heritage concept grants circulation of ideas and information, and constitutional protection to documents KI transmitted orally from one generation to and sites, including carriers of histori- the other. The conventional patent system cal reminiscences such as the old protects individual innovations with quilombo communities2. This new potential for industrial use that are concept is the result of a historical documented, while many types of tradi- process of institutionalisation of tional knowledge are not documented and may not have direct industrial application. 1 The Third World Network proposed a `Community http://www.worldbank.org/afr/ik/default.htm Patents also have a limited validity; it is Intellectual Rights Act', according to which local impossible to limit the validity of any communities would be the `custodians' (or `stewards') of intellectual right on traditional knowledge, their innovations, securing the free exchange among and rarely possible to determine the exact communities, and prohibiting the concession of any rights time of its origin.Additionally, one must of exclusive use of such innovations. recognize that its transmission occurs in 2 Quilombo de Palmares was a real-life democratic society, an undetermined way from generation to created in Brazil in the 17th century as a community of generation. The inventive and creative processes of freed slaves, becoming a safe harbor for other outcasts of communities are often collective and the the world, including Indians and Jews. No. 95 use of information, ideas and resources August 2006 generated on the basis of such collective IK Notes reports periodically on processes are broadly shared. Therefore, Indigenous Knowledge (IK) initiatives the concept of property rights belonging in Sub-Saharan Africa and to one or more identifiable individuals is occassionally on such initiatives alien and contrary to the values and outside the region. It is published by concepts of such societies and its adop- the Africa region's Results and Learning Unit as part of an evolving K tion could foster a dissociation of knowl- partnership between the World Bank, edge from the context in which it is communities, NGOs, development produced and shared. A legal regime for institutions, and multilateral `collective intellectual property rights' organizations. The views expressed in would avoid these difficulties. 1 this article are those of the authors World Bank and should not be attributed to the World Bank Group or its partners in this initiative. A webpage on IK is Legal concept of cultural heritage available at: //www.worldbank.org/afr/ ik The Brazilian Federal Constitution made 2 cultural preservation policies, which seek to value the `live' based on the concept of legal pluralism and the recognition culture embodied in popular expressions and the daily life of the legal diversity existing in traditional societies. of societies and their material and immaterial cultural In order to understand the essential elements of such a goods. regime, it is necessary to accept a plurality of legal sys- Article 215 of the Constitution establishes that, goods of tems, recognising that our society is pluralistic and has material and immaterial nature, including forms of expres- parallel legal systems manifest in the customary laws of sion, styles of creation, acting and living, and scientific, local communities. artistic and technological creations of the various Brazilian social groups, jointly constitute the Brazilian cultural Collective ownership heritage. It foresees the protection of constructions, works of art and other goods of material nature, and the creation One of the fundamental pillars of a legal regime should be of new legal instruments for the preservation of immaterial the recognition of the collective ownership of traditional goods. knowledge. For example, in Brazil, the Temporary Measure Immaterial goods include various forms of knowledge, no. 2.186-16/2001 in its article 9th establishes that: `... any acts and creations, such as music, stories, legends, dances, traditional knowledge associated to genetic heritage can be culinary recipes, techniques of crafting and managing the of the ownership of the community, even if one individual environment. They also include the knowledge, innovations member of that community holds that knowledge.' and cultural practices of indigenous peoples, quilombos and The collective nature of the inventive and creative traditional populations3, such as forms and techniques of processes of local communities can even transcend the handling natural resources, hunting and fishing methods and limits of one community. Certain medicinal plants are used knowledge on ecological systems and species with pharma- by numerous communities even in different countries. ceutical, nutritional and agricultural properties and tradi- Hence, attributing intellectual property rights to only one tional knowledge related to bio-diversity. group, or even to a number of communities, would still The legal regime for the protection of traditional knowl- exclude other holders of the same knowledge, possibly edge related to biodiversity seeks to prevent appropriation generating rivalries. and improper use of genetic and/or biological resources by However, the acceptance of collective rights raises the third parties. It provides greater legal security to the following questions: How can such rights be exercised and relations between the parties interested in accessing defended? Who can exercise them, and in which form? genetic resources and associated traditional knowledge Who can authorise the access to traditional knowledge (bio-prospectors and academic researchers) and the when establishing prior informed consent, and in which holders (local communities) of such resources and form? While access by third parties to local knowledge or knowledge by establishing legal parameters to be observed biological resources should be governed by prior informed in these relations. consent and benefit sharing agreements, should exchange This is a response to the global debate on the protection of knowledge between them be free? Answers to such of biodiversity and associated traditional knowledge and questions should build on legal systems developed by local bio-piracy4, the States' sovereignty over their genetic communities as well. resources, the prior informed consent of communities, and the fair and equal sharing of the benefits. The Convention Recognition of customary laws on Biological Diversity (CBD) also establishes that access to indigenous or traditional knowledge, innovations and The recognition of the representation and legitimacy of practices should be subject to the approval and participation systems of local communities is a consequence of legal of the holders of the knowledge, and that benefits arising pluralism, which recognises their informal legal systems as from their utilization be shared with them. the most appropriate for providing answers to the above questions and to deal with issues related to the legitimacy and representation of these communities in procedures and Elements of a legal regime for collective intellectual property rights 3 To facilitate reading, indigenous peoples, quilombos and traditional peoples will be Legal pluralism called local communities throughout the text. 4 Bio-piracy is understood to be the access to genetic resources of a certain country, and/or The creation of such a legal regime adequate for the to the traditional knowledge associated to such genetic resources, in violation of the protection of collective traditional knowledge has to be established principles of the CBD. 3 contracts. ments for prior informed consent are met. The state carries Such recognition requires an understanding and apprecia- out consultations in situ with the holders of traditional tion of traditional norms and criteria of local communities knowledge to ensure legality and legitimacy. and their legitimacy. The enormous socio-diversity of Brazil Given the high diversity of communities, types of tradi- forbids the adoption of a homogeneous norm or single tional knowledge and the various ways of using such criterion of representation. Some local communities, for knowledge, it may not always be possible or even feasible instance, are represented by their caciques and chiefs, to reach a common perspective. However, some principles whose attributes for the exercise of power vary according should be clearly reflected in the written agreement, to their age, experience, warrior spirit, aptitude for shaman- including: ism, abilities for hunting, fishing and agriculture, while 1.specific objectives and activities agreed upon; others grant political powers to the councils of seniors. 2.parties seeking access to publicize the nature and Therefore, the law should limit itself to recognising and objectives of their intended activities, uses of the (re- granting legality to these forms of representation.5 search) activities and/or products to be developed and Formalizing representation through the formation and any existing and potential risks; registration of civil society associations has been useful in 3.research methodology, geographical area and information certain circumstances, since it also facilitates access to on the method, material and information to be collected, funding, the administration of projects, the control over and duration; bank transactions, etc. However, such associations are 4.funding sources; legal entities according to formal law, not necessarily 5.approaches, mechanisms and institutions involved in legitimate institutions of local communities. Rather, settling conflicts arising in the process; collective representation should be admitted through 6.party/ies seeking access to cover the cost of any hiring of institutions and forms of organisation as chosen by the independent technical, legal and/or scientific consultants; local communities themselves. 7.outline for an eventual benefit-sharing agreement; 8.any additional permissions and amendments to be agreed The state: guarantor of collective intellectual property prior to any respective actions; and rights 9.agreements in a language which is accessible and comprehensible by local communities; Local communities should have the inalienable, irrevocable right of denying third parties access to use of genetic Article 25 of the Temporary Measure no. 2.186-16/2001 resources and the traditional knowledge associated to such foresees that sharing of benefits can be, among others, in resources located in territories occupied by them. the form of profits sharing, payment of royalties, access to The intervention of the state should be committed to and transfer of technologies, licensing of products and guaranteeing respect for the forms of organisation and processes, and capacity building or human resources, representation of local communities, and to guaranteeing payment of collection and bio-prospecting fees for samples respect for the collective intellectual property rights of of biologic/genetic material, and the payment of fees for these peoples. The state should assist and advise holders of the research. traditional knowledge, and tangible and intangible resources An effective, equitable mechanism of benefit sharing of biodiversity, but not substitute their will and informed involves communities in research and development, capac- consent and should guarantee the adherence to the legal ity building and training, and provides access to technolo- instruments which represents the will of local communi- ties. 5 An example of an inappropriate representation is the agreement established between a Prior informed consent is the outcome of a process Brazilian University and a local community seeking to validate effectiveness of plants and through which local communities, after acquiring and rituals used in healing. It involved the collection of medicinal plants and the use of understanding all relevant information, authorise - voluntar- ily and consciously - third parties to access and use such traditional knowledge related to their use. Some four hundred species had already been resources. Prior informed consent is not an isolated collected, based on the information and recipes of seven shamans, which would have contractual action. This process comprises of several resulted in the identification of 138 probable species with some type of neurological phases and stages, with continuous exchange of informa- action, only that, at that time eleven of them had been subjected to pharmacological and tion, initiated prior to any access to or use of the resources, phyto-chemical studies. The research motivated conflicts and disagreements among the fully informing communities of risks and benefits. local communities, demanding the interruption of the project, because the researchers had The state ensures that the legal and procedural require- consulted only a fraction of the communities.holding that knowledge. 4 gies and knowledge. Instantaneous payments, such as restrict the exchange and circulation of information itself fees for collection and bio-prospecting that do not promote between the communities, possibly compromising future a wider and more permanent process of information generation and sharing of knowledge. exchange and benefit sharing are discouraged because of One possible response to this challenge would be the their limited and short-term impact. creation of benefit sharing funds (e.g. through bio-pros- The contracts should be formulated in a way that pecting taxes, royalties, participation in profits, etc.), which acknowledges traditional forms of social organization and would finance projects related to the conservation of the political representation of local communities to help limit biological diversity or projects related to the economic, internal conflicts and cultural fragmentation. Where social and cultural sustainability of peoples and communi- possible, the benefit sharing contract should be concluded ties holding the same knowledge. Such funds should be directly with the holders of traditional knowledge . How- managed by councils composed of representatives of public ever, since a large part of traditional knowledge is shared agencies, civil society organisations and organisations by several communities, the exclusive attribution of representing local communities. benefits to a select number may promote rivalries and This IK Note was written by Juliana Santilli, Attorney of the Federal District Public Prosecutor's Office, MA. in Law, (University of Brasília), Associate-Founder of the Socio-environmental Institute (ISA) and Associate of the International Institute of Education of Brazil (IEB).