Laymert Garcia dos Santos with Gabriele Muzio^*

1. Introduction The Brazilian jurisdiction, sharing the same principles of most Western societies, is based on the concept of individual rather than collective rights. The concept of "shared" interest began to surface in the 1980s in relation with legal protection of the environment. Although not formally recognized within the realm of jurisprudence, these community interests have become de facto kind of collective rights.

2. The 1988 Constitution The 1988 constitution has finally sanctioned the recognition of collective rights as pertaining to the sphere of jurisprudence. Collective rights can not be disposed of, assigned, transferred or impounded and they do not decay. As a result, they have no economic value for individuals.

The collective rights that appear to have a greater bearing on the potential protection of indigenous communities are: Right to cultural patrimony: goods of material and intangible nature taken individually or as a whole, which embodies the identity, action and memory of the different groups which integrate the Brazilian society (Art. 216); Right to socio­diversity: establishes the intention to protect local living cultures and can be interpreted as the protection of multicultural nature of Brazilian society (Art. 215, 1.); Right to an ecologically­balanced natural environment: this notion is raised to the category of a juridically recognized good (Art. 225); and Right to biodiversity, defined by the constitution as the genetic patrimony of the country (Art. 225).

3. The Current Legal Framework Concerning Indigenous Rights 3.1 Constitutional Provisions on Indigenous Rights

The specific mention of indigenous people rights in the constitution is contained in Chapter VII, which in Article 231 contains ample expression of good intentions and institutional commitment to the recognition of "original rights". As a matter of fact, the rights that are contemplated are land rights not in the sense of ownership but rather of use and enjoyment of the riches of the natural resources present in those areas. While the Union (i.e. the Federal Republic of Brazil) maintains ultimate property title of those lands and is responsible for the demarcation of reserves and the protection of indigenous patrimony, once demarcated those lands are assigned to the community in usufruct.
The constitutional provision contained in the Article 231 marks a substantial advance for the recognition of indigenous communities' rights because for the first time the state acknowledged the existence of original rights, which precedes the establishment of the Brazilian state itself. And the new constitution refers to these original rights in the framework of collective rather than individual rights, deemed as they are to pertain to communities and/or societies. In the context of the conceptual changes introduced by the 1988 constitution, a new Statute of indigenous societies is intended to replace the previous "Statute of the Indian".

3.2 The Statute of Indigenous Societies The Statute, which is still to receive the Senate's approval, is intended to set out in more detailed and practical terms both the principles of collective indigenous rights and the legal conditions for their protection.
In this text, Article 6 defines indigenous community as "a local human group which is part of an indigenous society", and defines indigenous societies as "communities which differentiate among themselves and in the whole of society because of their ties with populations of Pre­Columbian origins".
Article 8 recognizes that indigenous communities possess juridical existence in their own right, i.e. such existence does not rely on any text or any act of the State, but as it precedes its recognition by the State it represents another "original right". Article 12 provides that indigenous peoples, communities and organizations are ensured of their right to engage on all issues that concern them, at all levels.
In Chapter I, "On indigenous patrimony" (Article 14), we find the list of rights related to what indigenous communities and/or societies shall "have": original rights to land, to usufruct the riches (as stated in the Constitution) of movable property and real estate purchased for any reason, copyrights, rights over immaterial properties related to different indigenous communities' social and cultural production.

4. Specific Provisions on Intellectual Property In Chapter II, "on intellectual property" (Articles 18-29), the rights that concern knowledge, innovation and practices are defined. Although the chapter is presented as a way to protect indigenous intellectual rights, its method involves the transfer of indigenous knowledge into the patent system with the kind of cultural and conceptual violence that transfer presupposes.
Articles 18 attributes to the indigenous communities the fundamental right to keep secret and confidential their traditional knowledge, particularly those which relate to the characteristics and properties of ecosystems and natural habitats, living species, plants and animals, micro-organisms, drugs and natural oils, or any other biological or genetic resource or process. Paragraph 1 states the right of communities to refuse access to traditional knowledge.
Article 19 is concerned with the right to indigenous communities and societies, but not to individuals, to file for the patent of material and intangible properties based on traditional collective knowledge.
Article 20 provides that access to use and application of traditional knowledge requires previous "consent of indigenous communities" involved. This consent will take the form of a written contract (Paragraph 1) subscribed by the "partners" with the "assistance of the federal authority". Such a contract will guarantee fair renumeration for communities and equitable sharing of benefits. Paragraph 4 rules that "contracts will become null when they do not specifically state that partners share co­ownership over all the results of research and products".
Article 21 says that indigenous communities and societies will always share ownership of patents obtained by others on the basis of such communities' knowledge. Furthermore, according to Article 24, no patent can subsequently change ownership without an explicit consent by the community concerned.
Articles 25 to 27 relate to the exclusive competence of Brazilian courts and jurisdiction in potential conflicts on the issue of IPRs involving Brazilian indigenous groups, the permanent nature of IPRs and the compatibility requirements between the provisions of the Statute and any other legislation covering industrial property rights, when those are related to indigenous IPRs.
Article 28 extends the protection to traditional knowledge, resources and processes, regardless of whether they are or will become the object of patenting.

5. The Main Problems of the Legal Framework Proposed by the Statute

After this well­articulated and apparently quite consistent "safety net" for indigenous communities' IPRs, the next provision, contained in Article 29, effectively debases the whole structure of protection. Article 29 of the Statute states that all the conditions for protection of indigenous collective intellectual property provided by the other clauses of the Statute are suspended, when the scientific research involving genetic and other material to be found in indigenous territory is of "academic" nature. It specifically states that in the case of the results, publications, innovation and any product derived from such "academic" activity, all the provisions protecting indigenous rights in terms of co­ownership, nature of contracts and security of access (i.e. those contained in Art. 20) do not apply, even when those results and products may be marketed by the "academic" researchers and institutions. This appears to open up an unrestricted access to indigenous communities' material and intangible resources by "academic" researchers and institutions. This would amount to an undisguised determination to leave a very large loophole into the building block of the Statute. If left there it would result in the lack of legal protection for indigenous communities and the possibility of recourse as any predator would be able technically to present its activities as "academic".
Chapter III, "On copyrights" treats the subject, once again, under collective or "society" right. It appears to contain no harmful provisions.
The main problem rests therefore with Chapter II that would ideally need to be rewritten in its entirety, starting from its title, which seems inappropriate.

6. A Short Note on the Notion of "Intellectual Property" The notion of "intellectual property" applied to indigenous people and their traditional knowledge appears to be inadequate, starting from the choice of terms used to construct it that could lead to a biased conception.
Intellectual: the issue of "intellectually­based resources" cannot and should not be treated in isolation. This is because a right over those resources has little meaning if isolated from the rights of survival, where survival is defined in the wider framework of biological and cultural security within a highly diverse natural environment for the people concerned. The fact that today there are resources which are considered as high economic value by scientists and the industrial and technological systems which supports them, is strictly linked to the existence of an ancestral system of peaceful and sustainable coexistence between humans and the surrounding natural system. In other words, the survival of those natural "goods" is due to living practices and original cultures of those human communities. Hence, they are intellectually­based. However, unless security over the conservation of the natural habitats of those communities is absolutely guaranteed, there is no culturally­based sustainable life­support system left. The material goods (plants and animals) over which the "intangibles" rest (i.e.traditional knowledge, medicine, wisdom, etc.), will not survive as they will be rapidly depleted or destroyed.
To summarize, any separation between the "rights" of communities and the wider conception and action required for conservation is misleading. Conservation of biodiversity is a requisite for the collective survival of those communities and their traditional knowledge and thus cannot be separated from the rest.
Property: The legal framework proposed does not deal with the protection of community rights per se, which would obviously require to address specifically the issue of survival needs discussed above, but because these rights are treated as "property" ultimately bearing "economic value", the system of protection can only be inscribed within Western­style property law. This is clearly another form of abuse of the collective intellectual and cultural rights of indigenous people, purported to be the object of protection, as it does in no way recognize the existence of an internal system of regulations of those people based on traditional values. But no effective system of protection of intellectually­based resources intimately tied to the original culture of a community can be conceived, let alone applied, unless it is founded on the full recognition and respect of that culture. This means, among other things, that indigenous communities should be enabled to make a direct contribution to the establishment of a code.
The contribution that Western juridical thought and practice can offer to the conservation of traditional cultures and customs, including their internal systems of regulation and authority, and survival of the communities themselves would then appear in a different light. The modern state, within its own referential system, should construct a legal framework of external protection of indigenous communities and societies by restricting access and interference by all kind of economic and cultural predators. The communities themselves would then be left, internally, with the task of continuing to organize production, circulation and exchange of knowledge according to their own traditional customs, which would be explicitly recognized and respected by the modern state authorities and legal apparatus. Security of their internal system of regulation would also eliminate the need for indigenous communities to have constant recourse to a Western­inspired regulation system which they can neither understand nor share its principles. At the same time they would be protected, externally, from undesired access and manipulation and other types of abuse.
In summary, this would amount to the recognition by Western law of a difference, based on culture, a kind of "original right" or law which represents the extension of the right to land and nature. The adoption of this type of principle, in the case of Brazil, would find a base in Article 231 of the 1988 Constitution.

7. The Issue of Farmers' Rights In the case of collective intellectual property rights on plant genetic resources (PGRs), which relates to farmers, there is no legislative initiative yet. In fact, by and large it is still very hard to find Brazilian scientists or officials involved in biodiversity issues who have any idea that in­situ conservation involves farming at all, or anything other than territorial "conservation units".
However, the Plant Breeders' Rights (PBRs) bill (also known as the cultivars act) that the Brazilian government is keen for Congress to approve as rapidly as possible may offer some scope for action. In particular, Article 34 of the bill says that "protection is null when (among other things) it has been granted in prejudice to the rights of third parties". At the moment this provision does not contain procedural rules concerning the way in which a previously issued licence could be cancelled, but the text could possibly be modified to create some provision for farmers' rights. At the same time, article 14 of this bill stipulates that information on the variety for which protection is requested must include: "I. the botanical species; II. the name of the cultivar; III. the genetic origin", etc.
However, as the cultivars act defines as "new" any plant variety which has not been marketed over the previous twelve months, thus opening the way to any purported plant breeder to register them for protection in his/her own name. Such commercially­oriented definition would appear to deny any possibility of affording farmers' protection on any variety that has traditionally been in use and any object of customary non­monetary exchange between individuals and communities.
The combination of the provisions contained in Articles 14 and 34 could be worked out to prevent the protection under PBR legislation of any cultivar incorporating genetic material which can be proved to have come from a particular farmer, community or region, regardless of whether or not they have been marketed in the past. This would possibly require four additional provisions:

1. Make it explicit in Article 34 that farmer­breeders (or whatever they may be called) have rights over their plant genetic resources, and are thus potentially third parties as referred to in the text of the proposed legislation.

2. The conditions of protection expressed in this bill in principle should in any case be complemented in the specific law on access to genetic resources in general, in line with Biodiversity Convention provisions.

3. Information regarding the genetic origin of the cultivar required by Article 14 must include the specific geographic and social origins of the varieties used in its composition.

4. The provision to protect farmers' rights as "third party interests" be designed in such a way as to apply whether or not the plant genetic material involved has ever been marketed previously.
The immediate impact of the proposed extension of the PBR bill suggested in the above provisions would be to deny absolute protection to the seed companies, rather than to provide compensation for farmers, communities, regions or nations. It is, however, better than the nothing offered by the present government proposal.

Brazil

Biodiversity and Biotechnology and Possible Steps Which Could Elicit a Request for Community Intellectual Rights (CIRs) Protection

1. Introduction This appendix consists of a checklist of the possible steps in the generation and maintenance of biodiversity and biotechnology, including knowledge gained through generations of experimentation that are being used or could be used to elicit IPRs protection. The legal issue of the status of the IPRs protection for the steps indicated is not answered; answering it is to be left to those with legal training. The items are, in fact, only aimed at alerting them to the technical issues so that they may look for corresponding legal issues. It is hoped that this in turn will help them develop a Community Intellectual Rights protecting system.

2. Biotechnological Steps Which Could Elicit IPRs Protection Request
2.1 Cross Breeding within Species - used both by scientists and farmers. 2.1.1 Is it possible in the North to claim Plant Breeders' Rights (PBRs) for:
- Method - No?
- Variety or Breed - Yes?
Note that farmers' varieties of crops are produced by peasants using this technique. But they have been given a separate epithet land-race, and this artificially distinguishes them as not worthy of Plant Breeders' Rights (PBRs). Also note that scientists replicate and use statistical tests; peasants also replicate both in space and more importantly, through repeated observations over time. The net result of both types of observation is the same: the characterization of a distinct breed or variety.
2.1.2 Is it Possible in the North to claim a Patent for:
- Method - No?
- Variety or Breed - ? Yes in USA and Italy
2.2 Cross breeding within related spp.
- Used by both scientists and farmers.
2.2.1 Is it possible in the North to claim PBRs?
- Same as 2.1. 2.2.2 Is it possible in the North to claim Patent?
- Same as 2.1.
2.3 Tissue culture, in which tissue-cells are kept cultured. Only scientists do this.
2.3.1 Is it possible in the North to claim PBRs for the method - Does not make sense as PBRs protect only variety and not method.
Is it possible in the North to claim PBRs for Variety - Does not make sense as no variety produced (contrast with 2.4).
2.3.2 Is it possible to claim in the North Patent for method - ? Yes
Is it possible in the North to claim Patent for variety - Does not make sense since no variety produced.
2.4 Regeneration from cultured tissue cells - Only scientists do this.
2.4.1 Is it possible in the North to claim PBRs for method - Does not make sense as PBRs protect only variety and not method.
Is it possible in the North to claim PBRs for variety - ? Yes
2.4.2 Is it possible in the North to claim Patent for method - ? Yes
Is it possible in the North to claim Patent for variety - ?
2.5 Somaclonal variation - in which tissue cells in culture are subjected to specified environmental variation to select from existing genetic variation, then regeneration of variety. Only scientists do this.
2.5.1 Is it possible in the North to claim PBRs for method - answered in 2.3.1 & 2.4.1.
Is it possible in the North to claim PBRs for variety - answered in 2.3.1 & 2.4.1
2.5.2 Is it possible in the North to claim Patent for method - answered in 2.3.2 & 2.4.2
Is it possible in the North to claim Patent for variety - answered in 2.3.2 & 2.4.2
2.6 Somaclonal variation, in which mutation is induced in tissue
2.6.1 Is it possible in the North to claim PBRs for method - Does not make sense as PBRs protect variety but not method
Is it possible in the North to claim PBRs for variety - ? Yes
2.6.2 Is it possible in the North to claim Patent for method - ? Yes
Is it possible in the North to claim Patent for variety - ? Yes, in USA and Italy.
2.7 Cause cross fertilization between unrelated species and rescue embryo before abortion, then grow in culture. Done only by scientists.
2.7.1 Is it possible in the North to claim PBRs for method - Does not make sense as PBRs do not protect method.
Is it possible in the North to claim PBRs for variety - ? Yes
2.7.2 Is it possible in the North to claim Patent for method - ? Yes
Is it possible in the North to claim Patent for variety -? Yes, in USA and Italy.
2.8 Protoplast fusion (followed by tissue culture and regeneration, see 2.3 and 2.4). Done only by scientists
2.8.1 Is it possible in the North to claim PBRs for method - Does not make sense as PBRs do not protect method.
Is it possible in the North to claim PBRs for variety - ? Yes
2.8.2 Is it possible in the North to claim Patent for method - ? Yes
Is it possible in the North to claim Patent for variety - ? Yes, in USA and Italy.
2.9 Anther culture (followed by protoplast fusion see 2.8, then tissue culture see 2.3 and regeneration 2.4). Done only by scientists.
2.9.1 Is it possible in the North to claim PBRs for method - Does not make sense as PBRs do not protect method.
Is it possible in the North to claim PBRs for variety - ? Yes
2.9.2 Is it possible in the North to claim Patent for method - ? Yes
Is it possible in the North to claim Patent for variety -? Yes, in USA and Italy.
2.10 Mutation in whole organism, induced, done only by scientists.
2.10.1 Is it possible in the North to claim PBRs for method - does not make sense as PBRs protect only variety.
Is it possible in the North to claim PBRs for variety - ? Yes
2.10.2 Is it possible in the North to claim Patent for method - ? Yes
Is it possible in the North to claim Patent for variety -? Yes, in USA and Italy.
2.11 Mutation, natural - noticed when it occurs and used by both scientists and peasants. But do peasants plant in such a way as to increase chances of mutation? Needs further exploration. For the time being, assume that they do not.
2.11.1 Is it possible in the North to claim PBRs for method - Does not make sense as PBRs do not protect method
Is it possible in the North to claim PBRs for variety - ? Yes
2.11.2 Is it possible in the North to claim Patent for method - Does not make sense, as it is natural phenomena that are responsible
Is it possible in the North to claim Patent for variety - ? Yes, in the USA and Italy.
2.12 Genetic engineering using a vector, e.g. Agrobacterium tumefaciens.
Done only by scientists
2.12.1 A single gene used
2.12.1.1 Is it possible in the North to claim PBRs for method - Does not make sense as PBRs do not protect method
Is it possible in the North to claim PBRs for variety - ? Yes
2.12.1.2 Is it possible in the North to claim Patent for method - ? Yes
Is it possible in the North to claim Patent for variety - ? Yes, in USA and Italy.
2.12.2 Set of genes in a piece of chromosome controlling several traits
2.12.2.1 Is it possible in the North to claim PBRs for method - Does not make sense as PBRs do not protect method
Is it possible in the North to claim PBRs for variety - ? Yes
2.12.2.2 Is it possible in the North to claim Patent for method - ? Yes
Is it possible in the North to claim Patent for variety - ? Yes, in USA and Italy.
2.12.3 Set of single genes introduced successively which, added up, produce a desired trait controlled by several (many) genes, e.g. horizontal resistance to diseases.
2.12.3.1 Is it possible in the North to claim PBRs for method - Does not make sense as PBRs do not protect method
Is it possible in the North to claim PBRs for variety - ? Yes
2.12.3.2 Is it possible in the North to claim Patent for method - ? Yes
Is it possible in the North to claim Patent for variety - ? Yes, in USA and Italy.
2.13 Genetic engineering using a "gene gun" or other physical means - Done only by scientists.
Details same as in 2.12
2.14 Genetic engineering using as yet undiscovered methods - Most likely to be done only by scientists.
Details as in 2.12
2.15 Animal Breeding
U>Note that the modern biotechnologies used in animal breeding are more restricted, and similar to some of the above methods involved in plant breeding. They all involve the introduction of the desired genes physically (as with the "gene gun") into the egg, artificial fertilization, and implanting in the womb or incubating the egg as the case may be. If a scheme of CIRs that applies to plants is worked out, therefore, it would be easy to fit in animals as well.
2.16 Using microorganisms for fermentation to make an end-product, e.g. alcohol, or to enrich or flavour food. Used by scientists and by all types of society. But note that except for scientists, others do not think of the micro-organisms. They only think of the steps to take, or of the process. Obviously, therefore, PBRs's could not be applied even in the North.
2.16.1 Is it possible in the North to claim Patent for the sequence of micro-organisms used (the method) - ? Yes
2.16.2 Is it possible in the North to claim Patent for the end product - ? Yes
2.16.3 Is it possible in the North to claim Patent for the micro-organisms used - ?
- Only as used for this purpose - ?
(Note that though the indigenous communities cannot identify the micro-organisms, they identify their role, and they could be helped by institutions to identify the organisms whose functions they know).
- Per se - ?
(Note that scientists could ask for such a patent, but not indigenous communities on their own. But they can if technical institutions identify the organisms for them).
2.17 Using micro-organisms to compost organic matter. Used by scientists and peasants, but the micro-organisms consciously recognized only by scientists. With the help of technical institutions, however, the micro-organisms could be recognized by indigenous communities as well.
2.17.1 Is it possible in the North to claim Patent for the sequence of micro-organisms - ? Yes
2.17.2 Is it possible in the North to claim Patent for the compost, or particular components of it - ? Yes
2.17.3 Is it possible in the North to claim Patent for the micro-organisms used (c.f. 2.16.3)
- Only as used for the purpose - ?
- Per se - ?
2.18 Microorganisms used to improve soil fertility. Used by scientists and peasants. But note that it is only the scientists that specifically recognize the micro-organisms. But again, supported by technical institutions, indigenous communities could also recognize them.
2.18.1 Is it possible in the North to claim Patent for the organisms used (c.f. 2.16.3)
- Only as used for the purpose - ?
- Per se - ?
2.18.2 Is it possible in the North to claim Patent for the method of applying the micro-organisms - ?
2.19 Microorganisms used for tanning, used mainly by all types of traditional society (industrial tanning tends to use chemicals instead).
2.19.1 Is it possible in the North to claim Patent for the sequence of micro-organisms used - ?
2.19.2 Is it possible in the North to claim Patent for the leather thus tanned - ?
2.19.3 Is it possible in the North to claim Patent for the micro-organisms
- Only as thus used - ?
- Per se - ?
2.20 Micro-organisms used for retting fiber plants. Used by all sorts of traditional societies and ?by scientists.
2.20.1 Is it possible in the North to claim Patent for the sequence of micro-organisms used - ?
2.20.2 Is it possible in the North to claim Patent for the fiber thus retted - ?
2.20.3 Is it possible in the North to claim Patent for the micro-organisms
- Only as used thus - ?
- Per se - ?

3. Considerations When Evaluating CIRs Possibilities
3.1 Patenting Techniques (methods)
The technique could be physical (e.g. gene gun), biochemical (e.g. the enzymes used in tissue culture) or biological (e.g. the use of Agrobacterium tumefaciens as a vector). Some of these are used by local communities and they could thus enjoy CIRs.
3.1.1 The IPR consideration could, in general, apply to:
- its use on a single species only, or
- its use also on additional species
3.1.2 In the case of genetic engineering transferring a gene(s) to a given species, the IPR consideration could apply to restrict application of technique to:
- Only the gene(s) used, and the species into which the gene transfer was carried out;
- Only the species (2 or more) which were involved in the gene transfer;
- The transfer of any gene into the species into which the gene(s) had been transferred;
- The transfer of any gene into any species through the use of the technique.
3.2 CIRs Protection of Genes
Local communities can not go for CIRs protection of genes alone, but they can do so with the assistance of technical institutions who will identify for them the genes for the specific traits already developed by them (local communities). However, since it seems that traits can, per se, be patented in the North (in the USA and Italy), the identification of the gene(s) may not be necessary.
The gene(s) modified through mutation or deliberate chemical reaction could be considered for CIRs protection. For doing so, the questions to answer would be:
3.2.1 Is it possible in the North to claim IPRs when the modified genes are expressed in traits in the organism
- In the first species used only - ?
- In subsequent species used as well - ?
3.2.2 Is it possible in the North to claim IPRs when the modified genes are masked. As far as we now know, nobody is interested in masked genes and IPR protection would not make sense.
3.3 CIRs Protection for Traits
Considerations of CIRs protection for traits could include:
3.3.1 Is it possible in the North to claim IPRs when the genes controlling the traits are known
- In first species only - ?
- In subsequent species as well - ?
This can be done only by scientists. However local communities produce most of the traits and technical institutions could help them identify the responsible gene(s).
3.3.2 Is it possible in the North to claim IPRs when the genes controlling the traits are not known - ? Yes, in the USA and Italy.
3.4 IPR Protection of Substances Produced: Substances produced may be attributed to a known gene or set of genes.
>3.4.1 Is it possible in the North to claim IPRs when the product is attributable to a gene or to a set of genes:
- In the first species only - ?
- In subsequent species also - ?
This is done by scientists. But local communities could be helped by technical institutions to identify the genes responsible for the products they (the local communities) have developed.
3.4.2 Is it possible in the North to claim IPRs when the product is not attributable to gene(s) but the characteristics of the species are defined? In this case, all considerations concern only the species so characterised. This is done by both indigenous communities and scientists equally well.
3.5 Protecting/Selling Information
Wild plants and animals or even specialized varieties/farmers' varieties of crops and domesticated animals become useful, or even are known as harmful, only when packaged with information about them from the local populations in the area where they occur, e.g. their use as medicinal plants or their damage as poison. Such information has value, and some pharmaceutical firms are already signing contracts with collectors of such information and plant specimen packages to give in exchange some cash on an immediate basis, and a share of royalties on any subsequent patenting. This should be re-examined from the Southern vantage point and it is the local communities that should be the CIRs holders, with the Northern institutions acting under contract to the local communities.