Brazilian biodiversity and access to genetic resources

ACCESS TO GENETIC RESOURCES AND THE FAIR AND EQUITABLE DISTRIBUTION OF BENEFITS FOLLOWING ENACTMENT OF THE CONVENTION ON BIODIVERSITY

By Mitzi Gurgel Valente* do Costa and Wanja Campos da Nobrega**
* Head of the Environmental Division of the Ministry of Foreign Relations (MRE)
**Advisor to the Director-General of the Department of the Environment and Special Matters of the Ministry of Foreign Relations (MRE)

The essay below was originally published by the Brazilian Ministry of Foreigner Relations. The text was adapted for publication on the internet.

The enactment of the Convention on Biodiversity (CBD), in December 1993, launched a new era in the access to genetic resources.
To that time, the general view held that biodiversity and genetic resources were part of humanity's common heritage. Thus, they could be accessed freely and employed by any country able to effectively manipulate and make use of them.
Free and unlimited access was seen as an important factor for ensuring scientific progress. Particularly for the developed countries, which enjoyed – and continue to enjoy – the best and most advanced technologies and know-how for manipulating and making use of genetic resources and the associated traditional knowledge, free access at no charge, the patenting of genomes and/or discoveries arising from genetic resources. This practice was detrimental to the countries in which those resources originated, given the absence of obligations requiring that the benefits derived from the commercial use of those resources be shared.

The enactment of the Convention on Biodiversity recognized and enshrined the sovereign right of countries to control their genetic resources, as well as the need to ensure the fair and equitable distribution of the benefits stemming from access to and the commercial use of genetic resources.
The legal advances secured over eleven years ago, however, have not generated the concrete results that had been expected. This has been due, on the one hand, to a lack of knowledge and know-how on the part of most developing countries with regard to how to adequately estimate the value of their genetic resources and/or the associated traditional knowledge in a manner that assures the conclusion of agreements on access and the fair distribution of benefits and, on the other hand, the lack of interest on the part of developed countries to effectively share benefits with the holders of biodiversity, to whose territories they have historically enjoyed free access.
In other words, given that a large portion of genetic resources originate in developing countries, the arrangement in place up to the present day has resulted in net biodiversity resource transfers from the South to the North. Developed countries, for their part, produce, patent, and market, at high prices, the products developed from that biodiversity, which only further reinforces continued South-North foreign exchange flow transfers, specifically in the form of the financial resources expended to procure patented products.
In the context of this setting, developing countries must work to pass new domestic legislation and international laws. On the domestic front, adequate and specific legislation on access to genetic resources is needed that ensures benefits that are shared in a fair and equitable manner. At the international level, it is important to assure that the interests and demands of developing countries are adequately resolved through the development of an international framework capable of guaranteeing that companies and individuals that use genetic resources share their profits with the holders of biodiversity, just as readers of a published work automatically pay the book’s author royalties upon purchase of their copy.

To illustrate the importance of the issue, data collected by non-governmental organizations and bodies such as the Brazilian Environmental and Natural Resources Institute (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais – IBAMA) and the United Nations Development Program – UNDP indicates that twenty five thousand plant species are used for medicinal purposes throughout the world and that nearly twenty percent of the drugs sold in the United States of America derive from genetic resources and traditional knowledge obtained from developing countries.
Other studies, furthermore, demonstrate that the use of phytogenetic resources associated with traditional knowledge can reduce the time required for developing new substances and medications by up to five years. By reducing the period between the time a new drug is researched and its arrival on the market, the cosmetic and pharmaceutical industries have been able to cut their investment budgets. The windfall from this for research laboratories has been estimated at US$ 250 million to US$ 500 million for each patent. According to a UNDP estimate, every year developing countries lose US$ 5.4 billion in royalties generated by traditional knowledge.
The "profits" arising from these savings do not, however, flow, even in part, to developing countries, not to mention the indigenous communities or local holders of traditional knowledge.

The large sums of money that unauthorized access to genetic resources or the associated traditional knowledge can offer companies that make use of those resources or knowledge, in conjunction with the obvious difficulty of controlling such access in countries like Brazil, have transformed biopiracy into an extremely lucrative enterprise for biopirates and the recipient companies alike.
It is therefore equally evident that the efforts of the developed countries in the area of biodiversity aimed at ensuring the distribution of benefits must be tied to domestic and international controls on biopiracy.

Biopiracy is nothing new. In fact, it is said that in Brazil this illicit activity can be traced back to the country's discovery by the Portuguese.
Brazil boasts the most extensive biodiversity of any country on Earth: it is home to ten to twenty percent of all the planet's species and 55.000 plant species (or twenty two percent of the world total); it has the richest variety of palm (390) and orchid (2.300) species; at least ten percent of all amphibian and mammalian species are found in the country, as well as seventeen percent of the world's aviary species; over three thousand species of fresh water fish, more than twice the number found in any other country, are located within its borders; and it is estimated that there are five to ten million insect species within the country’s territory.
It is highly possible that scientists will be unable to record the country's entire existing stock of biodiversity due to its sheer breadth and variety and particularly in light of the rate at which species are disappearing, including those not yet known to science.
This enormous biodiversity has indisputable value from an environmental, social, economic, and commercial standpoint. Nonetheless, to date it has not translated into economic value proportional to its size, nor brought a better life to communities with traditional knowledge. The key question, therefore, is how to prevent biopiracy and implement an international legal framework capable of guaranteeing a fair and equitable distribution of the benefits generated from the use of biodiversity.
The solution is rooted in ensuring inclusion as a pre-requisite for the patenting of products derived from biodiversity, legal certification of the origin of the pertinent genetic resource, and proof of a benefit sharing contract consistent with the national legislation of the country in which a given resource originated. This is the only way to effectively prevent biopiracy, which has been responsible for the death and mutilation of wild animals and for depriving developing countries of the opportunity and interest to effectively invest in the conservation of their natural endowments and await compensation generated by these efforts that is both fair and commensurate with the services afforded by nature.

To achieve these ends, it is essential to act on the domestic front – by improving and passing appropriate legislation – but, above all, at the international level, by working toward the implementation of the CDB (Code of Defense of Biodiversity), in conjunction with the TRIPS and the WIPO, and all other pertinent forums. Coordinated action aimed at respecting the sovereign right of countries to control their biodiversity, as well as the fair and equitable distribution of the benefits derived from the use of biological resources and the associated traditional knowledge, must be promoted.

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