Traditional Biodiversity-Related Knowledge and Practices in Latin America

By Dra. Teodora ZamudioUniversity of Buenos Aires ~ Argentina

Siena- Italia Octubre de 2004

A Scientific Analysis of Herbal Remedies …

Farnsworth has estimated that 3.5 to 4 billion of the world's population rely on

plants as their primary source of drug therapy. Ethan Russo reminds us that Medical drugs currently in use in the developed

world come from only about 95 of the 250,000 known species of flowering plants on earth.

Scientists conservatively estimate that at least 300 useful drugs are still undiscovered in

the tropical rainforests of South America, at a potential profit of $94 million each.

Mark Plotkin wrote that every time a shaman dies,

it's like a giant library of medicinal plant knowledge

has burned down.

A sui generis system for the protection of the traditional knowledgeGoals & Purposes

Identify the more adequate characteristics for the protection, in general terms:

People that could be reached: needs and awareness (significance)

Political & economical objectives Awareness and social

consensus about the need of protection

Related rights that could be affected

Market where that protection should be operative

Tools Identify the elements of the system for a more efficient protection

Extension of the elements to be protected (TBRK only – all TK)

Requirement of the elements to be protected (criteria & indicators)

Assignees – Holders (public, communal and private interests)

Extension of the rights (public dominion)

Requirements for fair and enforced negotiation (disposition and benefits distribution)

Incidence of the own indigenous right systems

Overview - regional issues Indigenous population is

estimated in 46 millions; and 400 ethnic groups approximately

other ethnic groups consider themselves as local or traditional people (Marroon, Creole, Mulatto, Mestizo)

non-contacted indigenous communities, by national laws

naturally isolated communities of the Amazon basin (less than 300 members, each)

white27%

east indian9%

others10%

indigenous13%

black5%

creole3%

mulato5%

mestizo27%

maroons1%

local35%

South South AmericaAmerica

Overview - regional issues

Indigenous population is almost 20 to 50 millions

Mesoamerican corridor

México’s Indigenous groups are 1/3 of total

Guatemala‘s Indigenous population reaches 50%

Belize’s ethnic groups are 15 % of total

the Garifunas (Afro-Caribbean population) are widely and internationally recognized as local people

white18%

indigenous14%

creole3%

mestizo60%

local64%black

2%

others2%

Garifuna1%

Central Central AmericaAmerica

TK. Definition The concept of ‘Tradition-based

knowledge’ refers to knowledge systems, creations, innovations and cultural expressions which:

1. have generally been transmitted from generation to generation;

2. are generally regarded as pertaining to a particular people or to the traditional territory; and

3. are constantly evolving in response to a changing environment.

‘Traditional’, therefore, does not necessarily relate to the nature of the knowledge but to the way in which it is created, preserved and disseminated.

the Mamperikipini, (Fittonia sp.) is employed by the Kofan and Siona-Secoya (Ecuadorian Amazon) to treat the headaches, but the Machiguenga (Peruvian rainforest) know it as hallucinogen, used in large amounts as part of the kamarampi mixture in former generations before they gained knowledge in the use of Psychotria sp. for this purpose.

Not all medicinal plants used according to the current knowledge of indigenous groups are native to the area of those groups. Many species that play a significant role in nowadays indigenous herbal remedies have been introduced lately, such as Mexican lime (Rutaceae), orange (Rutaceae), peach (Prunus persica) and banana (Musa sp.)

TK. Concepts

Traditional knowledge has a cultural dimension and a social context

Local peoples face a set of interrelated problems and they often attempt to solve them by applying their knowledge in a holistic way

Among its creators, traditional knowledge and practices are divided by holders rather than the subject-matter

The tobacco leaves are toasted over the embers as an important element of the kamarampikamarampi session. SeriSeri (tobacco) is an integral part of Machiguenga ritual, the term for shaman is seripegariseripegari, or "he who uses tobacco".

TK. Types The Guanano’s, from

Colombia, distinguish:

sacred knowledge (held by the shaman);

specialized knowledge; (it is in the ‘public domain’ for the community, but it demands dedication, techniques and reciprocity)

women’s knowledge (specialized skills handed down from mother to daughter)

cross-sectional knowledge (produced by the exchanges with neighboring groups)

Traditional skills preserve the country's

genetic resources

Mayan traditions among the women at Huehuetenango (Guatemala)

⇓ 47 different classes of maize,

including at least 8 races or sub varieties, and 4 sub races of Maize

(as well as the teosinte)

TK. Ingredients Oral traditions

Religious components the classification and hierachies of elements and organisms of the natural

world are given by the power of their own spiritual ‘double beings’

the shamans obtain new species from the ‘supernatural beings’ of the surrounding landscape: the Sangariite (invisible beings) who are contacted through the use of hallucinogens and spiritual negotiations.

some sicknesses (of supernatural origin), can only be treated by the use of plants in special ceremonies.

It is also linked to language knowledge of plant names and plant-naming competences are indicators

of correct knowledge of use (introduction of european languages have contributed significantly to diminishing these skills)

TK. ChallengesIntroduction of industrialized and homogenous plant/animals cultures

loss of diversity

Inclusion of indigenous people in educational programs

loss of language and comprehension of the ‘old’ resources

Commercial exploitations displace ethno gardens loss of resources and traditions

Dislocating factors (migrations/ increasing popularity of native medicines)

change of livelihoods

Contact with urban people caused unknown diseases

extinction of population

Inclusion of indigenous communities in governmental health programs

replacement of traditions

Impact of new religions loss of self-esteem and traditions

Strategic planning for retention of TKCapacity building seeks:

on one hand:

rescue and protection of the traditional lands and resources;

promotion of the use of traditional technologies arising from the use of the knowledge, innovations and practices

on the other hand:

support the appropriated design and implementation of data bases

register evidence of the existing traditional knowledge

Measures for protection

consolidation of the identity-territory-autonomyidentity-territory-autonomy axis to avoid: dismemberment of indigenous territories through arbitrary

administrative subdivisions

regulations for the historical patrimony opposite to the ancestral forms of property

environmental rules incompatible with their lifestyle and customary purposes

legal measures related to intellectual property on traditional knowledge

equitable distribution of benefits

informed and consented access to traditional knowledge

TK. Standards for its legal protection

a) distinction between traditional knowledge documentation and entry of traditional knowledge into the public domain;

b) consistent and coherent consideration of its elements into an indivisible (holistic) piece

c) development of special and effective international mechanisms

d) stipulations for the IPR’s applicants:

a) evidence of prior ‘informed’ consent of the providers coming from different cultural structures;

b) disclosure of cultural sources in any application for intellectual property rights

Legal scope for the protection of TKHuman Rights systems Identity components

Religious freedom components

Environmental preservation systems Environ-Guardians of:

→ Protected Areas→ RAMSAR-Areas (birds migration)

Property Right systems Intellectual property

Usual IPRs ⇒ Patents⇒ Trademarks⇒ Industrial design⇒ Model of utility⇒ Copyright ⇒ Breeders Rights

Specific new IPRs category To be fitted Traditional Knowledge Traditional Knowledge Property System Property System

Constituição Federal da Republica Federativa do Brasil

Art. 225. (VII) (4°) A Floresta Amazônica brasileira, a Mata Atlântica, a Serra do Mar, o Pantanal Mato-Grossense e a Zona Costeira são patrimônio nacional, … inclusive quanto ao uso dos recursos naturais.

Art. 231: So reconhecidos aos indios … os direitos originários sobre as terras que tradicionalmente ocupam, ... (6°.) Sáo nulos … a exploracáo das riquezas naturais … ressalvado o relevante interesse público da Uniáo

Decreto 98830/90 y Medida provisoria 2126/11 (2001) O conhecimento tradicional associado ao patrimônio

genético ... integra o patrimônio cultural brasileirointegra o patrimônio cultural brasileiro monopólio da União: Ministério da Ciência e Tecnologia

TK registration. Tasks choice of an appropriate term, or terms, to describe the subject

matter; including:

material and spiritual support of the expressions of such knowledge

environmental dependency

consideration of its evolving conditions

identification or description of the subject matter to be covered by the term or terms, selected among others:

origin, source communitarian ownership

representation system to take valid decision upon it.

focused Registers

According to stuff For example, Panama register

↪ Textiles

According to application

For example, India/Philippines register

↪ Medicinal stuff and treatments

For example, Peru register ↪ Biodiversity related knowledge

wide-ranging Registers

Registers’ classification Registers’ classification Classes within the Category

According to objectives or uses

For example, knowledge aboutknowledge about:

Medicine Environment preservation Food Industrial exploitations: mining, forestry, harvest, etc

According to resources For example, knowledge onknowledge on:

Plants Animals Microorganisms Minerals & metals Energy sources

The shaman and the visitors (an exercise)

While performing this ceremony the shaman is visited by: a botanist working for a large company which specializes in herbal remedies who collects a sample

of the seeds and fruits, a biochemist working for a multinational pharmaceutical firm who takes a sample of the potion, a graduate student linguist who records the prayer for her thesis on shamanic prayers, a videographer who videotapes the shaman’s activities for a BBC documentary of shamanic rituals, a vase designer employed by Crate and Barrel who sketches the vase, and lastly a fashion designer from Ralph Lauren who takes a fancy to the shaman’s robes.

Let us imagine that a member of an Amazon tribe does not feel well and requests the shaman’s medical services. The shaman, after examining the patient, will go to his garden and collect some leaves, seeds and fruits from different plants. Mixing those materials according to a method only he knows, he prepares a potion according to a recipe of which he is the sole holder. While preparing the potion and, afterwards, while administering it to the patient (according to a dosage he will likewise prescribe), the shaman prays to the gods of the forest and performs a religious dance. He may also inhale the smoke of the leaves of a magical plant. The potion will be served and saved in a vase with symbolic designs and the shaman will wear his ceremonial garments for the healing. In certain cultures, the shaman is not seen as the healer, but as the instrument that conveys the healing from the gods to the patient.

Let know your opinion as to what is fair and equitable. Do you think the visitors’ activities violate the shaman’s rights? Do you think the shaman has an interest in (or rights upon) any of the

following (without regard to the practicalities of enforcing those rights):1. The botanist’s company exports seeds harvested in the jungle to

the US.

2. The botanist’s company grows plants from the seeds collected in the jungle and sells seeds produced by those plants in the US.

3. The pharmaceutical company finds an active ingredient in the potion that is already well-known, although not currently used for the ailment under question. They issued a US patent for that application and after spending $200 M on clinical trials the drug is approved for use in the US.

4. The graduate student publishes her thesis as a book.

5. Michael Flatley views the BBC documentary and includes some of the shaman’s dance motions in his new show ‘Amazon Riverdance’.

6. The vase designer takes the basic design and magnifies it into an umbrella stand.

7. The fashion designer creates a handbag containing some of the hieroglyphs she saw on the robe.

Would your answers change if the information about the potion, prayer, vase, etc.,

1. were held in common by many or most of the members of the community rather than just by the shaman?

2. were been declared national patrimony of the country this community lives in?

Under existing intellectual property law the shaman might be able to make the following claims:1. the different plants from which the shaman has made the potion may be protected under a plant

variety protection system, provide the plants are new, stable, distinct and uniform;2. the potion (or the formula thereof) can be the subject matter of a patent, provided it is new, inventive

and susceptible of industrial application, or as undisclosed information;3. the use and the dosage of the potion can also be protected by a patent, under the laws of a few

countries which make patents available for new uses of substances as well as for new and inventive therapeutic methods;

4. the prayer, once fixed, could be copyrighted;5. the performance, once fixed, can be protected by copyright-related rights, and the shaman - as

performer - can be accorded the right to authorize the fixation of the performance;6. the vase containing the potion can be patented or protected under a utility model certificate if it has

new and inventive functional features; if not, it can be protected under an industrial design system;7. the designs on the vase and on the garments can be protected either by the copyright or by the

industrial design systems. What obstacles do you see to claiming protection under existing law? If the claims could be made what problems could arise from claiming or attempting to

claim those protections? If you believe that the shaman’s or community’s interest needs additional protection

beyond existing intellectual property law, what mechanisms would you suggest?

THANK YOUTHANK YOU