Since 1993, the Convention on Biological Diversity (CBD) has sought to promote and foster access to genetic resources, as well as the fair and equitable distribution of the benefits resulting from such access. The most important result has been the establishment, in October 2014, of The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS). In this field, Brazil, conscious of being one of the most mega-diverse countries with its abundant wealth in genetic and cultural resources, has been a pioneer in the implementation of an ABS mechanism by means of a Provisional Act that came into force in 2001.
This directive has allowed for access to genetic resources to be regulated and guaranteed that the benefits would be shared fairly between users and those who provide resources or contribute with associated traditional knowledge (ATK). In the over a decade since its enactment, the mechanism has led to some 1,000 authorizations and nearly 150 benefit-sharing agreements, with some very important lessons. For example, in 2011, a large Brazilian cosmetics company worked together with 32 indigenous communities representing 3,235 families in order to determine how to share their benefits. In cases where genetic resources were used, the distribution of monetary benefits was linked with the development and effective use of raw materials in the company’s products. The total income for these communities ascended to 10 million reales, of which 1.6 million derived from benefit sharing for the use of genetic resources and associated traditional knowledge.
With 14 years of experience, in addition to the critiques and contributions of the interested parties, it became clear that a legal framework with more modern and flexible processes was needed, one which could stimulate both scientific research and the development and sustainable economic use of Brazilian mega-biodiversity. Some references consider that more than 70% of plant-based medications have been created with the contribution of ATK. This demonstrates the potential for a bureaucracy-free market with appropriate benefit sharing, which will translate into substantial results for science and technology, together with the preservation of biodiversity.
Thus, after several years of public discussions and the search for a proper balance of interests, Brazil finally succeeded in approving a new law on ABS that will replace the Provisional Act starting in November 2015.
The law has a number of innovations. First, there is the creation of an electronic registry system for all research and scientific development requests which entail access to genetic resources and associated traditional knowledge (ATK). According to certain specialists involved in the deliberations surrounding the law, this system should streamline bureaucracy in the authorization processes, seen as a discouraging obstacle especially at the research stage. At the same time, the registry system will operate as an intelligent ABS control mechanism in Brazil, allowing for traceability in the use of all genetic resources and the component parts of associated traditional knowledge. Another novelty is the new participatory system for benefits obtained for access to genetic resources or ATK through the National Benefit Sharing Fund (FNRB, in Portuguese). The regulation of the law shall determine the ways in which the benefits will reach suppliers, who could receive benefits equivalent to up to one percent of annual net income deriving from marketable products based on national genetic resources or associated traditional knowledge. In certain cases, as in the use of traditional knowledge, the identified suppliers will be able to choose their preferred way of receiving the benefits corresponding to them.
The new law also provides for the creation of community protocols, which will be used to train traditional communities and empower them in their dialogue with whatever external agency that may be interested in their knowledge. This training will enhance their understanding of their rights and obligations and reinforce the importance of biodiversity preservation and sustainable use, in keeping with the principles of the Nagoya Protocol.
The result is a permanent national law which seeks to overcome the obstacles and bureaucracy of the prior directive and which, it is hoped, will stimulate new opportunities for access agreements and benefit sharing within a sustainable-use framework for these resources. In light of the fact that, in practice, the regulations emanating from the law must still be written in order for it to be fully implemented, what should be the most immediate regulatory priorities?
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