Traditional BiodiversityRelated Knowledge and
Practices in Latin America
Siena- Italia Octubre de 2004
By Dra. Teodora Zamudio
University of Buenos Aires ~ Argentina
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.
A sui generis system for the protection
of the traditional knowledge
Goals & Purposes
 Identify the more adequate
characteristics for the protection,
in general terms:





Tools
 Identify the elements of the
system for a more efficient
protection
 Extension of the elements to be
People that could be reached:
protected (TBRK only – all TK)
needs and awareness
(significance)
 Requirement of the elements to be
protected (criteria & indicators)
Political & economical objectives
 Assignees – Holders (public,
Awareness and social
communal and private interests)
consensus about the need of
protection
Incidence
of the own
indigenous
right
 Extension
of the
rights (public
Related rights that could be systemsdominion)
affected
 Requirements for fair and
enforced negotiation (disposition
Market where that protection
and benefits distribution)
should be operative
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)
South
America
black
5%
others
10%
indigenous
13%
local
east indian
9%
35%
white
27%
maroons
1%
creole
3%
mulato
5%
mestizo
27%
Overview - regional issues
Central
America

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
indigenous
14%
others
2%
black
2%
white
18%
creole
3%
local
64%
mestizo
60%
Garifuna
1%
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.
Not all medicinal plants used
the Mamperikipini, (Fittonia sp.) is
according
employed to
by the
the current
Kofan and
knowledge
of indigenous
Siona-Secoya
(Ecuadoriangroups
are
native to
totreat
the area
of those
Amazon)
the headaches,
but the Machiguenga
groups.
Many species(Peruvian
that play
a rainforest)
significantknow
roleitinasnowadays
hallucinogen,
used remedies
in large
indigenous
herbal
amounts
part of the kamarampi
have
beenasintroduced
lately,
mixture in former generations
such as Mexican lime
before they gained knowledge in
(Rutaceae),
orange (Rutaceae),
the use of Psychotria
sp. for this
peach
(Prunus persica) and
purpose.
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
kamarampi session. Seri (tobacco) is an
integral part of Machiguenga ritual, the
term for shaman is seripegari, 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. Challenges
Introduction 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 TK
Capacity 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-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 TK
Human
Rights systems
Constituição
Federal
Identity
components do Brasil
da Republica
Federativa
Religious freedom components
Art. 225. (VII) (4°) A Floresta Amazônica brasileira, a Mata
Atlântica, a Serra do Mar, o Pantanal Mato-Grossense e a
Environmental
preservation
systems
Zona Costeira
são
patrimônioEnviron-Guardians
nacional, … of:
inclusive quanto
ao uso dos recursos naturais.→ Protected Areas
→ RAMSAR-Areas (birds migration)

Art. 231: So reconhecidos aos
indios … os direitos originários
sobre
terras que tradicionalmente
ocupam, ... (6°.) Sáo
Property
Rightas
systems
Intellectual property
nulos … a exploracáo
das riquezas naturais … ressalvado o
Usual IPRs ⇒ Patents
relevante interesse público da
Uniáo
⇒ Trademarks
⇒ Industrial design

Decreto 98830/90 y Medida provisoria
2126/11 (2001)
⇒ Model of utility
⇒ Copyright

O conhecimento tradicional
associado ao patrimônio
⇒ Breeders
Rights brasileiro
genético ... integra o patrimônio
cultural
Specific new
category
To be fitted
TraditionaleKnowledge

monopólio
daIPRs
União:
Ministério
daCiência
Tecnologia

Property System
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
↪ Textiles
For example, Panama register
 According to application
↪ Medicinal stuff and treatments
For example, India/Philippines
register
For example, Peru register
↪ Biodiversity related knowledge
wide-ranging Registers
Registers’ classification
Classes within the Category
 According to objectives or
uses

 According to resources

Medicine
 Environment preservation
For example, knowledge about:  Food
 Industrial exploitations:
 mining, forestry, harvest, etc
For example, knowledge on:
Plants
 Animals
 Microorganisms
 Minerals & metals
 Energy sources
The shaman and the visitors (an exercise)
imagine
a member
of an
Amazon tribe does not feel
Let know Let
yourusopinion
asthat
to what
is fair and
equitable.
well and requests the shaman’s medical services. The shaman,

Do you think the visitors’ activities violate the shaman’s rights?
after examining the patient, will go to his garden and collect

Dosome
you think
the shaman
an interest
in (ordifferent
rights upon)
any ofMixing
the
leaves,
seedshas
and
fruits from
plants.
following
(without
regard
to
the
practicalities
of
enforcing
those
rights):
those materials according to a method only he knows, he
1.
The botanist’s
company
exportstoseeds
harvested
in the
prepares
a potion
according
a recipe
of which
hejungle
is thetosole
the
US.
holder. While preparing the potion and, afterwards, while
administering
it tomight
the grows
patient
(according
a dosage
he
2.
The
company
plants
from the
seeds
collected
in will
Under existing intellectual property
lawbotanist’s
the shaman
be able
to make
theto
following
claims:
likewise
the shaman
to the
gods
of the
the jungleprescribe),
and sells seeds
producedprays
by those
plants
in the
US. forest
1.
the different plants from which
the shaman has
made thedance.
potion may
be
protected
under a
plant
and
a religious
He
may
also
inhale
3. provide
The performs
pharmaceutical
company
finds
an and
active
ingredient
inthe
the smoke
variety protection system,
the
plantsofare
new,
stable,
distinct
uniform;
of
the
leaves
a
magical
plant.
The
potion
will
be
served
and
potion
that
is
already
well-known,
although
not
currently
used
for
Would
your
answers
change
if
the
information
about
the
potion,
prayer,
2.
the potion (or the formula thereof)
can
the subject
matter ofdesigns
a patent, and
it is new, inventive
saved
in abe
vase
with
symbolic
shaman
will wear
the
ailment
under
question.
They
issued aprovided
USthe
patent
for that
and susceptible of industrialhis
application,
or
as
undisclosed
information;
ceremonial
garments
for $200
the healing.
In certain
cultures,
vase, etc.,
application
and after
spending
M on clinical
trials the
drug isthe
3.
the use and the dosage of the
potion
can
also
be
protected
by
a
patent,
under
the
laws
of
a
few that
shaman
is
not
seen
as
the
healer,
but
as
the
instrument
approved for use in the US.
countries
whichheld
makeinpatents
available
for
new
uses
of
substances
as
well
as
for
new
and
inventive
1.
were
common
by
many
or
most
of
the
members
of
the
community
conveys the healing from the gods to the patient.
therapeutic methods;4.
The graduate student publishes her thesis as a book.
rather
than
just
by
the shaman?
4.
the prayer, once fixed,
be copyrighted;
5. couldMichael
Flatley views the BBC documentary and includes some of
5.Whilethe
oncedeclared
fixed,
can
be protected
byby:
copyright-related
rights,
and
the
shaman - as
2. performance,
were
national
patrimony
of inthe
this
community
lives
performing
thisbeen
ceremony
the
shaman
is visited
the
shaman’s
dance
motions
hiscountry
new
show
‘Amazon
performer
can
be
accorded
the
right
to
authorize
the
fixation
of
the
performance;
Riverdance’.
 a botanist working
for a large company
which specializes in herbal remedies who collects a sample
in?
6.
containing
the potion can be patented or protected under a utility model certificate if it has
ofthe
thevase
seeds
and fruits,
6.
The
vase designer
takes
the basicunder
design and
magnifies
it into an
new and inventive
features;
if not, it can
be firm
protected
industrial
 a biochemist
working functional
for a multinational
pharmaceutical
who takes a an
sample
of thedesign
potion,system;
umbrella
stand.
7. a graduate
the designs
on the
vase who
and on
the garments
can
protected
by the prayers,
copyright or by the
student
linguist
records
the prayer
forbe
her
thesis oneither
shamanic
industrial design systems.
7.
The
fashion
designer
creates
a
handbag
containing
some of the
 a videographer who videotapes the shaman’s activities for a BBC documentary of shamanic rituals,
hieroglyphs
she
saw
on
the
robe.

What obstacles do you see to claiming protection under existing law?


 a vase designer employed by Crate and Barrel who sketches the vase, and lastly
claims
couldfrom
be made
what problems
claiming
or attempting to
Ifathe
fashion
designer
Ralph Lauren
who takes could
a fancyarise
to thefrom
shaman’s
robes.
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 YOU
Descargar

Traditional Biodiversity-Related Knowledge and …