Biotechnology firms, pharmaceutical corporations, laboratories and university researchers are scouring the Amazon rainforest in a profit-driven pursuit. Seeking the Amazon’s “green gold,” they are turning to local indigenous groups to gain access to thousands of years of accumulated secret potions and traditional remedies. There is a race against time to explore for the potential “holy grail” for medicinal compounds, and to protect their discovery before others beat them to the patent office. The result of this frenzy is a veritable jurisdiction abyss where often conflictive legal systems have been mobilized in hopes of imposing some order on an intrinsically troubling situation. In the ever-changing debate over patent laws, legislation often disputatiously intersects with the self-interests of developing countries, multinationals and indigenous groups.
A Vast Green World
The Amazon rainforest covers over 1.2 billion acres, or two-fifths of the South American continent. It stretches across Brazil, Venezuela, Colombia and the eastern Andean region of Ecuador and Peru. Many pharmaceutical specialists believe that this vast forest could hold the cure to many otherwise incurable diseases such as AIDS, cancer, leukemia and herpes. Raintree Nutrition Inc., which concentrates on tropical rainforest botanical products, estimates that the U.S. National Cancer Institute has identified 3000 plants that indicate some sort of promising agents against cancer cells, of which 70 percent of them are found in the rainforest. Furthermore, “twenty-five percent of the active ingredients in today’s cancer-fighting drugs come from organisms found only in the rainforest.”
Because it possesses by far the largest portion of the South American rainforest, Brazil undoubtedly contains the greatest variety of biological and genetic resources in the world. Like officials of other developing countries, Brazilian authorities often have had to struggle under the weight of an astronomical public debt and have been prisoners to the whims of a volatile local economy which responds to movements in the international market. Historically, the Amazon held little of economic importance in this fight save for the tangible income it generated by the sale of forest rights to international lumber companies. Now, however, the Brazilian government is slowly realizing the importance of protecting and promoting a more sustainable development model in the Amazon.
Glenn Wiser, attorney for the Center for International and Environmental Law says that Brazil is “developing a domestic biotechnology industry so that it may isolate pharmaceutical chemicals and compounds within the country, thus gaining greater profit.” The government is currently formulating the Amazon Biotechnology Center in Manaus, capital of Amazonas state. With 22 laboratories, it is expected to open this April and is projected to attract international investors as well as commercial producers. Meanwhile, Brazilian universities, as well as national and international pharmaceutical companies, are seeking to sign agreements with indigenous groups in order to have access to local plant materials.
The Rise of Bioprospectors
As consumer health awareness continues to grow, buyers are taking an intensifying interest in medical substances made from rainforest-derived compounds. The world is now seeing the rise of “bioprospectors” who are addressing their Amazonian quests to satisfy consumer demands for wonder plants, microorganisms and animals by systematically assaying them for commercial use. Despairingly referred to as “biopirates,” such firms often exploit the collective knowledge of indigenous people who very often naively share their information freely, or for meager or no compensation. Outside specialists then screen selected specimens in order to isolate “genetic and biochemical resources” that conceivably might be the basis for new pharmaceutical drugs. These individuals sometimes try to pass off the knowledge that they have gained as their own so that they may pursue international recognition and patent protection of a particular rainforest compound under international arrangements.
Many of Brazil’s 227 different indigenous ethnicities who speak 170 different languages, have belatedly decided to take action. Though communication among the native community is difficult, many previously isolated tribal communities are banding together and appealing to international, as well as national legal bodies for assistance in protecting their rights. These institutions include the Inter-American Development Bank, the World Bank, the World Intellectual Property Organization, the International Labor Organization, the Organization of American States and the United Nations. Such bodies are being called upon to set up legal codes to protect their tribal units’ collective inheritance from the “biopirates.”
As indigenous groups enter the patent race and encounter a number of confounding trajectories full of red tape, shifting legislation and puzzling incongruities, local and regional bodies are committing themselves to helping them in their quest to legitimate the authenticity of their right to compensation for their bio-knowledge. Since Indian communities still have only rudimentary access to legal and financial advice compared to their big-business counterparts, taking their case before a courtroom represents an almost heroic struggle. In the face of such adversities, nevertheless, they are winning some important battles. For example, the mapping of about 150 medicinal plants done by the Federal University of São Paulo, with the knowledge of the Kraho Indians, could provide that tribe with one of the first patents in the medical field. Also, the Permanent Council of the OAS already has drafted a proposal called the American Declaration on the Rights of Indigenous people in which 90 community leaders participated in open sessions to help shape it.
Dr. Osvaldo Kreimer, special advisor to the Inter-American Commission on Human Rights, explains that the initiative is a “general statement of policy intention that the countries will hopefully follow.” Dr. Kreimer maintained that “once approved, [the Declaration] will be a binding policy statement.” Sessions were often polemical because Indians, who have developed knowledge about medicinal plants over the centuries, cannot easily conceive of a legal system that would protect such knowledge for a mere 20 years, after which it would become part of the public domain. What has come out of the sessions, however, is Article XX, which specifically recognizes indigenous “cultural, artistic, spiritual, technological and scientific heritage” as intellectual property. So far, the proposed declaration already has been cited by high juridical bodies to support pro-indigenous court decisions in a number of Latin American countries.
The Conflict of Law
In the international arena, patent laws in different countries generate predictably conflicting interpretations, a problem that the Geneva-based World Intellectual Property Organization (WIPO) is trying to address by encouraging cooperation among member states. “Plant or animal varieties, discoveries of natural substances, commercial methods, or methods for medical treatment,” it says, are not patentable in every member country. The WIPO, a specialized agency of the United Nations, which is associated with the WTO, has also begun to recognize Indigenous rights. Applicants are free to invoke the provisions of WIPO’s Patent Cooperation Treaty, and they already can file an application for patent protection for 20 years in many member states. Under WIPO, the subject to be patented “must be of practical use; it must show an element of novelty…which is not known in the body of existing knowledge,” and must show “an inventive step.”
WIPO, which now boasts 178 members (including Brazil and US), began researching and analyzing “traditional knowledge and folklore protection “in 1998. Dubbed “TK,” the proposed traditional knowledge category tries to assist native peoples by allowing them a legal recourse under which they can patent their intimate knowledge of medicinal plants. As of yet, TK is not recognized in the U.S. or many other countries, but a number of NGOs, international legal institutions and advocate groups are intensely lobbying in favor of the concept based on the thesis that the traditional knowledge of indigenous communities should be included in the international legal code.
While such initiatives are often non-binding prescriptions to temporarily resolve the confusion over patent laws and the recognition of traditional knowledge, they reflect undeniable progress in recognizing the importance of traditional Indian medicine. Ultimately, the equal partnership between indigenous groups and Western science could enhance prospects for the future curing of presently incurable diseases, while at the same time respecting the principle that fair compensation for the use of such properties be recognized.
The Council on Hemispheric Affairs, founded in 1975, is an independent, non-profit, non-partisan, tax-exempt research and information organization. It has been described on the Senate floor as being “one of the nation’s most respected bodies of scholars and policy makers.”