Newsletter Edition 43 - January 2023


COP15: biodiversity and intellectual property rights

The United Nations Biodiversity Conference (COP15) ended last December 19 in Montreal and resulted in the adoption of the “Kunming-Montreal Global Biodiversity Framework” (GBF), whose goal is to withstand the loss of biodiversity, restore ecosystems and protect indigenous rights. The plan includes protection, by 2030, of 30% of the planet and 30% of degraded ecosystems and proposals to increase funding for developing countries. Present at the central debates at COP15, the co-coordinator of ABPI’s Geographical Indications Commission, Luiz Ricardo Marinello, gives his impressions on some of the issues discussed at the event in this interview.


What is your assessment of the COP15 conclusions regarding traditional knowledge?

Luiz Marinello: COP15 delivered what it promised. After a wait of more than four years, marked by negotiations and tensions on several sides, the representatives of 193 countries approved an unprecedented global commitment to the maintenance and conservation of biological diversity called GBF (Global Biodiversity Framework). There were 23 targets for 2030 and four major targets/assumptions for 2050. Among the global targets for 2030, the following stand out 1. Conservation and effective management of at least 30% of the world’s land, inland waters, coastal areas, and oceans; 2. Have restoration completed or in progress for at least 30% of degraded terrestrial, inland, coastal and marine ecosystems; 3. Bring the loss of areas of high biodiversity importance close to zero; 4. Phase out or reform subsidies that harm biodiversity by at least US$500 billion annually; 5. Mobilize at least US$200 billion annually in domestic and international financing related to biodiversity from all sources – public and private; 6. Increase international financial flows from developed countries to developing countries to at least US$20 billion per year by 2025 and at least US$30 billion per year by 2030.

Regarding associated traditional knowledge (ATK), which is owned by indigenous peoples and traditional communities, decisions were taken with direct and indirect impacts. I believe that all measures that stop and reverse biodiversity losses (and there were several among the 23 targets resulting from the GBF) have indirect impacts on ATK as a logical consequence, since the more preserved forests, the greater the number of protected communities (and resulting ATK). Behold that the traditional peoples and communities are the ‘guardians of the forest’.

Which decisions will have direct impacts?

LRM: The following decisions will have a direct impact on ATK: a) opening of a working group (which will remain until COP16) to re-discuss Article eight (j) of the Convention on Biological Diversity so that they are in line with GBF priorities; b) Encouraging the parties to define, through their local legislation, a significant increase in efforts so that traditional peoples and communities have a voice and influence in the decisions to be taken, always respecting their customs, cosmocentric vision and values; c) possible measures to strengthen the knowledge of traditional peoples and communities about their rights and that they are prepared to influence public policies and decisions that affect them; d) encouraging parties to develop ‘focal points’ that relate to article eight (j) of the CBD; e) possible recognition of associated traditional knowledge so that the primary goals/assumptions for 2050 are met.

Is Brazilian legislation adequate to comply with target 13, listed in the final document of COP15, which provides that the gains obtained from biodiversity elements used by companies be shared with the place where they were extracted?

LRM: Partially. Brazilian legislation (Law 13,123/15 – Decree 8772/16) already provides criteria for benefit-sharing, whether monetary or non-monetary, in line with what was decided in the GBF, and especially for target 13. However, there must be harmonization between the provisions of the Nagoya Protocol (which entered into force in Brazil in 2021) and the legislation, which provides (unlike Nagoya) that the sharing of benefits occurs retroactively. In the article “Comments and recommendations to regulate the Nagoya Protocol in Brazil”, which I wrote jointly with Professors Bráulio Dias and Manuela Silva and published in ABPI Journal n° 171, we address this and other aspects that must be adopted by Brazilian legislation so that it is fully in line with the Nagoya Protocol.

How to reconcile research on genetic heritage as a value for society and the sharing of benefits?

LRM: Brazil is the most megadiverse country on the planet, so this is the question that we all must ask so that there is a broader debate on the subject and an advance in the best solutions. There is no way to explain that cities like Belém do Pará and Manaus, which are in the heart of the Amazon and hold a rich biodiversity combined with very advanced research laboratories, suffer from terrible basic sanitation and other indices of accentuated poverty. Benefit-sharing has some biases that may, in the short term, change this reality: the greater the amount of research on Brazilian biodiversity, the greater the innovation and launch of products, with the consequent sharing of benefits translating into greater resources for the traditional people and communities, preserving the forest; and the greater the amount of research on Brazilian biodiversity, the greater the possibility of finding new molecules for the pharmaceutical industry and of developing new herbal medicines. Other segments may also develop, such as agriculture, cosmetics, apparel, and even the automobile industry. This increase in R&D with biodiversity will promote substantial benefits to society, whether in terms of taxation, increased jobs, or even reduced pressure on the Unified Health System (SUS).

Did COP15 define any procedure to combat biopiracy?

LRM: It is important to remember that COP15 represents the Biennial Meeting held between the parties that are signatories to the Convention on Biological Diversity, as well as the Nagoya Protocol and Cartagena Protocol. Thus, the rules for respect to rights related to the access and sharing of benefits have already been defined in the treaties themselves, and the meetings aim to improve and reinforce them. The rules linked to benefit-sharing are planned, notably in the Nagoya Protocol, which defines, in short, that the provider countries establish their local rules (ABS – Access and Benefit-sharing) so that users can comply with them. The Nagoya system has been working within the expected, and the vaster problem involving the disrespect for the rights of local countries – both traditional knowledge and genetic heritage – for some time is the absence of rules on DSI (Digital Sequence Information).

What is the main discussion of the Working Group on DSI, and what is its implication regarding the original communities and IP rights?

LRM: In addition to the GBF, countries have decided that a multilateral mechanism will be created to share benefits by using digital sequence information (DSI), including a global fund. The initial idea – which will be discussed from now on – has a direct reflection in both patents and technology transfer, as the global fund will, at first, be fed by several financial resources from both use and eventual appropriation. The details of this mechanism will be discussed through a working group over the next two years to be completed at the upcoming parts conference (COP16).