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From WIPO to Vale do Ribeira and Back

Gabriela Balvedi Pimentel


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1From the way indigenous people manage their forests to their use of native plants for corporal and spiritual healing, indigenous practices have been attracting increasing attention of both academy and industry. Quinault Indian Nation’s ecological knowledge of river patterns in the US is providing vital data for the revitalizing of the Columbia River (Hansen 2018); neuroscientists in Spain are researching the health effects of the use of the Amazonian hallucinogenic brew ayahuasca (Hartman 2017); and, in Brazil, the company Natura Cosmetics is using plants that have long been used by local communities for producing “sustainable and socially responsible” cosmetic products (Miyata 2013, 5).

2Scientific and industrial research based on indigenous knowledges often leads to the granting of patents over elements of that knowledge and related biogenetic resources to industrial and research institutions. Indigenous patterns, designs and songs, are also being commodified and exchanged (Coombe 2017). There are many cases in which these are used for the creation of products commercialized by non-indigenous brands or international companies, frequently without the consent of the indigenous peoples that invented them in the first place (Jooste 2013; Walsh 2018).

3These processes of commodification and patenting have provoked internationally relevant disputes over authorship and ownership of collective intellectual productions manifested in indigenous knowledges. Still to this moment, however, there is no clear international legal framework to deal with such issues.

4Taking into account this gap in international legislation, in 2000 the World Intellectual Property Organization (WIPO) created an Intergovernmental Committee (IGC) to negotiate legal instruments to regulate the implementation of intellectual property rights over traditional knowledge.

5Through these processes, new property categories are being created in international law. At the same time, the category of traditional knowledge is also being built in the international sphere. Such categories are being constructed in discussions at an international organization, at the heart of International Geneva, far from the communities and peoples it refers to.

  • 1 Quilombolas and caiçaras are Brazilian traditional communities. A more detailed explanation about t (...)

6Simultaneously, in Vale do Ribeira, one of the largest reserves of the Atlantic Rainforest in Brazil, the commodification and patenting of indigenous knowledges have provoked similar conversations among quilombola and caiçara communities1 . As their traditional ways of living and transforming their surroundings have attracted the attention of many researchers, the question of what constitutes their traditional knowledge has gained importance.

7Despite being separated by the Atlantic Ocean and thousands of kilometers, these two places are connected by the same discussion. Narratives around the meaning of indigenous knowledges and about intellectual property rights over these knowledges are being constructed and negotiated both at WIPO’s IGC and among communities in Vale do Ribeira.

8It is from this context that my research questions emerge: how are the concepts of indigenous knowledge and intellectual property rights over indigenous knowledge being built in these two places and what are the points of articulation between them? In more conceptual terms, how does the process of creating a legal category that concerns indigenous and local peoples in the international realm unfold and what are the points of articulation between this and the correspondent category in the local realm?

9In the following chapters, I will proceed with an analysis that looks for connections and disconnections between the categories in production in both Vale do Ribeira and at WIPO’s IGC. In this first moment, however, I want to draw attention to some key underlying issues to approach this research question. The issues analyzed here, i.e., of the emergence of new property categories and the concept of indigenous knowledge in the international legal arena, appear along with a history of developments in global capitalism. The former denoting not an ethereal phenomenon, but a “grounded social formation”, whose determinations and abstractions are not absolute, but “always exceeded by the messy intractability of the concrete, the contingent” (Comaroff and Comaroff 2009, 23).

10In the following section, I will present some underlying points that are key to fully understanding my research questions. The next paragraphs will thus be dedicated to discussing the production of legal categories and the development of intellectual property.

Situating universals: taking a critical look at the realm of legal production

11The legal apparatus plays an important role in the expansion of power, through categorization and normalization, as well as through the legitimation of domination and dispossession. As Douzinas teaches, “relations of force and answers to the demands of power (…) are both carried out and disguised in legal forms” (2008, 7). An interesting example to illustrate this claim is that of colonial law. Both legislation and law enforcement had an important role in organizing colonial relations and modifying social relations as, along with other institutions of the colonial state, they transformed conceptions of time, space, work and property (Merry 1991, 891).

12Law has thus served as an important tool of control and homogenization, having a key role in spreading certain universal categories over distinct realities. An example of this is the proliferation of private property regimes to the detriment of other types of land use (e.g. collective use of territory). Especially in the realm of legislation around property, the depiction of law as abstract and universal has helped to cover its “ad hoc, violent and exceptional character” (Mitchell 2002, 57).

13At the same time, the legal arena has also been used as a place for contestation, through a counterhegemonic use of the legal apparatus (Lyra Filho 1982; De La Torre Rangel et al. 1990; De La Torre Rangel 2006). The greatest example of this has been articulated in the field of human rights, a universal discourse used as a key tool for the fight of the oppressed to access rights that have been recognized as inherent to all human beings.

14Such opposing uses of law also entail paradoxical effects. When those excluded from universal rights protest their exclusion, this protest itself has a twofold effect: it extends the reach of the forms of power they protest, even as it gives voice to their anger and hope” (Tsing 2011, 9). In other words, using a rights discourse may allow for the articulation and achievement of some revindications by the oppressed, but articulating these revindications in a legal language also leads to the extension of the reach of the very power they are fighting against.

15The great intensification in the reliance on “legal ways and means” has been linked directly to the rise of neoliberalism (Comaroff and Comaroff 2009, 54). Among the symptoms of this expansion are not only the spread of human rights advocacy but also the entrance of more and more domains of human life in the juridical arena (Comaroff and Comaroff 2009).

16It is here that the scope of this research enters the play. As mentioned above, the subject of intellectual property rights over indigenous knowledges involves disputes regarding authorship and ownership of collective intellectual productions that are manifested in indigenous knowledges and indigenous cultural expressions. Such disputes have a strong political relevance, as places of questioning ways of understanding knowledge production and human relations with nature, as well as notions of property.

17These highly political subjects are represented in the judicial realm in terms of property rights. Such a phenomenon represents not only the reduction of domains of biological and cultural being to alienable rights but also the judicialization of political and social life (Comaroff and Comaroff 2009). When these very political issues enter the legal realm and start to be enounced through a language of rights, their political dimensions become blurred.

18Especially in the highly specialized field of the international intellectual property regime, regarded as extremely technical and specialized even for lawyers, the use of an expertise discourse serves the objective of depicting the debate as technical as opposed to political (Mitchell 2002). When the issue of the commodification of the “intangible goods of the mind” (Boyle 2002) is transferred to a language of universal rights, this naturalized depiction makes social inequality and power asymmetries disappear.

19This is why, in my research question, I have decided not to frame the problem in terms of rights. I want us to start from the idea that intellectual property is not a natural right, but a legal protection for a property category that can be located in time and space. Not framing the question in a rights language helps us reach the deep political issues that are at stake.

Intellectual property and the law

20The expansion of intellectual property regimes across the globe has been identified by Comaroff and Comaroff (2009, 54) as a central site of intensifying reliance on the legal apparatus. International organizations such as WIPO have an important role in propagating these new models, as they work to advance standards to protect intellectual property rights worldwide, trying to build an intellectual property rights system that is similar in different national states.

21Legislation and law enforcement play a “key role in transposing neoliberal agendas to the national and local level” (Randeria 2007, 2). The efforts to bring uniformity to the protection of intellectual property rights worldwide as well as to expand intellectual property rights over biogenetic resources are situated in this context. International intellectual property law has, therefore, a key role in standardizing the tools for protection and enforcement of intellectual property rights across the globe.

22Seshia and Scoones (2003, 24) highlight in their analysis of agricultural policies that in this biotechnological era, the state’s role is no longer to direct policy and shape development, but to provide a legal, financial and regulatory environment amenable to research and development led by private actors. The guarantee and enforcement of intellectual property rights are key examples of this, as they are supposed to foster creativity and research, protecting the investments of companies that are at the forefront of technological development.

23The role of law in this new movement to enclose knowledge is central: national and international legislation that inaugurate novel property rights, this time over intangible productions of the mind, enable new enclosures (Boyle 2002). In this way, new possibilities of accumulation are enabled through the enclosure of knowledge production.


24Having looked at this issue from a distance, I will now enter the specificities of this case and proceed with a more detailed gaze. To do so, in the first chapter I will situate the study by considering the fields of this research, as well as the methodological choices made. In the second chapter, the theoretical framework will be laid out, presenting the relevant discussion on the literature as well as the four concepts that are key for this work: indigeneity as a relational context, articulation, dispossession and friction.

25The third chapter will look at how indigeneity is articulated both at WIPO and in Vale do Ribeira. The fourth chapter will discuss the narratives around the concept of indigenous knowledges in these two places, looking for connections and disconnections between them through an analysis of the characteristics evoked in each field. The fifth chapter will look at the narratives around the protection of indigenous knowledge. While at WIPO a narrative of legal protection is deployed, using the concept of intellectual property rights, in Vale do Ribeira a more political and collective narrative of protection is constructed.

26Each one of these three chapters has a closing section in which the chapter’s findings are discussed. The conclusion will unite these chapter discussions and provide a final closing for this work.


1 Quilombolas and caiçaras are Brazilian traditional communities. A more detailed explanation about these actors can be found in Chapter III, Sections 2.2 and 2.3, respectively.


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