1In the last chapter, I analyzed processes of construction of the meaning of indigenous knowledge at both WIPO and Vale do Ribeira. I will now look at the construction of different narratives of protection in these two places. At WIPO, protection is framed in the language of intellectual property rights, through the voices of both member states’ representatives and indigenous groups that “seem ever more ready to put intellectual property regimes to work in the effort to secure the value vested in difference – and, in so doing, to render cultural identity into the language of copyright, sovereignty and patent” (Comaroff and Comaroff 2009, 56). At Vale do Ribeira, however, protection of indigenous knowledge appears not in terms of property rights, but in terms of community protocols.

2This chapter aims to show how the idea of protection appears and in what terms it is enunciated. For Vale do Ribeira, this will be done through the analysis of the narratives around four cases of bioprospecting/biopiracy in the region, which were explained to me during interviews. For WIPO, the analysis will be informed by interviews, as well as official documents and statements during IGC sessions.

1. Biopiracy in Vale do Ribeira

3Vale do Ribeira is an area that has attracted national and international capital’s interest due to its high concentration of natural resources that have not been exploited for commercial purposes. This protection is the achievement of the collective use of land by quilombola communities. The effort to expand the frontiers of original accumulation in Vale do Ribeira not only comes from mining companies and agribusiness already present in the region but also is strengthened by mechanisms of financialization of nature, by recently approved projects for the privatization of the park administration, as well as by the now-dismissed tentative plans for the construction of dams.

4But it is not only material goods that have raised the interest of foreign actors. Quilombola and caiçara knowledge, especially knowledge associated with genetic resources, have also raised external interest in the region. During interviews and informal conversations, my interlocutors recalled innumerable cases of researchers interested in learning more about Vale do Ribeira, the community’s ways of living and their traditional practices. However, often they did not provide the community with any return from their research (e.g. the community did not have access to any publication that originated from the research). Fernanda, for example, affirmed she has mapped over seventy research papers about the region of Juréia.1 From these, far too few have been presented to the community.

5Learning about these cases was not only relevant to documenting what has been happening at Vale do Ribeira, but also to getting a clearer understanding of the influence biopiracy and knowledge misappropriation have in the region. From the cases mentioned, four stood out as the most relevant. In the following paragraphs, I will tell these stories.

1.1 Natura

6The Brazilian multinational cosmetic company Natura & Co.,2 founded in 1969, presents itself as a relevant agent in the preservation of Brazilian biodiversity and emphasizes its social responsibility towards extractive communities as a strategy to solidify a positive institutional image (Tanure and Patrus 2011 apud Miyata 2013, 5). One specific line of the company, Natura Ekos, is presented as “a range of body care products and perfumes directly inspired by the ancestral traditions of the Brazilian population” (Natura Brasil 2019).

7At the beginning of the 2000s, Natura became interested in Vale do Ribeira and the knowledges held by quilombola communities of the region. The company contacted professor Livio, from the Paulista State University (Unesp), who had already conducted studies with quilombola communities of Vale do Ribeira, aiming to conduct an ethnobotanical mapping of the plants used by quilombola communities. They wanted to map all plants that could be of interest for the production of cosmetic products and perfumes. Natura affirmed they would proceed with an “equitable and fair sharing of benefits” with the studied communities. In “industry terms”, this meant a percentile of around 0.5 to 5% of the net revenue derived from the commercialization of products derived from the plants covered by the contract.3

8Prof. Livio and his team began the work in early 2003 and visited five communities in the region of Iporanga, which at first were open to participating in the project.4 Orlando, a quilombola leader, was directly contacted by Prof. Livio’s team as he was the president of his community’s association at the time. Orlando explained that the team was interested in getting to know more about their knowledge of both medicinal and cosmetic plants. The team offered them a truck or a tractor as a means of payment for the knowledge exchanged. In Prof. Livio’s account of the story, what happened was the opposite: the communities are the ones who asked for things like trucks, boats or assistance to get the installation of basic sanitation system in the communities.

9Natura proposed to sign a contract directly with each community5 and not with an association that represented different communities.6 During the conversation with Natura, Orlando understood that sharing the community’s knowledge with the company could lead to the granting of patents, a serious issue that needed further evaluation. In his words “we would no longer be the owners of this knowledge; it would be exclusive to them”. That is why he searched for juridical assistance.

10Orlando contacted Dr. Michelle and Dr. Susana, both nuns and lawyers, who have worked together with quilombola communities at Vale since the beginning of their struggle against the construction of the dams in their territory.7 These women are also responsible for assisting Vale do Ribeira’s quilombola communities to get the recognition of their traditional land and are therefore regarded by the communities as key allies.8

11According to Orlando, Dr. Michelle and Dr. Susana called attention to the fact that many quilombola communities of Vale share the same knowledge, and therefore that it could be problematic if only some of them engaged in a contract with Natura. Dr. Michelle affirmed that “at first they wanted to get a boat”, “people had no idea of the value of their knowledge”. According to her, “a large part of our work was to make people aware that, even if it is an immaterial good, it has a high financial value, and they should protect it”.

12Since then, a larger discussion among Vale do Ribeira quilombola communities themselves and also between quilombolas, allies, Prof. Livio’s team and Natura began. Once the communities started to have juridical assistance, the conversation shifted to having a more serious character, because issues such as benefit-sharing and payments for accessing the knowledge entered the agenda.9

13“After the discussion started, we realized that our knowledge reduces a lot…the company gains in time. Just telling what they should not do with the plant, they already gain a lot of time”.10 For Orlando, it was important to discuss the issue among different quilombola communities since “when you start discussing in a group you discuss it well, things become clearer, you seek more information”.

14Indeed, through the analysis of the minutes of meetings11 and contract drafts,12 it is clear that there was a meaningful development in the terms of negotiation, as well as in the draft contracts. While the first contract is rawer in terms of defining delimitations to exclusive rights and benefit-sharing, the following ones are more nuanced about these issues.

15Even though the negotiations proceeded for some months, problems appeared from both sides which led to the contract never being signed. On one side, after conversation and deliberation, the communities unanimously decided not to proceed with the project. “It was a group decision, we realized selling knowledge is not that simple, especially when we are talking about patents and not being able to use the knowledge anymore, not holding the knowledge anymore”.13

16At the same time, Natura decided not to continue with the project. After confirming with Prof. Livio that there was no clear difference between the knowledge of people who live inside or outside conservation units and that different communities may share the same type of knowledge, Natura cancelled the contract unilaterally.14

17Indeed, it was hard to meet the exclusivity demanded by the juridical team of Natura. “The process of recognition of (quilombola) communities had started ten years before, there was no way we could promise other communities did not share the same knowledge”.15

18This case was the first time in which Vale do Ribeira quilombola communities discussed issues related to the granting of patents over their knowledge. For Orlando, “it is already a precedent that we opened: when it comes to things about knowledge and patents we need to discuss together, so the community already knows how it works. We don’t discuss these issues so often, but when we need, then we discuss”.

19Vale do Ribeira’s communities had to become well organized because there are many conflicting interests in the region, and thus it “is not easy to live there”. “So, we have this great political advantage, the communities in Vale do Ribeira are well articulated. We discuss a lot together; we create a lot of things together. So, when we have a problem, we need to discuss it together”.16 The high level of political articulation of Vale do Ribeira quilombola communities was important in this case to guarantee that communities could unite and decide together about whether or not to engage in a contractual relationship regarding their traditional knowledge.

Not with quilombola communities…but anyways still present in Vale do Ribeira

20Natura decided not to proceed with the contracts with Vale do Ribeira quilombola communities and therefore gave up on their idea of making a Natura Ekos collection based on traditional quilombola knowledge. Nevertheless, this did not mean that Natura gave up working in the region of Vale do Ribeira.

21In 2004, José, who lives with his six children in a small property near Barra do Turvo, the same municipality in which Quilombo Ribeirão Grande is located, signed his first contract with Natura. José is a 70-year-old black man, whose father comes from Ribeirão de Cima, a region near the Ribeira River and right between the states of São Paulo and Paraná. José told me he does not have quilombola descent. In his words, he is a matuto do sertão – someone who “was born in the countryside, did not go to school, who only studied the tradition of the parents”.

22Since signing the contract, he has been supplying the company with dried plants. As he mentioned, normally each contract has a duration of three years, and for each plant, a new contract is made. I asked José if he has a lawyer to help him with the contracts and he said this would not be necessary because Natura has “technical personnel in who you can trust, when we need, they make a contract and present it for us to read, explain it to us and give us some time for us to evaluate if everything is ok with the contract. They have a very solid work, they do not trick anyone”.

23Some plants are only available two times a year, so this type of contract does not guarantee him a monthly revenue. Therefore, José and his family also rely on subsistence agriculture to avoid spending money on purchasing food.

24According to José, they have already had contracts for the supply of three different plants: pariparoba (Pothomorphe umbellata), maracuja-doce (Passiflora alata) and erva-de-macuco (also known as guaçatonga, Casearia sylvestris). Natura technicians normally come with a list of plants in which they are interested but, as José explained, “when there is a plant that they do not know yet, they ask for permission to research this one as well”. “They ask what we use the plant for, if it is used for something traditional, and then we can negotiate to supply that plant during the research. After this research, they will decide if the plant is approved for something or not. If the plant has no value for them, then it is not used”.

25Natura technicians did the georeferencing of José’s property and they come every year to evaluate the conditions of the plants on his property. As he explained, he only has plants that are native from the Atlantic Rainforest, but the quantities of the plants on his property may vary according to what has been required in the market. He and his family collect and dry the plants, selling them for around USD 3/kilogram.

1.2 The corn case

26This case was shared with me by Dr. Michelle and Dr. Susana and was also mentioned by two members of quilombola communities, Orlando and Ulisses. Like the Natura case, it was also reported to have happened in the early 2000s, although no mention of a specific year was made.

27I contacted a leader from the concerned quilombola community, Bombas, and asked if he would be interested in participating in this study. He explained that this type of decision is taken collectively by the community and therefore they would have to discuss the subject in a meeting. After discussing this proposition, they decided not to participate in my research, because they had other priorities at the time. Therefore, the case presented in the following lines has the limitation of not representing the perspective of the affected community.

28As my interlocutors explained, this case happened in Bombas, the quilombola community that is hardest to access in the entire region of Vale do Ribeira (it is only possible to reach it after a three-hour hike uphill). At Bombas, they produce a specific type of creole corn. One day, when some community members were in the city selling dry corn, people from outside the community bought some of it, not specifying that it was for anything but personal consumption. Sometime after that, the community discovered the people who bought the corn were researchers and that they had applied for a patent over the creole corn.

29As Dr. Michelle stressed, they only got to know about this case through their networks because, at the time, a member of an NGO that works closely with Vale do Ribeira’s quilombola communities was also a member of the council responsible for analyzing requests of patents over biogenetic resources (CGEN). As she informed them, this request entered CGEN without any mention of the quilombola origins of the corn seeds. Dr. Michelle and other allies managed to stop the process at CGEN and after that, Dr. Michelle said, they “started to talk with the communities about the value of their seeds, and this grew up to the point where we created the seeds exchange fair”. She was referring to the “Traditional Seeds and Seedlings Exchange Fair of the Quilombola Communities of Vale do Ribeira”. This two-day event, organized by quilombola communities and partners (such as ISA, EAACONE, and state bodies such as ITESP and Fundação Florestal), “celebrates the importance of traditional agricultural systems and the preservation of the quilombola culture” while promoting the exchange of creole seeds and seedlings (ISA 2018).

30Despite having tried to access information about this case on CGEN’s website, I was unable to find information on it. This lack of available information is likely because the communities managed to stop the patent register process in CGEN.

1.3 Erva-baleeira

31The third case is related to erva-baleeira (Cordia verbenacea), a medicinal plant with strong anti-inflammatory properties, widely used by traditional communities at Vale do Ribeira, especially caiçaras. According to one of my interlocutors17 and public sources (Ereno 2005; Mioto 2010; ANI 2019), one of the founders of the Brazilian pharmaceutical company Aché often goes to a beach house in the region of Juréia, home to many caiçara communities. One day he was playing football with his friends in the garden and injured his foot. The housekeeper, a local caiçara man, said he knew a plant that could help with the injury and gave him a medicine made of erva-baleeira (a garrafada). Because the medicine worked well, he decided to conduct laboratory research on the plant.

32Between 1998 and 2004, research was conducted to isolate the active-principles of erva-baleeira (Lima 2013, 197). This led to the production of Acheflan, the first medicine completely produced in Brazil, through a partnership between Aché and public universities (Ereno 2005), as well as to the protocol and granting of a patent for Aché. Although it is explicitly recognized that the medicine derives from traditional caiçara knowledge of the coast of the state of São Paulo (Ereno 2005; Sugimoto 2005), Denis and Fernanda explained that the whole process was done without any agreement with the caiçara communities. They only came to know about this case years later, when it was evaluated by CGEN.

33There was a dispute between the Brazilian State and Aché, as the former did not demand the authorization nor did it sign a benefit-sharing contract for the commercial exploitation of erva-baleeira (Thomas 2015, 54; Moreau 2011, 74). Aché filed a writ of mandamus against the Brazilian State to guarantee that the launch of Acheflan was completed before the final evaluation of CGEN and was successful (Mariot 2010). The product became a market leader in its category (Mariot 2010).

34Again, as had happened in the Corn case, caiçaras only found out about this case because of a warning received by a person that had more information about CGEN’s discussions. Denis affirmed that the company had to pay a condescendingly minuscule amount in royalties to the Brazilian State (something around CHF 3,000). I was unable to find any other source that confirms this information. In any case, caiçaras never received any share of the benefits.

1.4 A researcher in Barra do Ribeira

35Another relevant case for my analysis was shared by the caiçara leaders Denis and Fernanda. In the 1990s, a biologist came to the region to conduct her PhD studies. She aimed at cataloguing the plants of the region of Juréia. The researcher collected a lot of information from a religious leader, who had a wide knowledge of the medicinal plants in the region.18 For a certain period, Denis worked as the researcher’s guide and helped her in exchange for a small monetary compensation. They visited many communities and collected several samples of plants and flowers: “We gave a lot of information on how to use the plants, how many you need, if you need to put salt, water”, also “if you can make a tea, if what is useful is the flower, the leaf, the root.”19

36According to Denis, she catalogued many plants but by the end of the research, she was pushed by the administration of the Conservation Unit in the same territory to stop counting on Denis’ guidance, otherwise, they would not authorize her to proceed with the research. Denis understood this as a way for the administration to get back at him, because he was “fighting for the rights of traditional communities and against the Conservation Unit”.20 Since then, the researcher never talked to Denis again and never provided any access to the content of the research. Currently, Denis and Fernanda are trying to access this research and trying to contact her to gather more information about the material she collected.

1.5 Protocols as tools for “self-protection”

37The four cases described above show episodes of bioprospecting and misappropriation of traditional knowledge that happened in Vale do Ribeira. Some elements of these cases provide relevant insights into the processes they have triggered.

38On the one hand, the strong collective organization of quilombola communities of Vale do Ribeira made them question what had first been proposed by Natura and Unesp’s researchers. They deemed it essential to discuss the problem communally, as they understand their knowledge has a collective nature and making a contract with the company would entail meaningful changes to communities’ livelihoods. At the same time, due to the relevance of the issue, they understood it was important to contact other partners in their network and seek juridical assistance.

39Through these actions, Vale do Ribeira’s quilombolas collectively discussed an issue that was new to them, namely the potential patenting of elements of their knowledge system, carefully evaluating the situation to understand what was at stake. In partnership with the lawyers that offered them juridical assistance, they were able to negotiate the terms in which an eventual contractual relationship with Natura would be agreed to. Even if in the end both parties decided it was not worthwhile to continue with this project, they both had the chance to carefully discuss this highly complex issue.

40Quilombolas’ collective organization and engagement with other partners was essential for them to dispute the terms of the contract. It also allowed them to form a collective response to such issues, deciding, as Orlando explained, that any questions regarding patents and quilombola knowledge should be collectively discussed.

41José, on the other hand, lacking juridical assistance and also believing he does not need to discuss his contractual relation with Natura, relies completely on the terms set by the company’s legal team to establish their contractual relationship. Since he is not part of a broader collective bounded by identity ties, such as quilombolas, José took his decision individually and did not see the need to seek further assistance regarding contractual terms.

42The corn and the erva-baleeira cases demonstrate the relevance of quilombolas’ and caiçaras’ political articulation with actors at the regional and national level. It was only because of this articulation that they learned about the misappropriation of elements of their knowledge systems. In both cases, people who were close to the communities informed them about the cases, bringing information that would otherwise be inaccessible to quilombolas and caiçaras. In the corn case, they still had the time to intervene and managed to stop the process at CGEN, preventing the patenting of their creole corn seed. In the erva-baleeira case, even if they did not have the chance to intervene in the process, they now have the possibility of producing their narrative around the situation.

43In the case of the researcher at Barra do Ribeira, as in many other cases, the communities felt their privacy violated. They agreed to participate in the research, but never saw the result of their participation. The knowledge produced about them was never shared with them.

Community protocols

44In the aftermath of these cases, both quilombolas and caiçaras sought ways to regulate access to their knowledges. The communities started to develop community protocols which serve as “mechanisms of self-protection”.21 These protocols determine how a researcher should proceed in order to do their study with the communities and aim at regulating access to the community’s knowledge.

45Representatives from the quilombola communities of Porto Velho, Ivaporunduva and São Pedro affirmed that they have these protocols. Denis and Fernanda affirmed that caiçaras are also in the process of discussing and implementing protocols and that the Vale do Ribeira Traditional Communities’ Forum is also discussing the issue.

46I was myself subject to some of these protocols. As I mentioned earlier, I was unable to interview quilombolas from Bombas because they understood the research was not relevant to them at that moment. A similar situation happened at Ivaporunduva, as already explained in Chapter I. Unfortunately, there was no time for the community to convene an assembly and decide whether or not to participate in my research while I was still there, because all the community’s time was directed to the organization of the CONAQ meeting. Nevertheless, Ulisses agreed to talk to me, but in his position as lawyer and member of CONAQ.

47Ulisses explained that another relevant element for Ivaporunduva to decide to produce community protocols was his participation in the discussions for the CBD. As he took part in the discussions on traditional knowledge connected to genetic resources, he realized: “we will be stolen, we need to protect ourselves”.22 He brought this issue back to the community and they decided to develop this community protocol.

48In this same direction, Denis affirmed that after the new Brazilian legislation on access to knowledge related to biogenetic resources was edited, “the rights of traditional communities were made much more fragile, it became easier to have access to anything related to traditional knowledge”. That is when other communities in Brazil also started to develop their own protocols, on which caiçaras are basing the production of their own. In this sense, the participation of Denis as a delegate at the National Council of Traditional Communities and Peoples was essential. His participation in this forum “was an important reinforcement in the level of information they can access. From the moment he went for discussions at the national level with other communities, other segments, he started to bring a level of information we did not have in the local level before”.23

49By analyzing these cases, we can notice that Vale do Ribeira’s traditional communities initiative to produce instruments to protect their knowledge appears in a response to (i) episodes of biopiracy and misappropriation of their knowledge; and (ii) the participation of community leaders in national and international spheres of discussion with other traditional communities and indigenous peoples.

50The creation of a response to biopiracy in Vale do Ribeira is thus deeply linked to the articulation of quilombolas and caiçaras around identity markers. On the one hand, quilombolas’ and caiçaras’ perception of knowledge as collective is deeply linked to their identification as participants of a group united by the same cultural identity. As such, quilombola or caiçara knowledge cannot be traced to one individual. It is recognized as being part of a collective knowledge system, which belongs to the community as a whole. As such, decisions about the deployment of this knowledge cannot be taken by one or a few individuals but only by the entire quilombola or caiçara community. On the other hand, the enunciation of their identity as traditional communities and the political articulations made possible by this enunciation enabled interactions with other traditional communities and indigenous peoples. During these encounters, local community leaders had access to experiences from other community leaders, which drew attention to the problem of knowledge misappropriation and exchanged good practices on the protection of traditional knowledge.

51The communities did not seek, however, any instruments of patenting of their knowledges. Nevertheless, both quilombolas and caiçaras sought instruments of recognition of their cultural heritage: the former, of their agricultural system, the latter, of their musical and dance style, the fandango.

1.6. Sharing traditional knowledge – shifting boundaries within and around Vale do Ribeira’s communities

52The impact of the cases explained in the sections above did not lead only to the decision to produce protocols for research. These cases have also influenced the boundaries related to the sharing of traditional knowledge in Vale do Ribeira. While the boundaries between traditional communities in Vale do Ribeira were lowered, approximating them and incentivizing the sharing of knowledge between different communities, the barriers to share knowledge to people who are not part of the traditional communities were reinforced through the adoption of community protocols.

53Neire, for example, justifies and incentivizes forums of knowledge sharing among communities, such as the fair for sharing creole seeds. She affirmed that “who has knowledge, has power. If the [traditional] communities have knowledge and share that amongst themselves, they are all empowered. Now, if one has knowledge and keeps it for itself…it can exert power over the others”.

54Denis, the caiçara leader I spoke with, highlighted that many traditional communities share similar knowledge, especially when it comes to healing practices (e.g. benzimento or garrafada). Also, when asking about differences between the knowledge of different quilombolas communities in Vale, I often received the same answer: although there are some specificities from one quilombo to the other, their knowledge is mainly shared. Furthermore, during my time in the field I witnessed several examples of people from different communities sharing, for example, knowledge about the use of medicinal plants, among other things. Knowledge around techniques for political organization is also constantly being produced and shared, through political forums such as the CONAQ state meeting or the Traditional Communities Forum.

55On the other hand, special protection measures are being taken since the cases reported in the previous section occurred. These episodes have caused a shift in the way knowledge sharing with people outside the community is seen. A good example of this is seen in the rules community tourist guides have developed in Ivaporunduva. In an informal conversation, Ulisses explained that community guides are only allowed to tell tourists about traditionally used plants about which information is already in the public domain.

56Another common practice is that people deny that they have a specific knowledge if someone from outside the community asks them about it. In an informal conversation, Neire’s mother told me she had no idea about the use of medicinal plants or about other healing techniques (e.g. benzimento). However, Neire explained that her mom does hold this knowledge, but only performs it for people of the community. Orlando affirmed they are more open towards other quilombola communities, but not with external people.

57This demonstrates a shift in the boundaries of knowledge sharing. While it became more common and desirable to share knowledge among traditional communities, the members of these communities are more cautious about sharing their knowledge with outsiders.

2.  Intellectual property rights and traditional knowledge: proprietary narratives of protection

58Based on fieldwork conducted at IGCs 37 to 39, as well as on interviews, official documents and in the bibliography produced around the forum, this section presents the main parameters that frame the discussion at the IGC, as well as the positions that resulted from the forum.

59For this, I analyzed the discourses of different actors at WIPO during IGCs 37 to 39, as well as interviews with interlocutors. I coded these in the software NVivo and looked at patterns to cluster them in the approaches proposed in the literature review. Furthermore, I also coded elements that were recurrent, and I deemed relevant for understanding through which parameters the discussion is undertaken in WIPO.

2.1 Framing traditional knowledge protection through intellectual property parameters

60In this section, I will demonstrate how a rationale normally used in the international intellectual property law regime is used at the IGC and transposed to the understanding of the issues of traditional knowledge. During our conversation, the delegate from a developing country affirmed that one of the hardest issues of this forum is “how to apply an economic-commercial logic to something that is often not economic-commercial”.24 These terms do not necessarily reflect how the issue is perceived in Vale do Ribeira.

The meaning of protection in the intellectual property regime

61The intellectual property system gives a very singular meaning to the idea of protection of indigenous knowledge. In WIPO’s context, protection refers to “the application of intellectual property law, values and principles to prevent misuse, misappropriation, copying, adaptation or other kind of illicit exploitation” of knowledge (WIPO 2015, 20). In this sense, intellectual property protection of indigenous knowledge entails “recognizing and exercising exclusive rights” over these knowledges, in order to “grant control over their exploitation, particularly commercial exploitation” and to “provide incentives for further creativity” (WIPO 2015, 21).

62The attribution of intellectual property rights over indigenous knowledge refers at the same time to the attribution of exclusive rights to the rights holders, as well as to the possibility of alienation of the objects of protection of these rights. The recognition of these knowledges as one’s property has a twofold effect: while it entails the possibility of seeking legal protection through law enforcement, which could lead to the application of sanctions to illicit exploitation of indigenous knowledge, it also opens up the possibility of disposing of such knowledge, of alienating it. Unlike the right to culture or the right to a decent life, property rights are at their basis alienable rights.

63Intellectual property protection also guarantees moral rights protection, equitable compensation and protection against unfair competition (WIPO 2015). Its effects are thus mainly linked to possibilities of commercialization of indigenous knowledge and avoidance of its misuse. They refer to the protection of certain portions of indigenous knowledge systems (e.g. a particular agricultural technique, a song, a pattern, a medicinal use of a specific plant), but not to the protection of the system per se. In other words, the protection provided by the intellectual property regime does not cover the conditions of production and transmission of this knowledge, nor does it protect the people that produce it.

64While offering an option to address illicit uses of indigenous knowledge, they do not offer a response to protecting the conditions of production and transmission of indigenous knowledge systems. As Agrawal argues,

if indigenous knowledges are disappearing, it is primarily because pressures of modernization and cultural homogenization, under the auspices of the modern nation-state and the international trade system, threaten the lifestyles, practices and cultures of nomadic populations, small agricultural producers, and indigenous peoples (…) the appropriate response from those who are interested in preserving the diversity of different knowledges, might lie in attempting to reorient and reverse state policies to permit members of threatened populations to determine their own futures, and attempt, thus, to facilitate in situ preservation of indigenous knowledge. (1995, 28 and 29)

65Protecting and enforcing indigenous peoples’ and local communities’ right to decide about their own destinies should, therefore, be at the center of any system that intends to protect indigenous knowledges and cultural expressions.

Mirroring the division between the protection of industrial property and artistic productions

66As mentioned in Chapter III, Section 1.5, one of the main changes that has happened in the two decades of discussion at the IGC is that, for procedural reasons, the forum has decided to discuss no longer just one document, but three. In this movement, the IGC has divided indigenous knowledges into three separate categories: genetic resources associated to traditional knowledge, traditional cultural expressions and traditional knowledge tout court.

67Indigenous representatives have recalled several times in plenary that there is no real distinction between traditional knowledge and traditional cultural expressions. As a Sami Parliamentary Council representative highlighted in IGC 39, “traditional knowledge encompasses knowledge, know-how, innovation, practices. Traditional knowledge also encompasses traditional cultural expressions, such as dances, songs, tales”.

68The IGC Chair has recognized that the distinction between traditional knowledge and traditional cultural expressions is strongly directed towards “making it fit into the IP system”.25 In this sense, the division between traditional knowledge and traditional cultural expressions seems to mirror a central division of the intellectual property system, which differentiates between industrial intellectual property and artistic expressions. As an Aymara representative affirmed in IGC 38, “this thematic distinction responds to the IP system but not to the realities of indigenous peoples”.

69Whereas some member states such as Nigeria26 and South Africa27 also expressed discomfort with the division, other country delegates, in fact, support this distinction. The Italian delegate, reinforcing his support for the EU’s position on the subject, pointed out that “traditional knowledge and traditional cultural expressions are different”.28

70As mentioned in Chapter IV, Section 1.9, the developing country delegate I interviewed for this research understood this division as something that is not easy, but that fits perfectly in the world of intellectual property rights. As he explained with the Coca-Cola example, the world of intellectual property is used to understanding that one single object can carry different categories of intellectual property rights. For him, however, there are very concrete barriers to the advancement of the discussion on TKs and TCEs at the IGC due to the lack of understanding on the meaning of these terms. Regarding traditional knowledge related to genetic resources, however, he believes the existence of well-established national and international regulations (e.g. the Nagoya Protocol) immensely facilitates discussions and that there will soon be room for a Diplomatic Convention on the topic. The interviewed WIPO’s staff member also shares this vision.29

71In this sense, there is a likelihood to advancing to an instrument on genetic resources associated to traditional knowledge sooner than to reaching international legal instruments on intellectual property over traditional knowledge and/or traditional cultural expressions. Indeed, at IGC 40, which took place between June 17 and 21, 2019, a draft text for an international legal instrument was presented by the Chair (WIPO 2019f). The text aims at bridging gaps between different positions and helping the forum to advance on the negotiations, potentially leading to a Diplomatic Conference in the near future.

72The priority given to genetic resources in this instrument seems to have very political motivations, since these are the assets of the highest interest for a relevant number of the stakeholders involved in the forum. Developing countries, who are at the forefront of the process of creation of the IGC, have a demonstrated interested in advancing the protection of biogenetic resources, because they are the ones that most suffer from biopiracy incursions. Industrialized countries, on the other hand, seem to prefer that the topic remained unregulated.

Balancing conflicting interests

73Balance is a principle that is at the basis of the intellectual property rights regime. The rationale for the existence of a system to protect intellectual property rights is that this system “helps strike a balance between the interests of innovators and the public interest, providing an environment in which creativity and innovation can flourish, for the benefit of all” (WIPO 2019d).

74In other words, the intellectual property system tries to balance competing interests: of intellectual property owners, on the one hand, and of the general population on the other. Since the adoption of WIPO’s Development Agenda in 2007, “balance” has also acquired the meaning of seeking a balance between “public and private interests in a way that promotes development” (Netanel 2009, 19).

75While member states such as Switzerland and other European countries stressed the need for a “well-balanced intellectual property regime” directly in their opening statements,30 reinforcing that principle, the LMCs have preferred to stress that a “balanced intellectual property system for everyone emphasis added” is what should be defended.31

76But how does one balance the interest of industry and that of indigenous and local peoples? In other words, how does one balance competing interests and power asymmetries?

77Members of the Indigenous Caucus have often asked these questions at the IGC. In their opening statement for IGC 37, they affirmed that the concept of balance works against their fundamental rights. Pointing to the “vast historical misappropriation” that has occurred, they affirmed that “balance, as expressed, is actually imbalance. It cannot be achieved through inequality. We cannot agree on these instruments until everything is agreed upon”.32

78In the Indigenous Panel at the IGC 37, the Indigenous Caucus also stressed that “Balance is heavily looking on access, and not on the rights of creators (TK holders). The objective must be mainly to acknowledge and respect the rights of TK and TCE holders. Having this as a starting point does not mean there will be a standard protection for all, but that is where you start.”

2.2 Approaches to intellectual property rights and traditional knowledge at WIPO

79In this second section, I will describe the positions of the different participants of the IGC as they were expressed in plenary as well as in the interviews conducted. Whenever possible, I will draw a parallel with the approaches described in the literature review. Not all the positions present in the IGC sessions are represented in the literature. It is important to keep in mind that this chapter is an exercise of clustering positions that are similar, but not necessarily homogeneous. Delegations hardly ever find agreement in all points of discussion, but some general connections can be made, and these are the ones highlighted in the sections below.

Elements of a “conflictual approach”: dispossession and inappropriateness of WIPO as a forum for discussion

80The positions clustered in this section present the inconsistencies and challenges of achieving such an agreement on intellectual property rights over indigenous knowledge at WIPO. Furthermore, they put ideas of dispossession and biopiracy at the center of analysis of the issue.

81In the plenary sessions, a conflictual approach is present in the discourse of Tupaj Amaru, a Latin American representative of indigenous peoples who is rather isolated from other stakeholders at the IGC. He was the only stakeholder that used the word “biopiracy” to talk about misappropriation of knowledge at the plenary. This term is constantly avoided by other stakeholders, who prefer terminologies such as “misappropriation” or “inappropriate use”, which are understood to be more diplomatic. For him, “the text depends on some global powers, it is subjective, subject to the interests of states. Traditional knowledge cannot be subject to economic interests of occidental powers”.33 Tupaj Amaru’s propositions hardly ever receive the support of a member state and therefore do not make their way into WIPO’s documents.

82A somehow similar account to what happens at the IGC has been made by the indigenous representative I interviewed. Although having participated in the IGC sessions for several years (as she puts it: her children, babies when the IGC started, are already grown-ups and the discussions did not reach an agreement), she has not participated in any session since IGC 36. As she explained, this rupture was triggered by the move made by the USA and some of its allied countries to congeal a process that seemed to be finally advancing. For her, eighteen years of negotiations is an absurd amount of time for a treaty negotiation, which can only be justified by “bad faith”. She still believes that fighting for intellectual property rights over indigenous knowledge might be a valid avenue, but she questions the pertinence of carrying out such an endeavor at WIPO.

83WIPO is a forum where there is not only a lack of political will, she argued, but also a lack of understanding of indigenous peoples’ issues and participation. According to her, the level of participation of indigenous peoples at WIPO is significantly lower than that of the negotiations of the CBD. There is not only a difference in the amount of funding to indigenous participation in both fora but also a difference in the access to information. In this sense, the IGC is much more exclusionary, as information about intellectual property is “coded, hard and inaccessible”.34 She argues that it is harder for indigenous peoples to take part in this forum. Another key difference is that, during CBD negotiations, indigenous peoples and local communities had different fora for their participation. This meant a more attentive look to different realities, considering that indigenous peoples and local communities often have different levels of protection in international and national legislation. The forum was also able to have a higher number of participants in its discussions, not least because different groups were not competing for the same funds.35

84For her, res nullius is a key concept to understand the conduct of some delegations at WIPO. Res nullius is a thing that does not belong to anyone, the thing that does not have an owner. This is a legal concept inherited from colonial times, when it was used to say that indigenous territories were, in fact, unoccupied territories, free of owners. In her words: “they have denied our right to be humans to dispossess us from our territories, to justify the killing of millions. Hundreds of indigenous peoples are disappearing in the Americas”.36 Nowadays a concept analogous to res nullius is used in intellectual property law to justify that indigenous peoples do not have the right to property ownership over their knowledges, the concept of the public domain. She argues that through the affirmation that the knowledge of indigenous peoples is in the public domain and therefore cannot be subject to intellectual property protection, indigenous peoples are being dispossessed of their knowledges. For her, if the objective of intellectual property law is to protect those that create, then there is no reason for it not to protect indigenous peoples. This protection, she argues, should not pass by the national state: “our State has carried out genocidal attacks, why would we let them administer our rights?”

85The discourse around the treatment of indigenous knowledges as res nullius was also evoked during the interview with the NGO representative and by a Sami leader during the Indigenous Panel of IGC 37. For him, in the same way, the theory about res nullius has been revoked on the basis that it is inherently discriminatory and goes against the right to equality, the idea of the public domain over indigenous knowledge should also be revoked.

86By placing the experiences of dispossession at the center of their analysis, the positions not only are aligned with a relational view of indigeneity (Hodgson 2011) but also see global processes of biopiracy as new moments of accumulation by dispossession (Boyle 2002; Harvey 2004; Kloppenburg 2010; Peschard 2009; Shiva 1997, 2007; West 2016). Just like what happened to indigenous land, which was expropriated, now indigenous peoples are being dispossessed of their knowledges. These claims echo Shiva’s analogy between episodes of biopiracy and the colonial conquest (1997). In this sense, they are aligned with what I have called a conflictual approach.

87These views point to a conflict in discussing the protection of indigenous peoples’ knowledges at WIPO and see biopiracy as a new moment of accumulation by dispossession. However, they do not point to an unsurmountable opposition between intellectual property rights and the protection of indigenous knowledges. What they do is argue that indigenous peoples should also have the means to decide how their knowledges are treated. In this sense, they argue that indigenous knowledges should not be placed in the public domain, but actually that indigenous groups should also have the right to apply for intellectual property “protection” in case they deem it appropriate.

“Convergence approach”: the creation of a sui generis regime

88Unlike the conflictual approach, the convergence approach is widely represented in the IGC’s meetings and documents. This approach unites the positions defended by the LMCs, the African Group, GRULAC, the Asian-Pacific Group, as well as a large part of the manifestations presented by the Indigenous Caucus. Norway has also been mentioned as a supporter of the IGC and the creation of a sui generis regime (Wendland 2017, 40). Switzerland, although often voicing support for concerns raised by the EU, has also been mentioned as a country that currently has a more open position regarding the forum.37

89Although all these actors do defend the creation of a sui generis regime and want to achieve a binding legal instrument on the issue, their positions are not always convergent. When it comes to the question of who should be the beneficiaries of the new instrument, some member states (e.g. India, Ghana, South Africa and China) argue that nations should also be considered beneficiaries, while the Indigenous Caucus normally takes this proposition with caution. Here it is key to remember that indigenous peoples and local communities often see the international arena as a place to seek protection from the actions of states in their national territory.

90The position of these actors is shared in that they all believe the current intellectual property system does not provide adequate protection for indigenous knowledge and therefore advocate for the creation of a sui generis system. They are convinced about the ability of intellectual property rights to protect indigenous knowledges, although arguing that a specific intellectual property regime should be built to achieve this objective. In this sense, these positions mirror the positions clustered in the convergence approach (Abdel-Latif 2017; Amaral and Fierro 2013; Carvalho 2012; Frankel 2017; Oguamanam 2018; Wendland 2017).

91However, member states often advocate that a sui generis system should be created in consonance with the existing intellectual property system and should therefore prioritize the use of some of its criteria. Indigenous peoples and local communities, on their side, emphasize the desirability of creating a sui generis system in consonance with other international instruments that protect indigenous peoples’ rights (e.g. ILO 169 and UNDRIP). Many also return to the idea of protocols, as prerogatives to collectively decide which parts of their knowledge should become publicly available.

92The basis for seeking the creation of this special system is that the current intellectual property system is not able to account for the specificities of indigenous knowledge, and in fact may lead to its exploitation. Those who promote this approach often take into consideration the existence of different ontologies to argue for this system. As the delegate of Nigeria argued:

For many years IPLC38 communities have been played like football. Once we can act like human beings and recognize generations of injustice. This goes beyond the market economy; this document has its roots on human civilization and how we prioritize one knowledge system over another. We can do without this type of duplicity. We can make progress if we dare to be courageous.39

93These positions also often rely on critics to the insertion of traditional knowledge into the public domain and rely on a discourse that points to “historical dispossession”40 and “misappropriation”.41 As a member of the Indigenous Caucus argued, “traditional knowledge is not a part of the intellectual property system, it is about ways of living”.42 For the Iranian delegate, “just like any other knowledge, (it) should be eligible for protection”.43

94As a Sami leader highlighted during the Indigenous Panel at IGC 39 “within the current system of Western law, our traditional knowledge is exploited” but “IP Protection mechanisms have great potential to protect our TK and enable communities to control and benefit from commercial engagement. The Sami and other indigenous peoples should have the right to maintain, control, protect their cultural heritage”.

95The groups that take a convergence approach are currently proposing the adoption of a so-called “tiered approach” by this sui generis regime. A tiered approach proposes to classify indigenous knowledge according to different levels of protection, considering the level of control, the degree of diffusion and the nature of the knowledge. An indigenous knowledge that is considered sacred by the community, for example, would enjoy the highest level of protection. On the other hand, an indigenous knowledge that is not sacred and is considered widely diffused (already known by several people outside the community), would receive a lower level of protection.

96When looking at the actors that are united by this approach, it is interesting to notice that the majority of the states here represented are a part of the so-called “Global South”, states that are home to a large part of the worlds’ socio-biodiversity. These are also the states that normally derive few profits from the international intellectual property system – except for China, which is currently the main driver of global growth in intellectual property filings (WIPO 2018c).

97It is even odder to see that the advocacy for a sui generis intellectual property system for indigenous knowledge unites on the same side indigenous peoples’ representatives and delegates of member states which are not necessarily known as the most friendly territories for indigenous peoples and local communities (the obvious example is Brazil, if we think of our field in Vale do Ribeira, but one could also mention Indonesia as well as some African states that do not recognize having indigenous populations).

“Conventional IP approach”

98A “conventional IP approach” is the terminology suggested by Wendland (2017, 35) to denominate the discourses conveyed at the IGC by member states that are not convinced of the necessity, or desirability, to create a sui generis intellectual property regime to deal with the problematic of indigenous knowledge. Along these lines, the EU argued it is essential to have “a deep understanding of how the intellectual property system can or cannot assist on guaranteeing the interests of traditional knowledge and traditional cultural expressions holders”.44

99For them, conventional intellectual property law instruments (copyrights, trademarks, patents) could already serve as means of protection of traditional knowledge and the creation of a sui generis regime might lead to an overlap of protection.45 Therefore, they often insert suggestions of text that reinforce “promoting the use of the existing and applicable intellectual property regimes”46 – even if this is already evident, as any new instrument that enters into force in the context of WIPO will not exist in a void.47

100The main representatives of the conventional approach are the delegations of the USA, Japan, South Korea, Group B and the EU. In other words, the non-demandeurs or the group of industrialized countries, which pioneers the rankings of intellectual property applications (WIPO 2018c). The references to this position in the literature seem to be confined to the realm of the discussions at WIPO. The only references identified are the articles by Wendland (2017), director of the Division of Traditional Knowledge at WIPO, by Keating (2017), one of the USA’s delegates for the IGC, and by Oguamanam (2018), Nigeria’s delegate at the IGC.

101Another marker of the positions defended by these actors is the preference for an instrument that has the characteristic of “soft law”, instead of a binding treaty. Furthermore, they often refuse the use of the term “misappropriation”48 and mobilize concepts such as “legal certainty” to argue that one should be careful about the economic and social impacts of such an instrument.49

102Nevertheless, as specified also in the previous approach, these positions are not always the same. In the case of the conventional approach, a key difference is the passionate defense of the public domain by the delegation of the USA, which is normally supported by Japan. Frequently, during the text-based discussions on the objectives of the instrument, the US and the Japanese delegations propose the insertion of expressions such as “recognizing the value of a vibrant public domain”,50 “to enhance and protect the public domain” or “to protect and preserve the public domain”.51

103These positions are very interesting, as these countries have “worked tirelessly over the decades to ratchet up intellectual property protection at the expense of the public domain” and now when it comes to the discussion on intellectual property over indigenous knowledge, “have re-constituted themselves into champions of the public domain” (Oguamanam 2018, 13).

104The adoption of such positions seems to become clearer in light of the conflicts around açaí, a berry from an Amazonian tree which had been patented by Japan as the property of the company Eyela KK Corporation (Agência Estado 2007) or the US patenting of another Amazonian plant, the “ayahuasca” vine (CIEL 2019). Another position that is interesting to notice, in this sense, is Japan’s open opposition to the consideration of States as beneficiaries of this instrument.52

3. Discussion

105In this chapter, we have looked at the construction of narratives of protection of traditional knowledge at WIPO and Vale do Ribeira. Through the analysis of four cases in Vale do Ribeira, it became clear that the development of the idea of protection of their traditional knowledge had not always existed in the region. Just like the concept of indigeneity, understood through a relational lens, the idea of the need to protect quilombolas’ and caiçaras’ body of knowledges is relational and emerges in a context of dispossession. Narratives of protection of quilombola and caiçara knowledge appear among Vale do Ribeira communities as a response to episodes of biopiracy and misappropriation in the region.

106Having a strong articulation around identity markers and considering their knowledge as collective, quilombola and caiçara communities see the decision of how to employ this protection as a collective decision. The forms of protection of indigenous knowledge are thus decided in assemblies, through collective discussions. These conversations benefit from inputs from community leaders that have participated in national and international political fora. Some relevant examples are the cases of Denis, a caiçara who was part of the National Council for Traditional Peoples and Communities, and of Ulisses, a quilombola from Ivaporunduva who participated in the negotiations for the CBD.

107Gathering together the experience of national and international discussions they participated in, as well as exchanges with other indigenous and traditional communities, both have understood that their community’s knowledge is deemed valuable by external actors. Thus, they realized it was important to explore ways to regulate access to this knowledge.

108Considering these points, the importance of participation of indigenous peoples and local communities in political fora cannot only be measured by the influence they effectively have had on the outcomes of the negotiations. The broader effects of articulation (Li 2000; Hall 1996) should also be considered: organized around an identity marker, quilombolas and caiçaras have had the chance to participate in certain discussion fora in which they have accessed information that would otherwise be inaccessible to them.

109After exchanges between traditional communities at Vale, as well as between members of traditional communities and members of indigenous groups from other regions, caiçara and quilombola communities in Vale do Ribeira developed their own community protocols. Protection in this context has a meaning of preservation of their culture and control of access. The communities want to know in advance what the information they provide to researchers will be used for. Traditional knowledge protection, in this context, acquires a certain political meaning, regulated in a communal response.

110These processes changed boundaries between communities and outsiders. On the one hand, the political alliances among quilombolas and also between quilombolas, caiçaras and other traditional communities, are strengthened. On the other hand, quilombolas and caiçaras are much more careful when exchanging information with outsiders (e.g. applying protocols for researchers and not mentioning the name or use of certain plants for tourists).

111In opposition to the political response to indigenous knowledge protection given by traditional communities at Vale do Ribeira, protection at WIPO is framed in terms of intellectual property rights. In this context, protection means at the same time, the possibility of seeking legal protection through law enforcement and the possibility to alienate the object of protection. In other words, intellectual property while offering a type of protection for a body of knowledge, also lays out the conditions for its commodification (Boyle 2002; Harvey 2004).

112In this context, protection is analyzed at WIPO through some already existing parameters of the intellectual property system. Along these lines, it is stressed that this protection should be balanced with industrial interests and mirror the division between the protection of industrial property and artistic production.

113By further entering the substantial discussion, it was possible to see that some indigenous representatives argued in line with some elements of the conflictual approach (Boyle 2002; Harvey 2004; Kloppenburg 2010; Peschard 2009; Shiva 1997, 2007; West 2016). Although these have given a central position to experiences of dispossession, they do not argue for the impossibility of protection of indigenous knowledge through intellectual property rights.

114On the complete opposite side of this approach is the conventional IP approach. Although it aggregates the position of several actors in the forum, it is not widely represented in the literature on the subject. As already mentioned, this position is only evoked in the literature specialized on the IGC (Oguamanam 2018; Wendland 2017). To my knowledge, the only theoretical defense of this point is made by one of the US delegates, Keating (2017).

115In the cadre of the conventional IP approach, what especially catches one’s attention is the fierce defense of the public domain by the US and Japan delegates. A positioning that would seem impossible in other fora gains momentum during discussions inside the IGC. This unusual positioning points to an unequal and awkward quality of the IGC, a forum that is only possible through the connection of two subjects that at first sight may seem unrelated: indigenous peoples’ rights and intellectual property rights.

116The most interesting point in the analysis of the positions at WIPO is, however, the union of Indigenous Caucus and developing countries’ advocates in the construction of a convergence approach (Abdel-Latif 2017; Amaral and Fierro 2013; Carvalho 2012; Frankel 2017; Oguamanam 2018; Wendland 2017). The elements for this conclusion were already inserted in the past two chapters: (i) developing countries articulate, in the sense of enunciating (Hall 1996; Li 2000), the concept of indigenous knowledge to institute a specific forum inside WIPO to discuss access to biogenetic resources; (ii) some of the characteristics for the definition of traditional knowledge are advocated for by both indigenous and developing countries’ representatives.

117But it is in the defense of changes to the international intellectual property regime that we find the peak of convergence of these two actors’ positions. At WIPO, both are strong defenders of a sui generis intellectual property rights regime. Their positions converge in their understanding that intellectual property rights may offer protection to indigenous knowledges.

118The articulation of the concept of indigenous knowledges is key for the institution of the IGC. Indigenous knowledge, as we have argued, is an idea derived from the concept of indigeneity. Indigeneity is a concept against which many states have fought, as is the case for some African countries that do not recognize the existence of indigenous peoples in their territories (Hodgson 2011). However, in this forum, developing states, including the African group, articulate the concept of indigenous knowledge to justify the creation of a specific intellectual property regime, destined to its protection.

119In this sense, only the articulation of a concept that recognizes the specificities of some experiences and local realities allows for this discourse at the global level. Aiming to address issues of biopiracy at the international level, developing countries articulate the concept of indigeneity to justify a special regime of protection to indigenous knowledges that, consequently, is also a regime to protect resources present in their national territory from foreign exploitation.

120In this sense, the recognition of local realities influenced the types of discourses that are possible at the global level. But what is interesting is that the articulation of this discourse is not only done by indigenous peoples. It is being pursued exactly by a part of those from whom indigenous peoples sought remedy in the international arena (Bellier 2013; Hodgson 2011).

121The idea of friction (Tsing 2011) gives us the tool to understand this awkward alliance between indigenous peoples and national states. The articulation of the concept of indigenous knowledge by developing countries in the international arena allows for an encounter that is contingent, unequal and unstable: that of converging positions between groups that, outside the international arena and, more specifically, of the walls of WIPO, have opposing interests. This encounter is only possible inside WIPO, where indigenous peoples and developing countries ally to oppose the interests of industrialized countries.

122It is in this context of pronounced friction, that indigenous peoples and developing countries become advocates for the protection of indigenous knowledge through the intellectual property regime. Through friction (Tsing 2011), a forum that concerns indigenous peoples’ rights is created inside WIPO, an organization that has close ties to industrial interests. And it is through the articulation of indigeneity and of the singularity of indigenous knowledge that indigenous peoples get a seat at the forum – although, and this cannot be stressed enough, still being deprived of the right to vote on themes related to their futures.

123Tsing, nevertheless, reminds us that while frictions makes certain movements possible, it also acts as a “structure of confinement” (Tsing 2011, 6). While it is impossible to know for sure the outcomes of a text that is still under negotiation, this metaphor alerts us to the central role played by the conditions through which these instruments come to life.