Roberta Danelon Leonhardt, Daniela Stump and Julia Lenzi
It has become commonplace to say that Brazil is a country ranked with the greatest biodiversity on the planet, accounting for 20% of all species on Earth. However, despite this wealth of native species, many of them unique to our country, the national economy is based mostly on the exploration and cultivation of exotic species. This situation reflects the contradictory scenario of legal uncertainty perceived by industries, research and development institutes and other sectors when it comes to the use of Brazilian biodiversity in their processes and activities.
The new biodiversity legal framework, established by Law No. 13,123/2015 and regulated by Decree No. 8,772/2016, comes with a promise to render the environment less complicated for those interested in exploiting, in a sustainable manner, the Brazilian genetic heritage and the associated traditional knowledge.
Brazil, as a signatory to the Convention on Biological Diversity, was one of the pioneers in establishing rules on the use of biodiversity and sharing of benefits arising from the access to genetic resources and associated traditional knowledge in a fair and equitable manner. Enacted in 2000, Provisional Measure No. 2,052/2000 has since then been reedited several times before assuming the form established in Provisional Measure No. 2,186-16/2001.
Provisional Measure No. 2,186-16/2001 provided that the sharing of benefits arising from the access to genetic resources or associated traditional knowledge could be freely negotiated between the parties and result in the execution of a Benefit Sharing and Use Agreement.
As said Provisional Measure was silent with respect to the percentage or form of payment of benefits earned with the access, the free negotiation between the interested parties prevailed, provided that fair and equitable sharing was respected.
In this context, we may say that one of the most significant changes introduced by Law No. 13,123/2015 was the concept change of genetic heritage provider. If before the provider was the owner of the area where there was access to genetic resources or associated traditional knowledge, today the provider is the Federal Government.
Thus, the rules for payment of the sharing of benefits have become clearer, ensuring greater legal certainty. Currently, benefits may be shared in two ways: (i) monetary – consisting in a percentage of the net revenue from the sale of products arising from the access to genetic resources or associated traditional knowledge; and (ii) non-monetary – consisting in the development of projects for conservation and sustainable use; availability of product in the public domain; technology transfer, burden-free licensing; training of human resources; and/or free product distribution.
The recipient of funds from the monetary sharing of benefits is the Benefit Sharing Fund, which will count on the contribution of a percentage of the manufacturer′s net revenue pre-defined by the legislation, which may be reduced in the event of a sectoral agreement on the subject.
Where traditional knowledge is identifiable, in addition to the 0.5% value payable to the Fund, the holder will also receive an amount freely negotiated with the manufacturer of the finished product.
As noted, the new biodiversity legal framework reshapes the processes related to the use of Brazilian biodiversity and its benefit sharing. Therefore, sectors such as cosmetics, pharmaceuticals, food and agriculture are already mobilizing to adjust their activities to the new rules. New business opportunities and projects are thus launched for those who are not yet included in this market.