Brazil: Access To Genetic Resources: A Critical View

Last Updated: 8 January 2015
Article by Cláudio Mattos

Brazil is one of the largest holders of biodiversity in the planet, and therefore it needs to keep holding a prominent position in the international scenario in regard to the sustainable and organized use of its genetic resources.

Although the concept of "genetic heritage" appears in article 225 of our Federal Constitution of 1988 and although the Convention on Biological Diversity of 1992 warded the subject off, the Provisional Measure 2186-16 plays a pivotal role as it became the crucial legal parameter in Brazil by virtue of the Constitutional Amendment 32 which made that Measure legally enforceable.

It is important to identify and understand the barriers and obstacles to the development and exploitation of such heritage.

The difficulty to interpret what is access to the genetic heritage; the requirement for the Public Authorities' prior authorization for access and collection; the requirement for previous consent of the owner of the area or place involved; and the requirement for sharing and fair and equitable division of the benefits arising out of the access, are illustrative examples of points in the legislation that generate not only doubts to those that intend to carry out research but also legal uncertainty to transactions, and, consequently, affect the technological development and innovation based on the use of the genetic heritage.

Currently the authority that essentially grants prior authorizations is the CGEN ("The Genetic Heritage Management Council").

We may understand, also under the technical guideline drawn up by the CGEN, that collection differs from access because access refers to the molecular level where the intent is to isolate and identify genetic data of an organism. Collection is the simple action of removing, expurgating or obtaining the organism in situ conditions.

Another controversial requirement is the prior consent of the owner of the involved area or place to the access. How to know in advance which is the place where the research will be conducted and the material will be collected?

As it is not possible to expect an exercise in futurology from the companies or interested parties, such requirement increases the cost of the transaction because it causes the need for multiple comings and goings from and to the place of the access to confirm if the area is the correct one and if it is adequate for the research.

In any context of innovation, ineffective and costly bureaucratic procedures inhibit the exploitation and development of creations and inventions by individuals.

Added to the ineffectiveness generated by the uncertainties in the rules laid down is the fact that the Provisional Measure ensured the owner of the area the right to be a party to a contract on use of genetic heritage and sharing of benefits.

This contract is a bilateral instrument between the party interested in accessing the genetic data or information and the provider that may be, among others, a community that has the possession of the genetic data or a traditional and special knowledge, which parties will share with the government the division of the benefits.

According to the Provisional Measure, in particular in regard to access for future commercial purposes, the fair and equitable distribution of the benefits must be provided for in such contract.

The lack of parameters for the understanding of "fair and equitable division of the benefits" creates in practice endless discussions and questioning between all those involved. Added to this is the enormous possibility of a mistaken identification of the owner of the accessed area, as controversies between communities over the ownership of a given area or even a given traditional knowledge associated with genetic information are quite common.

So many are the uncertainties that a potential investor or interested party will be likely to face that we should stress the role of the industrial property in the interaction with the Provisional Measure. Without understanding the balance between the intellectual property and the environment, we will incur the risk of hindering the scientific development based on political premises or malicious intents.

Article 8, paragraph 4, of the Provisional Measure 2186-16 establishes that "the protection ensured hereby will not affect, infringe or restrict intellectual property rights".

However, which is the level of interrelation and autonomy of the intellectual property rights, in particular those of industrial nature, in regard to products generated by access to genetic heritage under the Provisional Measure no. 2186-16?

The issue is controversial as it automatically polarizes two large groups: the group that holds the resource and the traditional knowledge and the group composed of more developed countries that intend to effectively use such assets/resources to develop new products and processes.

Even with the different legislations worldwide, concerning applications for patents abroad, it is consistent to conclude that those for the patent of a product or process in another country will be granted it if all requirements set in the industrial property law of such country are met.

Thus, it is coherent to understand that not rarely may be it possible to identify in other countries patents applied for by, and granted to, foreign companies whose subject resulted from past activities (at the beginning of the prospection and/or the field or scientific research) related to the use of, or access to, genetic material or traditional knowledge obtained in other countries.

How to regulate situations as that one described above remains a challenge, as it also affects the sovereignty of the countries.

Notwithstanding all challenges, aligning the principles of the Convention on Biological Diversity of 1992, the cultures of all participants, and the interests of each member state in the matter of the industrial property with a uniform legislation on the use of the genetic heritage and associated traditional knowledge will bring modernization and important changes that will benefit the whole community involved.

A correct creation and interpretation of uniform rules and their application to this area must be part of a strategic policy for the sustainable development of the world community.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions