Traditional Knowledge and Intellectual Property Rights in Latin America: Towards a Decolonial Approach

CONOCIMIENTOS TRADICIONALES Y DERECHOS DE PROPIEDAD INTELECTUAL EN AMÉRICA LATINA: HACIA UN ENFOQUE DECOLONIAL

CONHECIMENTO TRADICIONAL E DIREITOS DE PROPRIEDADE INTELECTUAL NA AMÉRICA LATINA: RUMO A UMA ABORDAGEM DECOLONIAL

Abstract

This article analyses the underlying ideological dimension of the constitutional reforms in Latin America, with a detailed look at the contested process of Traditional Knowledge (TK) protection and its legal manifestations. Drawing on decolonial theory and textual analysis of constitutions of some Latin American countries (specifically, Brazil, Colombia, Venezuela, Peru, Ecuador and Bolivia), together with case studies and court cases, it demonstrates how Latin American constitutions frame TK protection and how even though some normative assumptions have changed, others remain entrenched. The article suggests that constitutional reforms recognising Indigenous rights to their TK is not enough, while the experiences of Indigenous peoples and their worldviews remain subordinated to colonial logics.

Keywords
Indigenous rights; traditional knowledge; intellectual property rights; decoloniality and Latin America

Resumen

Este artículo analiza la dimensión ideológica subyacente a las reformas constitucionales en América Latina enfocándose en la controvertida protección de los Conocimientos Tradicionales (CT) y sus manifestaciones jurídicas. Basándose en la Teoría Decolonial y en el análisis textual de las constituciones de algunos países de América Latina (específicamente, Brasil, Colombia, Venezuela, Perú, Ecuador y Bolivia), además de estudios de casos y jurisprudencia, este artículo demuestra cómo las constituciones latinoamericanas encuadran la protección de los conocimientos tradicionales y cómo, a pesar de la evolución de algunos supuestos normativos, otros persisten en el tiempo. El artículo sugiere que no es suficiente reformar las constituciones que reconocen los derechos indígenas sobre sus conocimientos tradicionales y que las experiencias indígenas y su cosmovisión continúan subordinadas a las lógicas coloniales.

Palabras clave
Derechos indígenas; conocimiento tradicional; propiedad intelectual; decolonialidad y América Latina

Resumo

Este artigo analisa a dimensão ideológica subjacente às reformas constitucionais na América Latina, com foco na controversa proteção do Conhecimento Tradicional (CT) e suas manifestações jurídicas. Baseando-se na Teoria Decolonial e na análise textual das constituições de alguns países da América Latina (especificamente, Brasil, Colômbia, Venezuela, Peru, Equador e Bolívia), bem como em estudos de caso e jurisprudência, este artigo demonstra como as constituições latino-americanas enquadram a proteção do conhecimento tradicional e como, apesar da evolução de alguns pressupostos normativos, outros persistem ao longo do tempo. O artigo sugere que não basta reformar as constituições que reconhecem os direitos indígenas sobre os conhecimentos tradicionais e que as experiências indígenas e sua visão do mundo continuam subordinadas às lógicas coloniais.

Palavras-chave
Direitos indígenas; conhecimento tradicional; direitos de propriedade intelectual; decolonialidade e América Latina

Introduction

The constitutional reforms enacted between 1989 and 2015 in South America offer a window into Indigenous people’s achievements and aspirations. While these constitutions¹ recognise Indigenous rights and their Traditional Knowledge (TK), the relationship between Indigenous peoples and their nation-states remains difficult, shaped by different development and human rights perspectives. From a development perspective, TK is considered an opportunity for developing countries to promote development and trade (UNCTAD, 2000). From a human rights perspective, TK should be protected to support Indigenous peoples’ livelihoods and cultures, a view based on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (UN, 2007). Nevertheless, most Indigenous peoples do not enjoy clear rights over their land and forest resources (Carrillo, 2022), and governments frequently try to omit or control Free, Prior and Informed Consent (FPIC) mechanisms based on national interest arguments. While debates on how to treat TK persist, centred on how to promote development and ensure Indigenous rights to fair and equitable benefit distribution to TK holders, there is less discussion about how, for Indigenous peoples, land is linked to self-determination, their ability to use and maintain their TK, and their material well-being.

Development and human rights perspectives exist alongside the Intellectual Property Rights (IPRs) regime. IPRs are “the legal protections given to persons over their creative endeavours and usually give the creator an exclusive right over the use of his/her creation or discovery for a certain period of time” (Ansong, 2018, p. 16). This regime secures rewards for creators and ensures defensive protection via the exclusion of unauthorised, third-party use, which is at the centre of debate among legal scholars working with IPRs globally. The rubrics established by intellectual property regimes remain the dominant paradigm under the World Intellectual Property Organization (WIPO), which drafts instrument(s) for TK protection at the international level (Bagley, 2019, p. 33). However, aspects of TK creation clash with the dominant incentive-driven discourse behind the notion of “author”, as well as with the idea of the public domain, which emphasises open access (Varadarajan, 2011, p. 394). On the one hand, the tendency is to confer intellectual property rights on those contributing to original and transformative knowledge, rather than on those whose contributions stem from their relationships with nature. On the other hand, the construction and imposition of the public domain on TK reflect colonialism’s enduring legacy, representing Indigenous or non-Western “others” as backward and their possessions as free for the taking (Oguamanam, 2018, p. 307). Consequently, in the IPR regime, there is no consensus about mechanisms best suited to protect TK, although there is increasing recognition of Indigenous cultures and their rights to their TK, particularly in current Latin American constitutions. Nevertheless, Indigenous peoples continue their struggles in obtaining authorship rights over their TK.

This article analyses how rights over TK are mediated by colonial logic, shaping who and what is entitled to IPRs. It focuses on recent constitutional reforms in Latin America and specific cases of Intellectual Property (IP) protection to illustrate their application. Such cases reveal the limitations of certain “successes” in protecting TK and in promoting other opportunities for the expansion of Indigenous rights. Methodologically, this article adopts a textual analysis of Latin American constitutions, specifically, in Brazil, Colombia, Venezuela, Peru, Ecuador, and Bolivia, countries that underwent constitutional reforms during the 1990s and at the beginning of the 21st century. In these nations, not only is it possible to see the inclusion of Indigenous rights regarding the protection of their TK, but also an opportunity to go beyond them. The article demonstrates how these new constitutions frame TK protection while some normative assumptions, such as state or Westphalian sovereignty, remain entrenched.

Coloniality refers to the process through which settlers continue colonialism by controlling human beings and nature to build settlers’ wealth and privilege (Mignolo, 2011). The decolonial theory explains the uninterrupted persistence of colonialism as one embedded in a predominant conceptualisation of power, law, rights, and sovereignty. It reveals the entanglements of hierarchies, control of nature, and processes of racialisation in various domains that order the world currently (Quijano, 2007). By understanding coloniality as an ongoing process of entanglements, we draw attention to how colonial logic intersects in significant and complex ways within the context of IPRs. This relationship is not evident for legal professionals, who think in terms of proprietary rights when addressing TK protection (Coombe, 2001, p. 275). In doing so, this article contributes to the idea of bringing Indigenous peoples’ claims to their right to protect TK on their own terms. It suggests that constitutional reforms recognising Indigenous peoples’ rights to their TK are insufficient as long as Indigenous sovereignty and the relationships and nuances implied in Indigenous people’s experiences and their undergirding worldviews remain subordinated to colonial logics.

The article is organised as follows. Firstly, we identify the current critiques of the IPRs regime, exposing its limitations in protecting TK and emphasising the need to continue seeking alternatives for TK protection. Secondly, we establish a framework to examine the ideological dimension of constitutional reforms in Latin America. Thirdly, we analyse the constitutional provisions establishing IPRs and TK protection of Indigenous peoples in Latin America, revealing the colonial logic within these frameworks. Next, we examine specific cases of IP in the region to demonstrate how the application of the IPRs regime is used as leverage for business assets, illustrating the mixed outcomes in protecting Indigenous rights in the region. As such, this article extends beyond single-country or comparative case studies, offering a Latin American cross-country comparison on IPRs and TK. Finally, the article concludes by foregrounding the ethical responsibility to protect TK holistically.

1. Intersection between TK, IPRs, and Human Rights

Since the Convention on Biological Diversity (CBD),² when the term “traditional knowledge” (TK) was first used at the international level (Antons, 2012), the meaning of TK and its relationship to IP laws have been discussed. According to Article 8(j) of CBD, TK refers to the:

Knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and [to] promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices, and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovation and practices.

Since TK is both exclusive to Indigenous peoples and intrinsic to local communities, the CBD appears to disadvantage Indigenous peoples and their specific claims (Antons, 2012, p. 158). For instance, the wider concept of local communities can hide Indigenous people’s rights from their ancestral presence in lands and spiritual connections. This may also promote an understanding of TK as the knowledge of mainstream communities, to be represented and defended by the nation-state. Moreover, according to the CBD, the state holds ownership of TK and biological resources. This usually means that, from a sovereign state perspective, the state’s priorities and interests may differ from those of Indigenous groups (Varadarajan, 2011, p. 387-388). Thus, this perspective seems to facilitate the agreements on Trade-Related Aspects of Intellectual Property Rights (TRIPS) developed by the World Trade Organisation to advance the patenting of processes and products for commercialisation.

TK gained visibility when the phenomenon of unauthorised appropriation (bio-piracy) and misappropriation of TK was denounced by developing countries (Varadarajan, 2011). We see in the intersection of TK and IP a strong drive to protect TK and to prevent both bio-piracy and misappropriation, rather than to establish a system of positive appropriation (Correa, 2001, p. 7). For instance, TRIPS protect products developed through high-tech processes and resources but exclude those developed through low-tech and “essentially biological” methods, even when they are innovative. Thus, TK has been long treated as a public resource that can be freely exploited for commercial use, known as the public domain, whereas IPRs were designed for modern scientific and technological knowledge with a clear economic function.

The WIPO took responsibility for an aspect of the discussion about TK. For WIPO, TK encompasses the practices, know-how, innovations, teachings, and learning developed within an Indigenous or local community, transmitted from generation to generation. “It is not limited to any specific technical field and may include agricultural, environmental, and medicinal knowledge, and traditional knowledge associated with genetic resources” (Varadarajan, 2011, p. 373). Thus, WIPO broadened the definition of TK and separated it from Traditional Cultural Expressions (TCE), which include dances, songs and folklore.

WIPO established the Intergovernmental Committee on IP and Genetic Resources, TK and Folklore (IGC) in 2000 to finalise international legal instruments to safeguard these areas. In 2009, WIPO gave the IGC a new two-year mandate to create legal instruments aimed at protecting Genetic Resources (GR), TK, and TCE based on negotiations (Robinson; Roffe; Abdel-Latif, 2017, p. 3). Consolidating these texts is expected to prevent the unauthorised use of GR, TK, and TCE through a modern, binding IP system at the international level, which complements the CBD. However, this initiative is marred by disagreement about the best way to protect TK.

For instance, one point of discord has been whether TK should be registered to qualify for copyright protection. Databases have been promoted to record the content of TK/TCE (Bagley, 2019). However, while the record in the database may be copyrighted, its content is not protected (Hossain; Ballardini, 2021). Copyright is a legal right recognised and enjoyed by the creator of a literary, musical, artistic, or scientific work. It allows the creator to commercialise the tangible expression of their intellectual fruits of labour. Therefore, ideas and stories must be written or recorded while the owner fixes them in the world of copyright. However, Indigenous peoples have often preserved their knowledge through an oral tradition across generations. As Halbert (2014, p. 150) notes, “proprietary rights associated with copyright [...] exert the same colonizing force-they wrest control over the preservation and production of culture from the hands of the local communities. Copyright can thus do harm to local communities, while ostensibly creating knowledge for a larger ‘public good’, meaning knowledge under a modern ideal of progress”.

Another point of discord is whether IPRs could protect undisclosed TK as a trade secret and promote closed-access databases in this regard. However, Indigenous communities need to share and spread their TK within their own communities; thus, overprotection of TK could actually harm Indigenous peoples by preventing its recognition, marginalising the information, and giving the impression that the TK belongs exclusively to the past (Hossain; Ballardini, 2021). Therefore, Indigenous representatives tend to be resistant to compartmentalising their culture to suit the needs of intellectual property law (Antons, 2012, p. 155).

Essentially, TK and IP are both at odds because IP emphasises innovation and appropriation under a utilitarian-based approach that contrasts with Indigenous peoples’ worldviews and rights. For instance, the non-Indigenous and dominant understanding of property differs from that of Indigenous peoples interested in preserving and developing communal rights and interests (Milius, 2009). Indigenous knowledge “entails intimate and pluridiverse relations to ecosystems guided and shaped by the worldviews, languages, and practices” (Nemogá; Appasamy; Romanow, 2022, p. 224) of their communities, which contrasts with IP regimes that envision the object of protection as data able to be extracted and saved, and usable independently from peoples’ daily lives. Thus, TK refers to knowledge produced by community members, organised as per the surrounding environment and understood as a non-utilitarian commodity (Moreira, 2007, p. 33). TK is “a holistic concept that reflects the cultural relationship of Indigenous and local communities with their land and natural resources and cannot be separated from cultural identity” (Wright, 2020, p. 2). As such, TK is a precious resource that also meets the spiritual needs of Indigenous peoples. Thus, protecting TK entails both protecting people’s culture against misappropriation and supporting their livelihoods and cultures.

Article 31 of UNDRIP (UN, 2007) acknowledges the inherent rights of Indigenous peoples “to control, maintain, preserve, and develop their TK”, and posits that states must engage with these individuals in good faith to obtain their consent, known as Free, Prior, and Informed Consent (FPIC). Another international law instrument is the ILO Convention on the Rights of Indigenous and Tribal Peoples in Independent Countries No. 169, which ascertains Indigenous peoples’ right “to participate in the use, management, and conservation of these resources [the natural resources pertaining to their lands]” (Article 15(1)). The Convention, in force since 1991, does not explicitly reference TK but establishes Indigenous peoples’ right to control over the development of their economy, society, and culture (Article 7). This means that the exercise of these rights is only possible using Indigenous customary norms embedded in TK.

The UNDRIP obliges states to consult and cooperate in good faith with Indigenous peoples to obtain their FPIC, moving from an approach centered on leveraging business assets towards one of consultation to prevent misappropriation. State violations of Indigenous rights may be judicially enforceable in domestic courts, although this is not uniformly enforceable in international courts. However, for Indigenous scholars, framing Indigenous claims within the workings of colonial settler law obscures the possibility of autonomy from the existing colonial order (Moreton-Robinson, 2015).

The dominant non-Indigenous group holding the state expects Indigenous peoples to refrain from their claims and conform to the norms and institutions of the state. This is evidenced by the fact that despite constitutional recognition of Indigenous rights, Indigenous sovereignty is diminished by state sovereignty, meaning that the state has control over affairs within its territory without interference from other agents or states (Bauder; Mueller, 2023). For instance, Latin American representatives of Indigenous peoples denounce being invited as observers without a voice in decision-making in the WIPO IGC forum, which is designed by and for states (Lawson; Bikundo; Tranter, 2019, p. 307). Their proposals are not officially accepted as contributions, and their participation remains marginal, mediated by state actors (Lawson; Bikundo; Tranter, 2019, p. 286). Thus, although the IGC includes participation beyond WIPO members (encouraging states to include Indigenous peoples in their delegations), the rules of procedure prevent Indigenous peoples’ representatives from having voting rights.

In the next section, we develop a framework to expose the power structures embedded in IPRs. Using tools from decolonial theory, we critically engage with power dimensions, revealing logics or rationalities that block alternatives to Indigenous self-determination within the existing order.

2. Dismantling Colonial Property

Situating our critique in the traditions of decoloniality implies the recognition of a continuing colonial paradigm that shapes the world through the construction of who is able to know and, thus, have agency. This paradigm is based on Eurocentrism, conceiving and organising knowledge as standard by which the rest of the world is measured (Mignolo, 2011). For instance, TK was deemed insignificant within the modernity discourse driven by science and innovation, while it was simultaneously misappropriated in different forms, disregarding the authorship of Indigenous peoples (Escobar; Pardo, 2007, p. 290). As Maldonado-Torres (2007, p. 259) explains, the colonisation project rested on the inferiorisation of Indigenous cultures so that outsiders could control and exploit these societies. Similarly, both the Terra Nullius and the Discovery doctrines are concepts that imply that land belongs to no one when it is occupied by Indigenous peoples, denying Indigenous peoples the right to sovereignty over those lands, including the right to expel invaders claiming ownership.

In explaining how colonial practices and rationalities are underpinned by a desire to control and dominate “the other”, the decolonial theory reveals a “matrix of power” (Quijano, 2007) with four interrelated domains, which include economic control (land appropriation, exploitation of labour, and control of natural resources), authority (institutional and military), patriarchal dominance (family), and knowledge and subjectivity (appropriation of knowledge and denial of “the other’s epistemology”). An example of this is the construction of dualisms such as secular/spiritual, mind/body, and citizen/savage to keep reproducing hierarchies that master nature and colonised subjects and communities (Maldonado-Torres, 2007). The construct of Indigenous peoples as “natural” makes their knowledge more likely to be appropriated without attribution (Halbert, 2006, p. 138), while considering creators exclusively those who can write or maintain records and photographs denies Indigenous peoples access to their TK authorship.

Mastering nature and communities aligns with what Moreton-Robinson (2015, p. 178) calls a “possessive logic of patriarchal white sovereignty”, a mode of rationality that denies any relationship to land different from the modern/colonial territorial logic of measuring and controlling territory, such as those of state control and individual property. The concept of Westphalian sovereignty, which refers to the state’s supreme political authority established in international law, was developed by Eurocentric ideas of ruling (Bauder; Mueller, 2023, p. 165). Any other forms of organisation are not only ruled out as “illiberal” or “primitive” but also not recognised by international law.

However, Indigenous sovereignty is different. Rather than being written into law and granted by the state, Indigenous sovereignty is a social and cultural way of defining one’s community (Moreton-Robinson, 2015, p. 135). The Indigenous peoples’ relationship with territory includes a three-dimensional interconnection of biophysical, human, and mystical levels embedded in the sacredness of using their territories (Escobar, 2019). Such a relationship with nature and territories clashes with the white possessive logic. As long as TK protection is embedded in such a logic, it is not only unable to express the Indigenous ontologies of territory or their epistemologies, but also fails to protect its interdependence with nature, community, and culture.

To be clear, the link between legal protection of TK and Indigenous rights goes beyond leveraging business within IPRs, and clearly has an impact on the ability of Indigenous peoples to maintain control of their TK use and protection. However, questioning who has the authority to decide over TK and the use and appropriation of land reveals the intertwined power dynamics embedded in decision-making processes regarding TK protection. As the following sections will demonstrate, Indigenous peoples still have limited space to claim authorship of their traditional knowledge and its protection, even though constitutions recognise their rights to do so. The next section analyses recent constitutional reform in South America to demonstrate this claim. It critically reflects on the historical context in which nation-states deal with human rights instruments, state bureaucracy, and pressures for economic development.

3. Indigenous Peoples’ IPRs under Neo-Constitutionalism in Latin America

IPRs of Indigenous peoples in Latin America have undergone significant changes over the past century, evolving within a political economy framework marked by developmentalism and failed promises. Latin America, between the 1950s and 1990s, was driven by modernisation policies supported by import-substitution industrialisation and fostered by military dictatorships where necessary.³ However, having experienced rising commodity prices and appreciation of currency in the 1970s, Latin American countries began relying on excessive borrowing, leading to a debt crisis in the 1980s (Stavenhagen, 2002, p. 28). The response to this was the Washington Consensus, an agenda prescribing export-oriented industrialisation and structural adjustment programs, which failed in 1990s. Poverty and inequality led to radical democracies and left-wing populism in the 2000s, offering recognition to typically excluded groups (Levitsky; Roberts, 2011). However, Indigenous peoples remained the most marginalised and impoverished group across the region (Merino, 2022).

The developmentalist approach has long been part of creating nation-states in the region. Before the 20th century, Latin American governments employed “integrationist” or “assimilationist” policies for dealing with the Indigenous population (Busch, 2015, p. 62), carrying it out especially through education (Macdowell, 2016). These policies aimed to ensure that the “national” concept prevailed over the “Indigenous” one, since the diversity of cultures threatened the homogeneity needed to consolidate sovereign nation-states. Consequently, Indigenous peoples faced the racialisation and dispossession of their own culture by the imposition of a single, overarching national identity (Sharma, 2022, p. 643). This idea was reinforced by racial logic, creating a nation in which Indigenous peoples were represented as inferior (Schilling-Vacaflor; Kuppe, 2016, p. 349). However, with the introduction of Indigenous rights in Latin American constitutions, it was believed that these rights would become enforceable for Indigenous peoples. Under New Latin American Constitutionalism, two new approaches emerged: the cultural-relativity and the pro-Indigenous approaches. The first focuses on culture by seeking to constitutionalise explicit, subjective rights, acknowledging multi-ethnicity (Busch, 2015, p. 63). The second is a more progressive, advanced approach with pro-Indigenous inclinations, reinforcing Indigenous rights by considering Indigenous knowledge and aspirations (Bonilla, 2019, p. 8).

3.1. The Cultural-Relativity Approach

The cultural-relativity approach aligns with the Latin American return to democracy, characterised as the third wave of democratisation (Schilling-Vacaflor; Kuppe, 2016, p. 347). This period also marked a shift in economic policies across the region, moving from the import-substitution model to the promotion of foreign direct investment and export of raw materials (Merino, 2022, p. 174-175). The adoption of this approach is seen in the reform of the national constitutions of several Latin American countries, including Brazil (1988), Colombia (1991), Peru (1993), and Venezuela (1999). All these constitutions recognise Indigenous peoples, moving away from the assimilatory nation-state model and introducing multiculturalism into the region. Although these multicultural constitutions incorporate collective rights of Indigenous peoples, they do not deviate substantially from liberal constitutional-legal frameworks (Schilling-Vacaflor; Kuppe, 2016, p. 350). As a result, these constitutions do not seek to incorporate Indigenous self-determination, and TK is kept within traditional legal ideas, while diversity rhetoric preserves assumptions about socio-ecological systems and Western-style, market-oriented approaches (Jimenez et al., 2022, p. 1637).

3.2. Brazil

The Brazilian Constitution (1998, Articles 215, 216, 231, and 232) recognises Indigenous peoples’ cultures as having their own social organisation, “customs, languages, and traditions, and their original rights on the lands they traditionally occupied”. Today, the inheritance of Indigenous culture includes both material and immaterial goods and incorporates the protection of various cultural expressions. The Brazilian Constitution also acknowledges a broad right to an ecologically balanced environment for common use. This right is intended to benefit both present and future generations, ensuring a healthy life. However, to achieve this, it is important for the government to maintain the integrity and diversity of genetic heritage and to regulate any entities that are involved in genetic material research and manipulation.

To do so, new legislation regulates access to genetic heritage, promoting the protection and fair distribution of benefits related to traditional knowledge. For instance, the new legislation No. 13,123/2015 delegated the responsibility to evaluate, approve, or disapprove the use of TK to the Genetic Heritage Management Council (CGen), an institution created in 2002 under Provisional Measure No. 2, 186-16.⁵ The legislation states that CGen must authorise access to TK only after the holder of TK has given prior informed consent. According to Brazilian legislation, when a product or reproductive material comes from TK with a clear origin, the provider of that knowledge-i.e., Indigenous peoples, traditional community, or farmer-is entitled to receive benefits under the benefit-sharing agreement.

The Constitution, which affords the state the role of protector, reproduces a colonial perspective. Álvarez (2006, p. 161-162) points out that “[t]his kind of recognition of Indigenous rights does not mean a (re)constitution of the state, a revision of the structures that consolidate and perpetuate discrimination and subordination; on the contrary, it implies an effort to keep Indigenous peoples’ identities tied to a structure that is incapable of recognising pluralism and multiculturalism”. MacDowell (2016) adds that the Brazilian government’s usual perspective is that Indigenous rights are individual, recognised as civil rights, not collective rights. For instance, Indigenous lands related to TK have remained the federal government’s property, which is responsible for demarcating them, even though these lands “are described as being in ‘the permanent possession’ of the Indigenous peoples” (Macdowell, 2016, p. 179). This demarcation process frequently involves the political influence of non-Indigenous people trying to obtain legislative power over it. For instance, incentives and economic concessions given to agribusiness reproduce the dominant economic logic in Brazil, marginalising any initiative to benefit Indigenous and traditional communities (Sauer, 2019).

3.3. Colombia

Similarly, the Colombian Constitution (1991) recognises Indigenous peoples as a specific group with rights. It adopts a tutelary, protective approach by prescribing, in Article 61, that the state is responsible for safeguarding IP for a specified period and through the designated methods indicated by legislation. This legislative protection, as per Article 72, may consist of a special right of ethnic groups to archaeological and cultural heritage on the basis that the state owns them permanently and exclusively; therefore, the state can seek their reacquisition from individuals. The constitution develops this protection, as Article 330 vests powers in Indigenous communities to protect natural resources on Indigenous territories and to receive and redistribute related revenues. This protection includes Indigenous communities’ socio-economic and cultural well-being sheltering from the detrimental exploitation of natural resources. As such, it obligates the government to encourage Indigenous participation and representation in decision-making involving the exploitation of natural resources. Article 329 of the constitution endorses the involvement of Indigenous peoples in decision-making processes.

The Constitution of Colombia recognises the essential autonomy of the Indigenous population through special Indigenous jurisdiction (JEI, acronym in Spanish). Within these jurisdictions, Indigenous peoples have the authority to govern themselves based on their customs and traditions, which includes the administration of justice. According to Article 246, “the authorities of Indigenous peoples may exercise jurisdictional functions within the Indigenous territories, in accordance with their own rules and procedures, provided that they do not contradict the Colombian Constitution and national laws”. However, it is crucial to clarify the factual content and scope of the JEI. Although the Colombian Constitution has protected Indigenous legal systems since 1991, their legal acts are “subordinated under the juridical control of regular national courts” (Busch, 2015, p. 197). Merino (2022, p. 186) further explains that these areas of jurisdiction were not created due to multicultural considerations, but due to the state’s inability to control these areas.

Furthermore, Indigenous consultation processes have been adopted in Colombia despite the lack of specific laws for their application. However, these processes remain ambiguous on the topic of Indigenous peoples’ binding consent, and there is no right to veto (Le Billon; Middeldorp, 2021, p. 82). Disputes in Colombia arise from granting mining concessions to both multinational corporations and local businesses, which often involves infringing upon the rights to prior consultation and informed consent. Such disputes have increased since the beginning of the 2000s, as peasant, black, and Indigenous communities face displacement. Furthermore, 83 Indigenous leaders were killed in 2019 alone, as some disputes escalate into violence (Sponsel, 2022). Displacement has meant that while Indigenous peoples protest, most lose their connection with their communities and lands, undermining their legitimacy to preserve their TK.

3.4. Peru

The Peruvian Constitution (1993) recognises Peru as a pluricultural and multiethnic state. Article 89 provides legal existence and personhood to communities of farmers and native peoples so that they autonomously exercise their property rights to the land within the limits imposed by legislation. Legal existence refers to the recognition by the government that the community collectively exists based on its cultural identity and has existed since the Constitution of 1920. Thus, the state should respect community members and promote their development through distinct policies. Legal personhood/personality is the consequence of political recognition and occurs via its registration and publication; as a result, the community can enter contracts and sue or be sued. This is reinforced by legislation recognising the importance of cultural identity for both the farming and the native communities.⁶

The process of identification is problematic. Not only has the Peruvian government hired private consultants to prove that specific communities are not Indigenous, but it also controls the prior consent procedure (Urteaga, 2018). Although the constitution does not recognise the right to consultation, the Peruvian Congress approved Law No. 29,785 in August 2011, granting such a right to Indigenous peoples. However, the law does not recognise the Indigenous conception of time/temporality in its procedure and establishes only a brief period for consulting.

Peru also has special legislation to promote the safeguarding of Indigenous knowledge and the more extensive use of it. Peruvian Law No. 27,811, or the “Law Establishing a Regime of Protection of the Collective Knowledge of Indigenous Peoples Related to Biological Resources”, encourages Indigenous peoples to register their collective knowledge (Kariyawasam; Guy, 2008). The Office of Patent and Unfair Competition (Indecopi, acronym in Spanish) manages the registration process for TK. However, according to Hossain and Ballardini (2021, p. 58), this tool clashes with the understanding of Indigenous peoples, who do not always accept this registration as it may go against their culture and right to preserve TK. Indigenous peoples have created their own protection methods, following customary traditions and establishing local databases and registers to preserve their TK (e.g., the Register of the Potato Park of Pisac in Peru). To expand and sustain these initiatives, more support for Indigenous peoples is needed, such as permanent basic services in communities and ways to facilitate local records. Moreover, Nemogá (2014) notes that, in Peru, cultural and spiritual elements are still not considered in records and databases, as authorities fail to recognise the significance of beliefs in utilising and sharing collective knowledge, reducing this information to data disconnected from its sacred or spiritual meanings.

3.5. Venezuela

Similarly, the Venezuelan Constitution (1999), in Article 124, guarantees and protects the collective IP related to the knowledge, technology, and innovation of Indigenous peoples. The constitution specifies that any actions concerning genetic resources and their knowledge must pursue collective benefits; and it prohibits the registry of patents over these resources and knowledge. The latter is novel, compared to the constitutional processes developed in neighbouring countries. However, the constitution replaces the term “Indigenous territory” with “Indigenous habitat”. Thus, “in view of natural resources in Indigenous habitats, their communities only have a Constitutional guarantee to prior information and consultation, and the exploitation must also create benefits for Indigenous peoples [but] [t]here is no explicitly recognised ownership over resources” (Kuppe, 2004, p. 166).

This demonstrates that, despite the increased recognition of Indigenous peoples and their TK, legal decisions continue to be supervised by the Venezuelan state, a non-Indigenous system. In this way, the nation-state, as protector, makes invisible the sovereignty of Indigenous peoples and their struggles and subordinates any recognition of Indigenous law, retaining centralised state law as dominant. As explained previously, this reproduces a logic of economic development that functions against Indigenous peoples. This is evidenced in the project named “Arco Minero del Orinoco”, which offered 12% of the entire national territory around the Orinoco River to mining companies, including transnationals, through a presidential decree in 2016 (Venezuela, 2016). There is no evidence of free prior consent, although 197 Indigenous communities live on the land. The lack of such evidence violates the constitution and national legislation (Velasco, 2022). Thus, the relationship between Indigenous culture and land, necessary for TK, is denied when Indigenous lands are perceived as state property, reproducing the logic of dispossession.

3.6. The Pro-Indigenous Approach

The pro-Indigenous approach has, at its core, a new interpretation of the relationships between human beings and nature that is based on plurinationalism, Buen Vivir principles, and the rights of nature, which views non-humans and humans as equal (Bonilla, 2019, p. 9). This approach recognises the collective ownership of TK by Indigenous communities, their consent in a process involving these resources, and their rights to share any benefit that may arise from those decisions. Adoption of the pro-Indigenous approach is demonstrated in the reforms of the constitutions of Ecuador and Bolivia. These constitutions were influenced by the UNDRIP and moved the nation-state to create “plurinational states by conceiving of Indigenous peoples and institutions as transversal dimensions of the whole state structure” (Schilling-Vacaflor; Kuppe 2016, p. 352). The concept of a plurinational state means that diverse cultures coexist in equality, transcending purely cultural aims and striving to reduce unequal power relations (Schilling-Vacaflor; Kuppe, 2016, p. 353). Hence, Indigenous knowledge is considered a legitimate source of legal and political knowledge (Bonilla, 2019, p. 12) that can coexist with the rights of nature. Under this approach, a platform for knowledge sharing between Indigenous and other epistemic communities is possible, opening the possibility of bringing Indigenous claims to their right to protect TK on their own terms. However, these constitutions still maintain the Westphalian idea of rule by a supreme authority and the legal enforcement of this authority, as we will observe below.

3.7. Ecuador

The Constitution of Ecuador (2008) is the first in the world to recognise the rights of nature (also named Mother Earth or Pachamama), granting nature its own legal rights. For instance, Articles 71 and 72 include the right to conservation and restoration. In terms of IPRs, the Ecuadorian Constitution acknowledges, in Article 22, the people’s rights to the protection of intangible and proprietary rights arising from their scientific, literary, and artistic works. Furthermore, Article 57 recognises and guarantees collective rights regarding the development of Indigenous ancestral traditions and their active participation in managing renewable, natural resources on their lands through leasing, conservation, and utilisation. This makes possible Indigenous Territorial Jurisdictions, governed by “interculturalism and plurinationalism in accordance with collective rights” (Art. 257). However, the state shapes the criterion for delimiting territories based on formal administrative frontiers, not on the boundaries of ancestral lands (Merino, 2022, p. 189).

The Ecuatorian Constitution also acknowledges their rights regarding the development of their TK (science, technology and ancestral wisdom, and traditional medicine), genetic resources, and knowledge of fauna and flora. This is reinforced by prohibiting appropriation of Indigenous peoples’ knowledge, innovation, and practices. Specifically, Article 322 acknowledges IP as regulated by legislation while prohibiting any form of appropriation of collective knowledge related to ancestral science, technology, and wisdom. Article 402 also prohibits granting IPRs over products derived or synthesised “from collective knowledge associated with national biodiversity”.

The Constitution of Ecuador does not explicitly grant Indigenous peoples the right to FPIC, but it recognises their right to be consulted and informed of any proposed measures that may affect them (e.g., mining, oil, or gas drilling). Article 57, subsection 7, states that “if consent of the consulted community is not obtained, steps provided for by the Constitution and the law shall be taken”, leaving room for intervention by the Supreme Court. In other words, if FPIC is absent, the constitution may prohibit “plans/programs”, according to Article 57, section 7.

The interconnection of TK and territory is recognised in Article 57, section 12, of the constitution, which states the following rights: “to uphold, protect and develop collective knowledge; their science, technologies and ancestral wisdom; the genetic resources that contain biological diversity and agricultural biodiversity; their medicine and traditional medical practices, with the inclusion of the right to restore, promote, and protect ritual and holy places, as well as plants, animals, minerals and ecosystems in their territories; and knowledge about the resources and properties of fauna and flora”. The constitution also asserts that “[a]ll forms of appropriation of their knowledge, innovations, and practices are forbidden”. Thus, TK is understood as knowledge related to an intimate relationship between Indigenous peoples and nature. However, in practice, the Westphalian concept of authority seems to frame TK protection, perpetuating the assumption that Indigenous epistemologies are inferior to those that originated in Europe.

This rationality was observed when former president Rafael Correa (2007-2017) famously stated that Indigenous movements created “obstacles to economic development”, “blocking the country’s progress” (Aanestad, 2011). Moreover, the government, in developing the oil and mining industries, used FPIC to legitimise oil extraction (Urteaga, 2018).

3.8. Bolivia

The Bolivian Constitution (2009) defines, in Article 30, the “Indigenous-aboriginal-farmer nation and people” as individuals who share a common culture, language, tradition, institutions, territory, and “cosmovision” or worldview. This shared identity precedes Spanish colonialism. As such, Indigenous peoples, namely, the Indigenous-aboriginal-farmer nation and people, are entitled to IPRs on their wisdom, science, and knowledge and its valorisation, use, promotion, and development. This is operationalised by provisions like Article 41, which limits IP and commercialisation rights on medicines to guarantee people’s access to them. Likewise, Article 42 obligates the state to promote traditional medicine by preserving ancestral knowledge, registering natural medicaments and their active ingredients, and protecting such knowledge as intellectual property and cultural heritage.

By protecting traditional expressions, Article 100 grants the ownership of “cosmovision, myths, oral history, dances, cultural practices, knowledge, and traditional practices” to the Indigenous peoples as part of the identity of the state. As such, the Bolivian state protects the intangible rights of Indigenous peoples and Afro-Bolivian communities via the registration of IP. As per Article 101, this protection extends to intangible aspects of popular art and industries and intangible and tangible components of sites and activities declared as belonging to world heritage. To do so, Article 102 specifies that the state is to register and protect the individual and collective IP of “works and discoveries of authors, artists, composers, inventors, and scientists” as legislated.

Locally, Article 304, II, vests shared powers in Indigenous-aboriginal-farmers’ autonomies to protect and register collective intellectual rights concerning knowledge of genetic resources, traditional medicine, and germplasm, as regulated by legislation. Centrally, Article 381 places a responsibility on the state to safeguard genetic resources and microorganisms in ecosystems within the territory and to also protect the knowledge related to their use and exploitation. To protect these resources, their existence and IPRs are recorded in a registry. Any resources not registered are protected by legislation.

However, a development discourse has impeded a real recognition of Indigenous rights. For example, the 2014 Mining and Metallurgy Law clearly established that mineral resources were strategic (cited in Eichler, 2019, p. 96). As such, these resources remained under the control of the central government, reaffirming a Westphalian control over nature. The state is still seen as the central and hierarchical authority that defines territories and decides what needs to be sacrificed in the name of development. This demonstrates the persistence of colonial logics, which continue to define ways to exploit land, even when Indigenous rights are recognised.

In short, the new Latin American constitutions progressively adopted human rights language in their dogmatic bills of rights, articulating collective IPRs with novel substantive, procedural, and remedial mechanisms. However, although the new constitutions include TK, more is required to establish, build, and consolidate a new relationship with knowledge that differs from that of the colonial property paradigm. Not only is control over Indigenous lands and knowledge still normalised in bureaucratic processes, nation-state institutions, and economic development discourse, but its practices also ignore Indigenous protocols, responsibilities, authority, and control over Indigenous peoples’ land, lives, and knowledge. Next, we analyse cases in which initiatives to protect TK are implemented to identify the complexities and the need for an approach recognising Indigenous self-determination.

4. The Right to TK in Latin America: Some Examples of Implementation

There exist cases that demonstrate how IPRs provide opportunities for economic development in Latin America. Some communities have used the IP framework to leverage their collective rights and reap greater benefits. For example, in Brazil, Act No. 13,123 of 20 May 2015 ensures that genetic heritage is accessed and protected, along with TK, while ensuring fair distribution of benefits. Accordingly, when a product or reproductive material is created using traditional knowledge from a specific source, the TK provider is entitled to receive benefits under the benefit distribution agreement. A case wherein Indigenous peoples benefited from mainstream collective IPRs protection is the Brazilian Associação das Erveiras do Mercado Ver-O-Peso. The Erveiras or herbalists sell products and fragrances based on traditional herbs in a market in Belém, in the state of Pará. Initially, this was a case of bio-piracy perpetrated by the company Natura S.A. and its Ekos brand, which used the Erveiras’ knowledge to develop and advertise the company’s products. With the assistance of existing legal institutions, the Associação das Erveiras do Mercado Ver-O-Peso and Natura reached an agreement whereby the Erveiras would receive compensation (Pinto, 2018, p. 182).

Another case of mainstream protection through IP laws is that of traditional gold in Chocó, Colombia. Like the Erveiras case, the Chocó case demonstrated the value of using IP laws to assist Indigenous peoples. WIPO (2013) highlights this case on trademarks protection of traditional knowledge by Afro-Colombians. This ancestral, traditional technique, known as artisanal, small-scale mining (ASM), has its origin in the 17th century and was rebranded as the “Oro Verde” (green gold) initiative by the Corporación Oro Verde-a non-profit organisation-to market their products under their own certification system. Oro Verde is a trademark, registered in 2008 in the UK and in 2014 in the US, and it is a direct reference to the Chocó ASM community and their environmentally friendly artisanal methods. Oro Verde is an example of how TK and IPRs merged successfully by establishing new rules and standards for ASM in Colombia while increasing incomes, enhancing miners’ social status, and supporting the environment.

However, the Colombian government gave mining concessions (licences) to non-Indigenous organisations in the Chocó province without consulting with the community, overlooking traditional mining practices (Nemogá; Appasamy; Romanow, 2022, p. 10). The communities in Chocó have experienced a decline in traditional farming practices since the 1990s, affecting their capacity to transmit their TK. The situation became so critical that, in 2015, organisations representing Indigenous and Afro-Colombian communities submitted an injunctive action of tutelage (acción de tutela) to protect their fundamental rights, calling for an end to these concessions (Colombia Constitutional Court Ruling T-622/16). Hence, exploring the judicial system’s role in protecting Indigenous rights, particularly through Colombia’s use of the injunctive action of tutelage (tutela), helps demonstrate the intersection of IPRs with broader rights protection.

Unlike the use of IPRs to leverage business assets, the tutelage mechanism became a distinctive tool to prevent misappropriation. The Colombian Constitutional Court is a leading authority in the region regarding the jurisprudential development of FPIC. The injunctive action of tutelage (amparo, in other Latin American jurisdictions) is a judicial remedy designed to prevent threats or violations of fundamental human rights via expedited access to the judicial system. This provides constitutional courts with the judicial power of constitutional interpretation, subject to the court’s discretion to grant permission to appeal (Nemogá; Appasamy; Romanow, 2022, p. 8). Through such injunctive powers and the demands of Indigenous movements, some Indigenous communities have been granted the protection of fundamental rights.

One such case is the registration of the trademarks Coca Zagradha and Coca Indígena, challenged before the Colombian judicial system by the National Indigenous Organisation of Colombia (ONIC, acronym in Spanish) and brought against the Superintendent for Industries and Commerce, who had registered the trademark. The trademark was for the commercialisation of artisanal products made from the coca leaf for food and homoeopathic medicine based on legally cultivated, Indigenous coca. Consequently, ONIC lodged a constitutional legal action of tutelage (injunctive protection or tutela) against the violation of fundamental rights to prior informed consultation, collective property, ethnic and cultural identity, national culture, due process, and a healthy environment. The legal action also challenged the use of the spiral symbol used by Indigenous peoples to represent a snail, because such representation usurped Indigenous identity and misled the consumer. Therefore, the Colombian Constitutional Court had to determine if the trademarks violated Indigenous identity and whether express consent had been granted via prior consultation. The Colombia constitutional judgment (T-477/12) of 2012 overturned an appellate decision that dismissed ONIC’s action challenging the trademark registration. As a result, the constitutional court decision suspended the administrative act granting the registration of the trademarks and decided in favour of the Indigenous communities, thereby protecting the right to cultural identity. Thus, these instruments aptly protected TK and collective IPRs by ensuring that FPIC was observed.

However, cases in courts involve costs such as paying solicitors, translators, and researchers. Indigenous peoples often struggle to afford the resources to pay for these costs, and most may choose not to follow this process. On the other hand, the FPIC mechanism has faced opposition from the government. Former Colombian President Santos (2010-2018) described the FPIC as a mechanism for Indigenous peoples to enjoy the right of expression and influence decision-making; however, he emphasized that this right is limited when the general public interest overrides Indigenous rights to FPIC. He suggested that FPIC does not grant veto power to Indigenous communities on measures that may affect them, nor is it an obstacle or extortion tool for businesses (Herrera, 2019, p. 215). The Colombian local media echoed this viewpoint, describing the FPIC as a roadblock to development (Vallejo, 2016, p. 149). Therefore, for the Colombian government, the right to FPIC is merely a validating component of decision-making in the general interest. Moreover, the government stated that, since ILO Convention No. 169 does not define a sacred site or object, the government will continue developing national legislation unilaterally. This relates to the concept of Westphalian sovereignty to uphold its superiority over Indigenous peoples without recognising Indigenous campaigns for self-determination and land rights. In this context, advocacy for self-determination is represented against the state and society. Thus, we see how racialisation works. Since “the other” does not have the same humanity, the others’ bodies and cultures can be sacrificed to benefit development. The position of Colombian government assumes that the Indigenous interest, when contrary to the general interest, is less important than the latter. The government seems to be working on the basis that Indigenous peoples are deemed as a minority or interlocutors who are legally incompetent to participate in political debate. This colonial position, denying political agency to Indigenous peoples, reveals the deep and embedded networks of racialised power that continue to inform formal institutions.

The observation of this clash of interests in Colombia, in which government, private organisations, Indigenous peoples, and the judicial system interact, reflects the complexities of protecting TK. Seeking to guarantee Indigenous rights, the Colombian courts have issued a ruling, which has been in effect since 2016, recognising 14 eco-regions as rights-holders (Richardson; Mcneish, 2021). Although none of these court decisions directly addressed the protection of TK, these cases protected fundamental rights, which indirectly safeguarded TK and its traditional governance systems. The goal of equity is to address the hardship caused by the general regime and correct the imbalance in bargaining power. However, the imbalance of power persists when efforts to address Indigenous rights violations overlook Indigenous epistemologies and practices. As one Indigenous member of Colombia’s U’wa declared during a forum in October 2015:

We do not want a prior consultation; they do not have reason to ask us, because we do not have the right to a veto. If they don’t respect the ultimate decision of the people, why negotiate mother earth, why negotiate life, negotiate the territory? So, the consultation would be like, how would you, as a people, like to die? By knife? By the bullet? Expropriated? (...) What we want is to live, and to live with dignity. The territory is our life, and that is where we feel we are alive, where we give continuity to our uses and customs. (…) While [the government] doesn’t respect [the ILO 169] Convention, we will not accept a consultation process (cited in Le Billon; Middeldorp, 2021, p. 86).

An Indigenous call for understanding different relationships with nature and different epistemologies helps us move beyond Western paradigms that compartmentalise knowledge and conceptualise power as control over humanity and nature. A holistic understanding of life, territory, community, and customs is essential to TK; thus, the IPRs system should include these factors as part of Indigenous self-determination. If actions against the misuse of TK, including the injunctive action of tutelage, ignore Indigenous ontologies and epistemologies, then we remain under a colonial paradigm confined by the nation-state, which asserts control and ownership over land and natural resources.

Conclusion

The increasing recognition of TK in international legal instruments has been a reference to develop the discourse on TK protection beyond the scope of commercialising knowledge. National initiatives protecting TK and guaranteeing Indigenous rights have, so far, required an effort to integrate Indigenous worldviews into protection systems. However, the focus of Latin American states on providing recognition and addressing rights violations ignores efforts for Indigenous self-determination and land rights. This approach restricts Indigenous peoples from exerting their right to self-determination, from developing alternatives to the current IP regime, and from gaining effective control over their lands.

The limitations of the IP rights regime stem from its reliance on the concept of property to protect TK. The structure of IP law, along with its hierarchical ordering of knowledge, perpetuates a colonial logic of possession, which replicates the land-based practices of appropriation by implementing systems justified as superior, while Indigenous peoples face difficulties to navigate them. For instance, recording knowledge (e.g. through copyright, which does not require a registry, or through written or digital means) may improve the trading platform for communities that license their collective knowledge. However, making this task possible requires for communities to articulate themselves as suppliers within a market and recognise the record-keeping system as an institutional channel for both accessing and protecting TK. These channels are controlled by non-Indigenous “experts”, and the legal costs tend to be disproportionately higher for Indigenous peoples. These manifestations are similar to the “possessive logic of patriarchal white sovereignty” that has had a longstanding, pivotal position in the appropriation of Indigenous land, either by states or private individuals (Moreton-Robinson, 2015).

The current emphasis on the human rights approach has limitations. The approach shares the same design as that of institutions controlled by non-Indigenous peoples, framing TK as property under the modern Western liberal paradigm, disconnected from land, kinship, interdependence, and an Indigenous understanding of temporality, which is the language of past, present, and future generations. Thus, a focus on human rights does not necessarily invite us to think about Indigenous sovereignty in different ways; rather, as Moreton-Robinson (2015) argues, it contains the risk of keeping the conceptualisation of power within law, knowledge production, and liberal thought. This conceptualisation continues to manage domestic and international IPRs regimes, presenting them as neutral and universal.

This article has demonstrated that this supposed neutrality and universality denies other peoples’ knowledge and practices. Applying decolonial theory has helped reveal the interrelationship between the TK of Indigenous peoples, their land, and local communities, which is relevant for safeguarding TK. Considering such interrelationships as unique socially, politically, and culturally allows us to understand TK protection as more than just a legal concept. Although we have seen the role of constitutional courts in protecting TK as relevant, particularly in Colombia, this article highlights how mechanisms of consultation remain entrenched in colonial paradigms.

Ensuring the elements of this interrelationship should be a primary task for humanity, given the history of dispossession experienced by Indigenous peoples and modern environmental challenges, such as loss of biodiversity and knowledge erosion. Therefore, Indigenous participation must be real, not tokenistic, and it requires active listening and engagement. Moreover, the particularity of Indigenous rights should not be perceived as contrary to liberal universalism, but as a reference to engaging in new forms of negotiation (Moreton-Robinson, 2015, p. 385). This allows Indigenous peoples to create and develop a comprehensive protection system that can be decentralised, bottom-up, and less abstract than current IPRs. It also encourages the international community to engage meaningfully with “the other”. Such a shift requires sui generis IP protection that contemplates Indigenous peoples’ rights and their sovereignty as a central reference to protecting Indigenous TK, recognising the collective ownership of their lands and the spirituality attached to such lands.

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• WRIGHT, Evana. Protecting Traditional Knowledge: Lessons from Global Case Studies Cheltenham: Edward Elgar Publishing, 2020.

• 1
  Constitutional reforms recognising Indigenous rights and their TK have occurred in Latin America since the 1980s, namely, in Guatemala in 1985 and Nicaragua in 1987.
• 2
  In 1992, the international treaty was adopted, but it has been in force since 29 December 1993.
• 3
  E.g., Paraguay, 1954-1989 under Stroessner; Brazil 1964-1985, ending with João Figueiredo; Chile, 1973-1990 under Pinochet; Argentina, 1976-1981 under Videla.
• 5
  Dated 23 August 2001.
• 6
  Act No. 27811, dated 24 July 2002, creates the Protection Regime for Indigenous Peoples Knowledge about Biological Resources (Peru, 2002).

• Como citar este artigo

  SÁNCHEZ-LASABALLETT, Eliezer; GONZÁLEZ, Ybiskay. Traditional Knowledge and Intellectual Property Rights in Latin America: Towards a Decolonial Approach. Revista Direito GV, São Paulo, v. 20, e2431, 2024. https://doi.org/10.1590/2317-6172202431

• 4
  Act No. 13.123, known as the Biodiversity Law, 20 May 2015, develops this right in alignment with Article 8 of the CBD (adopted by Executive Decree No. 2.519 on 16 March 1998 (Brazil, 1998; 2015).

Editora responsável

Catarina Helena Cortada Barbieri (Editora-chefe). Duas decisões editoriais, incluindo desk review.

Pedro Salomon Bezerra Mouallem (Editor-chefe). Duas decisões editoriais, incluindo a decisão final.

Publication Dates

• Publication in this collection
  22 Nov 2024
• Date of issue
  2024

History

• Received
  27 Apr 2023
• Accepted
  30 Apr 2024