Balancing Property Rights on Genetic Resources and Associated Traditional Knowledge: a Case Study fromBrazil

Three property rights dominate the legal debate in governance of access to genetic resources and benefit sharing (ABS), namely sovereignty rights, ownership of traditional knowledge (TK) and intellectual property rights (IPRs). Whereas sovereignty rights -despite recognition in the Convention of Biological Diversity (CBD) - have been subjected to national legislations and other law instruments, IPRs have been regulated and protected at national, international and increasingly the bilateral level. Ownership of TK has been so far not dealt with in any international legal instruments and is often considered within the context of human rights as it relates to rights of indigenous peoples and local communities. Based on empirical data collected in Brazil in 2005, this paper argues that due to the differences in legal up-scaling of the ABS-related property rights and due to the lack of an enforcement mechanism for all involved property rights, the third objective of the CBD, namely the fair and equitable benefit sharing, cannot be achieved at the national level.