Legal reforms solve—Brazil proves—gaps in law require legal solutions

Precisely because of the gaps in Brazilian law, biopiracy continued to occur, making it necessary to create stricter rules to combat these criminal acts, as the only way to truly and effectively protect natural resources, the environment, biodiversity and the discoveries coming from the intellect of traditional peoples and communities38 . As defined by the CBD, when the bioprospecting activity (when the research and exploration of biodiversity is done legally) involves knowledge, innovations and/or practices of traditional peoples and communities, it is necessary that its application occurs with the approval, participation and benefit sharing with the community(ies) involved. Thus, the CBD involved both consultation with the country(ies) of origin of the genetic resources and associated traditional knowledge, recognizing the expression of their sovereignty, and consultation with the traditional peoples and communities that hold the knowledge, which is done through the same country(ies)39 . In cases where, upon being granted a patent, its holder fails to comply with this commitment, he will be subject to the sanctions described in Brazilian law, which is currently the New Biodiversity Law, Law No. 13,123/2015, also known as the New Legal Framework of Brazilian Biodiversity. When analyzing the innovations brought by it in relation to the previous one (MP No. 2,186-16/2001), it is observed that it came with the intention of facilitating the legal exploitation of biodiversity, stimulating agreements and, consequently, benefit sharing. In its art. 8, paragraph 2, it determines that: "The traditional knowledge associated with the genetic heritage dealt with in this Law integrates the Brazilian cultural heritage40 . This was an important change, because when traditional knowledge was conceived as intellectual property it became patentable, and the company or entrepreneur that approached the holders and acquired their knowledge ended up patenting it, becoming its owner, which was commonplace. Now this traditional knowledge goes beyond something only intellectual, representing national culture, representing the identification of a people, being protected as such. It also brings the Chapter V with ten articles that deal exclusively with the rules for benefit sharing. Among them, articles 20 and 21 regulate the percentages when the chosen modality is the monetary benefit sharing, which will be due a portion of 1% of the net annual revenue obtained with the economic exploitation of the product, except for the hypothesis of reduction to 0.1%, with the purpose of guaranteeing the competitiveness of the contemplated sector41 . Thus, this chapter came to make the rules clearer and pre-established. However, the new law, although it has brought important innovations, is still unable to reconcile the economic and scientific interests of researchers with the interests of traditional communities. This is because it continues to allow the distribution of royalties through means other than monetary means, which studies have shown is not beneficial or advantageous for these populations. On the other hand, this law is deficient in relation to inspection and punishment for those who do not comply with it, representing a step backwards, since it favors large corporations and industries, to the detriment of the rights of traditional peoples and communities, allowing biopiracy to continue to occur42 .