Case Studies and Conflicting Interests
Elgar Intellectual Property and Global Development series
Edited by Tania Bubela and E. Richard Gold
Chapter 5: Property Rights, Biocultural Resources and Two Tragedies: Some Lessons from Brazil
Edson Beas Rodrigues Jr1 INTRODUCTION Intellectual Property Rights (IPRs) temporarily confer on their holders the exclusive right to determine the use of the protected subject matter, taking into account their personal interests.2 Because IPRs grant holders the freedom to control their intangible assets and extract income,3 the right to exclude nonauthorized third parties from the enjoyment of protected subject matter is deemed the fundamental attribute of IPRs.4 The right to exclude third parties gives the holders of IPRs the prerogative to choose who can and cannot use their intangible assets,5 regardless of any independent state intervention.6 In recent years, a plethora of public statements, sponsored by representatives of local communities and developing countries, have advocated for the adoption of international regimes to protect Intangible Biocultural Resources 1 I am indebted to Dr. Cristina Theodore Assimakopoulos and Prof. Eliana Rodrigues (UNIFESP) for their valuable inputs and information, which were fundamental for preparing the itens related to the UNIFESP-Krahô case study. The present work was only made possible thanks to the financial support received from the Centre on Intellectual Property Policy at McGill University and from the Institute of International Trade Law and Development (IDCID). 2 Larissa M. Katz, ‘Exclusion and Exclusivity in Property Law’ (2008) Legal Studies Research Paper ie 08 –02 at 34–35. 3 James Boyle, ‘Foreword: the opposite of property?’ (2003a) 66 (1–2) L. & Comtemp. Probs 1–32 at 9–10 [Boyle]. 4 See, e.g., Daniel J. Gervais, ‘Traditional Knowledge & Intellectual Property: A TRIPS-Compatible...
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