O estatuto jurídico do patrimônio genético no Brasil: abordagem a partir do paradigma do comum

Abstract

The context of the Century of Biotechnology and the fact that Brazil is at the top of the megadiverse countries motivate the debate about the legal regulation of the conservation and sustainable use of genetic resources. Thus, the research theme is Brazilian biodiversity and genetic heritage contained in the Convention on Biological Diversity and Law No. 13,123/2015,which provide for the protection, conservation and sustainable use of biodiversity, access to genetic heritage and the sharing of benefits from associated traditional knowledge. The research deals, more specifically, with the legal status of genetic heritage in Brazil in the light of the applicable national and international legislation. The general objective is to investigate the legal status of genetic heritage in Brazil, contrasting the perspective of the traditional civilist classification of assets and, on the other hand, a critical approach from the paradigm of the common. The analytical research method was used, and, in the first moment, a qualitative approach was carried out with a descriptive-explanatory objective of the legal concept of common property of the people for genetic heritage in Law No. 13,123/2015, in the text of the Constitution 1988 and in comparison to the Civil Code of 2002. The analytical method was used to evaluate the different notions, identify and discuss the legal categorization of natural environmental goods contained in this legal diploma, in order to problematize the limits of the distinction between public goods and private goods, characteristic of the law of modernity. As results, the initial hypothesis was verified that there is no identity between the term genetic resource and genetic heritage, considering that this does not designate only matter; it is broader, as it contemplates socio-biodiversity; it is not susceptible to appropriation, as it is considered to be a common use of the people. In addition, it was found that there is no identity between the concept of common use for the people in the 1988 Constitution of the Federative Republic of Brazil and the notion of the 2002 Civil Code. Since the traditional classification of public goods is insufficient for to give an account of the objectives of protecting the ecologically balanced environment, of the fair sharing of benefits arising from access to genetic heritage and traditional knowledge, understanding genetic heritage as a "good for the common use of the people" implies reframing this expression, conceiving the referred good to from a collective or public-social ownership. The concept of "common", emerging from the social sciences, can contribute to the hermeneutics of the constitutional notion of genetic heritage in Brazil, moving the notion of the common use of the people from a private or statist perspective.