Progress is made in Agreements to Transfer Material between Smithsonian and Brazil

From Plant Press Vol. 17 no. 2, April 2014.

Of all the issues encountered on a daily basis over the past decade while attempting to expand and refine the collection at the National Museum of Natural History, one issue stands out for its complexity: How does a museum establish legal title to the genetic material housed within its own collections or collections the institution wishes to acquire? The issue of legal title and commercial property rights has entered the very cutting edge of collections management, and the growing pains are significant. According to the Smithsonian Institution’s policy on museum acquisitions, the licit quality of an accession should be as complete as possible and should be a matter of public record. Objects with incomplete provenance should not be acquired. The guidance is very clear—either the institution owns the object clearly and without encumbrance or it does not.

After years of watching their natural wealth benefit others, many developing nations have become more proactive in establishing a legal framework by which they can protect their diverse biological patrimony. Many of these countries contain some of the world’s most naturally diverse areas on the planet, and as a result are a hotbed of research and potential exploitation.

In 1992, the Convention on Biological Diversity increased the sense of urgency for many countries to formulate ways to protect their natural resources and biological diversity while still allowing the “fair and equitable sharing of benefits arising from genetic resources.” This greater self-awareness has led to the adoption of laws and regulations that attempt to control the ownership and dissemination of a nation’s biological resources. More specifically the natural history community has seen the advent and adoption of regulations that govern the transmittal and legal title of plant and animal specimens from these countries in an ever increasing and complex manner.

In 2001, the Federative Republic of Brazil adopted Genetic Heritage Management Council Resolution No. 20, (Provisional Act No. 2.186-16/2001). The resolution includes the establishment of “contracts” between research/collecting groups and a sponsoring institution or the Brazilian government. These contracts would later be given a more specific title: Material Transfer Agreement (MTA) in the USA or Termo de Transferência (TTM) in Brazil.

The resolution that was passed by the Brazilian government did not stipulate the content of the agreement nor who had authority to sign said agreement. Since 2001 this issue has plagued the movement of Brazilian collections to and from the Smithsonian Institution. Collections loaned, exchanged, or gifted from Brazilian institutions languished under dubious legal title and as such they could not be researched or accessioned. In addition, loan requests, exchanges, and gifts from the Smithsonian piled up awaiting shipment to Brazil. To add further complication, Brazilian material previously acquired by other non-Brazilian institutions could not be given or transferred to the Smithsonian Institution unless the initial receiving institution possessed a valid agreement MTA with either the Brazilian government or a Brazilian institution from which the material had been acquired.

To give some perspective on the size of the issue, according to Index Herbariorum, there are 149 separate institutions that interact with the Smithsonian Institution. Each institution would require a two part agreement (one for outgoing material from Brazil, and one for incoming material to Brazil) and a separate agreement covering material collected within the United States sent from the Smithsonian Institution to a Brazilian counterpart. For the period of 2001-2014 the Department of Botany accepted 209 Brazilian acquisitions totaling 11,041 specimens, the Department requested 132 Brazilian loans of 1,260 specimens, and the Department sent out 81 loans to Brazilian institutions totaling 2,538 specimens. Of these transactions an additional 65 acquisitions remain unresolved representing 3,020 specimens, and 35 outgoing loans representing 923 specimens had to be cancelled due to the absence of a valid MTA with the requesting institution.

Andrew Clark displays a case of herbarium specimens collected from Brazil that can now be processed due to the valid establishment of Material Transfer Agreements. (photo by Melinda Peters)

After years with little progress Carol Butler (NMNH Supervisory Collections Management Specialist) asked that authority be delegated to her to act as the official with authority to pursue and approve all MTAs for the entire Smithsonian Institution. With this new authority, and with additional assistance provided by Katherine B. Barker (Program Coordinator, NMNH Research & Collections), Butler designated Andrew P. Clark (Museum Specialist, Department of Botany) to negotiate and establish MTAs quickly and efficiently so that research and collecting could continue unimpeded throughout NMNH.

Clark constructed a document that was sent to each Brazilian institution that stated the intentions of the Smithsonian, and reiterated the Institution’s desire to continue a long and fruitful research collaboration. Clark doggedly pursued each agreement up the chain of command at each institution, reaching out to a broad range of university, museum, and governmental officials to seek a positive and efficient resolution to each agreement.

As a result of hard work and determination, agreements have been established with an additional 40 separate Brazilian institutions. In addition to the new agreements put in place in the last two years, Clark has also established 19 retroactive agreements that allow the processing and acquisition of roughly a decade’s worth of exchange and gifts sent to the Department of Botany that had been suspended due to the lack of an MTA.

Dealing with this issue has been and continues to be a learning experience. What has become apparent is that this issue is not peculiar to Brazil; in fact many nations (Colombia, Peru, South Africa, Kenya, and Indonesia) are now beginning the process of crafting their own legal agreements that cover national patrimony of natural history materials. In addition to overt actions, many countries and individual institutions have inserted legal phrasing into their loan agreements that establish some of the same legal expectations (i.e. United Kingdom, Australia, and Indonesia).

Comments

[Peninnah]

Thanks for sharing the info.