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TITLE: Plant Variety Protection Law and UPOV in Costa Rica
AUTHORS: Isaac Rojas, Silvia Rodriguez and others
PUBLICATION: Prepared for BIO-IPR
DATE: November 1999
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PLANT VARIETY PROTECTION LAW AND UPOV IN COSTA RICA

By Isaac Rojas, Silvia Rodriguez and others
November 1999


Costa Rica is a member of the World Trade Organisation (WTO) and as such
must comply with WTO obligations. In the field of intellectual property, the
Ministry of Foreign Trade presented several bills to the Legislative
Assembly [Parliament] in June 1999 to fulfill the requirements of WTO’s
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).
Among these is the Plant Variety Protection (PVP) bill. The deputy Belisario
Solano, President of the Intellectual Property Committee of the Legislative
Assembly, took charge of the discussion over these bills. In broad strokes,
the PVP draft is a copy of the 1991 Act of the UPOV Convention, with the
difference that the bill allows for protection of plant varieties by patent
and it extends the breeder's right to the product of the farmer’s harvest.
Thus, for the purpose of TRIPS, Costa Rica is confusing the sui generis
option with UPOV. We should point out that up to now, our country is not
member of UPOV.

Since 1997, several organisations of academics, environmentalists, small
farmers and indigenous peoples have been working together on biodiversity
issues in Costa Rica. These groups: take part in the special subcommittee
which drafted the Biodiversity Law; form the Biodiversity Coordination
Network; and are represented in the National Committee on Biodiversity
Management (CONAGEBIO) which is a body including the public and business
sectors as well, to define national policy on biodiversity. Our
organisations have gained a space in the national policy-making arena and
have been able to have an impact in several discussion processes. The
recognition of the work of some people who participate in the network -- for
example, Dr Silvia Rodriguez was granted the 1999 Roberto Brenes Mesen prize
-- and the presence among us of former President Rodrigo Carazo Odio have
strengthened the work of our organisations on biodiversity policy.

When the package of intellectual property laws was sent to the Legislative
Assembly for urgent compliance with WTO requirements, the Assembly took it
into the ordinary law-making process: publication of the bill in the
official journal, assignment of the draft to a committee for examination and
then discussioin in the plenary which approves or rejects the law. We
anticipated that, since the subject of the proposal is of great national
interest and many people’s rights are at stake, the Legislative Assembly
should promote the participation of different social sectors in the
discussion of the bill. However, this was not the case.

 From our side as organisations which work on these issues, we elaborated an
analysis of the law and requested several times to discuss our views with
the Committee which is studying the bill in the Legislative Assembly. We
felt it was necessary to open the debate, since the draft is in the hands not
only of the legislative Committee but also the Ministry of Foreign Trade.

The draft bill (*) was not just a copy of UPOV 1991. It allowed for the
granting of industrial patents [on plant varieties]. In this way, Costa Rica
would be complying with TRIPS by basing itself on the UPOV model without
analysing that the sui generis option under TRIPS Article 27.3(b) does not
have to follow UPOV and that it actually can and should be used freely by
different countries to protect their own national interests with regards to
plant varieties.

The bill has a very broad scope of application, covering all species and
genera. The requirements for protection leave Costa Rica’s farmers out of
the picture and only address professional plant breeders. This means that
farmers and other local communities will lose control of their rights and
production systems as a result of this law. The law promotes the
introduction and strengthening of industrial agricultural systems based on
genetic uniformity. The criteria for protection -- varieties must be
distinct, uniform and stable -- will enhance genetic erosion. The concept of
innovation embedded in the law draws from an industrial perspective only.

The rights granted under the bill give very strong commercial control over
reproductive material, seeds, varieties and plants. The breeder’s right
extends all the way to the product of the farmer’s harvest “obtained through
unauthorised use of the reproductive material or multiplication of the
protected variety, unless the breeder has had a reasonable opportunity to
exercise his right in relation to multiplication or the reproductive
material.” In the same manner, the breeder’s right extends to products
obtained directly from the harvest of a protected variety. That is to say,
the law makes obligatory what under UPOV is optional. In the Costa Rican
draft, the limitations UPOV offers with respect to the extension of the
breeder’s right to the harvest are eliminated.

All of these observations have been presented to the Legislative Assembly.

Given these criticisms, it is necessary to open the discussion to different
social sectors -- each with their own interests and collectively -- through
debates, roundtables and other fora. This would allow the decision-making
process to take account of the national interest.

However, on 10 November 1999, yet another bill was published in the official
journal through which Costa Rica was apparently seeking accession to UPOV.
According to representatives of the Ministry of Foreign Trade and the deputy
in charge of the legislative Committee on Intellectual Property, both this
new bill and the previous one described above, are up for discussion and
will not be approved without consultation among the different social sectors
which have an interest in the matter. Therefore, we are assured of an
opening to greater public participation in the discussion process.

The fact that the decision-making process on a draft law which goes against
the national interest has been opened up and its deadline extended is a step
forward for the organisations and individuals who have been working on these
issues. At the same time, we have gained space against foreign pressure
bearing down on our country. It is now up to us to formulate the right legal
instrument which will truly protect the naitonal interest with respect to
plant varieties.


For more information, please contact the authors through Isaac Rojas at:

COECOCEIBA-Amigos de la Tierra [Friends of the Earth]
Tel/Fax: (506) 223 39 25
Email: [EMAIL PROTECTED]

(*) The following comments are from “El patentamiento de formas de vida en
general y de las plantas en particular” [Patenting of life forms in general
and of plants in particular], Silvia Rodríguez, Isaac Rojas and Javier
Badilla (eds), September 1999. This document was presented to the
Legislative Assembly.


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