Posted by [EMAIL PROTECTED] : BIO-IPR docserver * English translation below * [Spanish deleted] ________________________________________________________ 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 ________________________________________________________ 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. _________________________________________________________ ABOUT THIS LISTSERVER -- BIO-IPR is an irregular listserver put out by Genetic Resources Action International (GRAIN). Its purpose is to circulate information about recent developments in the field of intellectual property rights related to biodiversity & associated knowledge. BIO-IPR is a strictly non-commercial and educational service for nonprofit organisations and individuals active in the struggle against IPRs on life. The views expressed in each post are those of the indicated author(s). ABOUT GRAIN -- For general information about GRAIN, kindly visit our website http://www.grain.org or write us at <[EMAIL PROTECTED]>. Reprinted under the Fair Use http://www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law. <><<<<<>>>>><><<<<> Tsonkwadiyonrat (We are ONE Spirit) http://www.tdi.net/ishgooda/ <><<<<<>>>>><><<<<>
