Abstract
This chapter analyzes the background and history of the implementation of Access and Benefit Sharing (ABS) regimen under the Convention on Biological Diversity and other international related instruments in Costa Rica. The chapter describes the administrative and contractual practices of over 650 ABS permits, including two granted for the category of commercialization of genetic resources. It also responds to a set of innovative questions and concerns related to the scope, concept and meaning of utilization of genetic resources, provider and user rights in accordance to the legal framework and permits granted, monitoring of the utilization of genetic resources and associated traditional knowledge (aTK) and incentives (a recent labeling scheme) linked to the commercialization of products in compliance with ABS legislation. This research also addresses new and emerging issues such as treatment of genetic information (digital sequence information, DSI) and the implementation of an on line system for the application, decision making and reporting of ABS activities. Lessons learnt from this practical experience are also highlighted.
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Notes
- 1.
MINAE (2000).
- 2.
Ibid at 22.
- 3.
It should be mentioned that Costa Rican BL was awarded in 2010 the gold price for the BL as an exemplary law implementing the Convention on Biological Diversity by the World Future Council (see http://www.worldfuturecouncil.org/fileadmin/user_upload/PDF/Survey_of_Future_Just__Biodiversity_Policies_and_Laws.pdf).
- 4.
Sittenfeld et al. (2003), p. 197.
- 5.
Ibid.
- 6.
The Commission of International Affairs of the Parliament in August 2019 issued a negative report (Dictamen Negativo) for the ratification of the Protocol. However, the Government submitted the Protocol for approval again. This time, a different Committee of the Parliament, by consensus issued a positive (Dictamen Positivo) report recommending the ratification of the Protocol.
- 7.
Among the legal arguments submitted were the transfer of legal powers to the civil society and the creation of different bodies within the MINAE which were considered against the Constitution.
- 8.
Constitutional Court, Voto (Ruling) No. 01113 of June 2006.
- 9.
The BL already covers migratory species. This interpretation of CONAGEBIO seems to expand the scope, including research done in the country with foreign material (e.g. imported bacteria).
- 10.
- 11.
Gobierno de Costa Rica (agosto del 2019), p. 3.
- 12.
Ibid, p. 4.
- 13.
Cabrera Medaglia (2009), pp. 243–270.
- 14.
Bill No 21807 of February 2020.
- 15.
Only one university, the University of Costa Rica has developed its own ABS regulations: See Reglamento de Acceso a la BiodiversidadenActividades de Docencia, Acción Social e Investigación Sin Fines de Lucro de la Universidad de Costa Rica published in La GacetaUniversitaria, No 13-99 of 1999.
- 16.
Pers. comms, Dr. Adam Karremans, Coordinator, Institutional Biodiversity Commission, 19 February 2020.
- 17.
- 18.
The BL and regulations use the term ‘interesado’ in Spanish or interested in English. This can be considered as equivalent to the word ‘user’ or ‘applicant’. See Decree 31514, article 6 p (definitions).
- 19.
Defined as: natural or legal person, foreign or national, who jointly with the interested and the main researcher, participates in the research and development of the project (Art. 6 e Decree 31514).
- 20.
This is not the Internationally Recognized Certificate of Compliance mentioned by the Nagoya Protocol (Art. 17) but may also provide legal certainty about the rightful acquisition and transfer of the materials.
- 21.
This process has not been finalized yet, so in practice is not applicable.
- 22.
However, at least in one case the TO did not require a royalty to be established for a commercial use permit. For the CNA a provision included in the PIC to later negotiate a royalty was accepted.
- 23.
For a detailed study of the legal system, see Cabrera Medaglia (2003).
- 24.
See R-CM-FN-001-2018-OT of February 2018, R-CM-INBio-03-2006-OT March 2006 and R-CM-FN-002-2018 of September 2018.
- 25.
- 26.
Cabrera Medaglia (2009), p. 243.
- 27.
The BL provides as one of requirement of access the definition and ways how access activities can contribute to the ecosystems and species, but there are not further references to BS components to be targeted to conservation (Art. 63).
- 28.
Law No. 8686 published in La Gaceta November, 26 2008.
- 29.
Decree No. 34958-MINAET-COMEX, regulation to the article 80 of the BL limits the opposition grounds to the lack of compliance with the patent requirements. Likewise, in the case of non-compliance (with what? the submission of the certificate) a fine is established. However, the processing of the applications seems to be allowed even if no certificate of compliance was produced. A constitutional action was brought against this regulation and the decree was also annulled by the Constitutional Court (Constitutional Court resolution No. 17058-2012 of December, 5, 2012).
- 30.
A legal action was brought before the Tribunal Contencioso Administrativo by a NGO (FECON) claiming the illegality of the lack of a mechanism to guarantee compliance with the article 80 of the BL, File (Expediente) No.16-008622-1027-CA October 2916not yet resolved.
- 31.
Pers. comms with Karen Quesada, head of the Patent Office of Costa Rica.
- 32.
Through the resolution of 8.07 am on July 30, 2009, the application was rejected due to the lack of an invention unit; lack of clarity and because the claims are related to treatment methods which are excluded from patentability according to article 1 of Law N° 6867.
- 33.
References
Book Chapter
Cabrera Medaglia J (2009) The role of the National Biodiversity Institute in the use of biodiversity for sustainable development –forming bioprospecting partnership. In: Kamau E, Winter G (eds) Genetic resources, traditional knowledge and the law, UK and USA. Earthscan, pp 243–270
Reports/Studies
Cabrera Medaglia J (2003) El sistema sui generis para la protección de losconocimientostradicionales: un estudio de la Ley de Biodiversidad de Costa Rica y normativarelacionada”, Document submitted to Informal Panel of WIPO on national experiences about sui generis systems of protection, Geneva, 9 July 2003
Gobierno de Costa Rica (agosto del 2019) Encuestasobremedidasnacionales que abordan la distribución de beneficiosderivadas del uso de DSI [Questionnaire sent by the CONAGEBIO in response to the process of preparation of an expert report on DSI]
MINAE (2000) Estrategia Nacional de Conservación y UsoSostenible de la Biodiversidad Obando Vet al (ed.) SINAC-INBio, San José, http://www2.inbio.ac.cr/es/biod/estrategia/Paginas/PDF/Conservaci%BEn/ENBCRfinal.pdf. Accessed 23 Nov 2020
Sittenfeld A, Cabrera J and Marielos M (2003) Bioprospecting frameworks: Policy issues for island countries. Insula Internacional Journal of Island Affairs, February, Year 12. No 1
Legal Documents
Biodiversity Law No. 7788 published in the Official Gazette (La Gaceta) No. 101 of May 27, 1998
Law No. 8686 amendment to the Patent, trademark and industrial design Law, published in La Gaceta November, 26 2008
Plant Variety Protection Law, No. 8631 published in La Gaceta March, 19 2008
Decree No. 31514-MINAE of December 15, 2004 General Access Procedure
Decree No. 33677-MINAE of 27 April 2007 on access to genetic resources found in ex situ conditions
Decree 39341-MINAE of 2016 on the procedures for the imposition of sanctions for illegal access
Decree No. 34958-MINAET-COMEX, of 2008 annulled by the Constitutional Court
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Cabrera Medaglia, J. (2022). New ABS Legislation and Practice in Compliance with the Nagoya Protocol: Current Situation and Perspectives in Costa Rica. In: Chege Kamau, E. (eds) Global Transformations in the Use of Biodiversity for Research and Development. Ius Gentium: Comparative Perspectives on Law and Justice, vol 95. Springer, Cham. https://doi.org/10.1007/978-3-030-88711-7_5
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