Interview with Silvia Rodriguez
Costa Rica's Biodiversity Law
Intellectual community rights are preeminent
to intellectual property rights
Johannesburg, South Africa
Dr. Silvia Rodriguez is chair of the board of directors of Genetic Resources Action International (GRAIN). GRAIN is an international non-governmental organization which promotes the sustainable management and use of agricultural biodiversity based on people's control over genetic resources and local knowledge. "I am a rural sociologist. I earned my Ph.D. in Wisconsin in development studies connected with rural sociology and environmental issues. I live in Costa Rica. I was born in Mexico but I married and went to live in Costa Rica. Now I am a Costa Rican. I work for the Universidad Nacional in Costa Rica." (Silvia Rodriguez)
In Motion Magazine: You are a professor at the university?
Silvia Rodriguez: Yes. I teach at the School of Environmental Sciences. We have been very active working with the indigenous people and local communities.
Specifically, I have been very engaged in the drafting of the Biodiversity Law in Costa Rica. It's a long story, but when the government was drafting the law there was a big quarrel among the different stakeholders so my university offered its space as a place of encounter to draft the law with the different stakeholders.
I chaired the commission. The law was enacted and one of the things that the law created was a National Commission of Biodiversity Management that is composed of eleven stakeholders. Six come from different ministries of the government and five from civil society. One seat belonged to the public universities - the Council of Public Universities. I was the member of the National Commission representing this council.
One of the things that we had to do in the Commission was to draft the procedures of access to genetic and biochemical resources. This is connected with what is called access and benefit sharing.
10 years ago in Rio (the 1992 U.N. Conference on the Environment and Development), they approved the Convention on Biological Diversity. One of the chapters in that convention states that natural resources were not going to be considered, anymore, as free humankind resources, but rather each nation state would have sovereignty to enact their own rules or procedures of access.
Before that convention, any enterprise, any researcher, any university could go to whatever place and pick up the biological resources. Since Rio, it is now the right of each state to develop those procedures. At the present the bio-diverse countries, that happen to be the countries that are not industrialized, have the opportunity to sell, if they want, their own resources. They are no longer free.
So, we have to draft those procedures and it is very difficult because of the nature of the biological resources: biological resources that can be reproduced; biological resources that are synthesizable.
In Motion Magazine: Why is it difficult?
Silvia Rodriguez: There are different circumstances. First of all, it's very easy to get into a country and take the resources out without permission. Secondly, if you need to come back because you have an important gene or chemical substance and you cannot reproduce it immediately, or synthesize it, or take it to your laboratory to reproduce it, you may need several tons of the material -- for example, a root, or the bark, or a leaf of a tree, so the country needs to regulate these entrances in a different way than if the interested researcher or enterprise needs only small amounts of biological material. Thirdly, perhaps the resources are not endemic to a region. Sometimes they are scattered all over -- within a country or in different countries. These laws of access and benefit sharing can be very difficult to draft and to enact because other communities can also have a stake in the resources and they also want to have a part of the cake. It's not only the right of a single person or a community to ask for a return, maybe other communities are also helping to protect that resource.
And lastly, most of the researchers and companies are not accustomed to this. As I've told you, it was only ten years ago when this condition came into being. Before that, they would enter in any country and take whatever they wanted. Some of them say these are impositions that go against science. There is a lot of resistance.
In Motion Magazine: Is Costa Rica one of the first to actually write this law?
Silvia Rodriguez: Yes, Costa Rica was one of the first and also the Costa Rican law is a comprehensive law that really takes the Convention on Biological Diversity all together, and not only some chapters. Some other countries have developed laws on access only. Costa Rica has developed a biodiversity law that has one chapter on access procedures, but also we have others on education, and so on.
In Motion Magazine: And the law was passed?
Silvia Rodriguez: Yes, the law passed.
In Motion Magazine: Was there a lot of input from different people around the country?
Silvia Rodriguez: Yes.
In Motion Magazine: How was that organized?
Silvia Rodriguez: It was a broad commission. We had the presence of the Federation of Peasants, the Federation of Indigenous Peoples, the environmentalists, industry, the academic world, and representatives of the two parties, the main political parties in the Assembly. It was a consensus law. Though sometimes consensus law brings some problems because you need to compromise.
In Motion Magazine: What were the opinions of the Federation of Indigenous Peoples?
Silvia Rodriguez: Speaking now in relation to intellectual property rights (IPRs), we could see that indigenous peoples don't want intellectual property rights on products they are selling. They believe that is not the way to really protect their resources.
On the other hand, in the enterprises world, in the pharmaceutical companies world, and so on, they want IPRs as a mechanism, they say, to distribute benefits because without IPRs they won't have income to distribute to the people. But if you look at history, IPRs are a very new condition and you don't need to have them to commercialize these resources. Especially since communities think that in doing so, in granting intellectual property rights, the real control of the resource flies away from the communities and flies away from the country.
And not only are communities the losers with IPRs. We have found that the idea of national sovereignty goes away when you lose that control, because the different companies, or whoever is accessing your resources, take control of it and in exchange they just give very little money.
And it is not only a thing of money to pay for the samples taken. It is also that in the samples, adhered to those, is indigenous knowledge.
There is a type of bio-prospecting called ethno-botanically guided - and there is a type called ecologically guided. Ecologically-guided is when an ecologist or a researcher goes into the forest and observes how the environment behaves. From that they imply what resources could be interesting for his/her company.
For instance, there is one example of an ecologist who was sitting down behind a tree and he saw that there was fruit coming down from the tree and the animals, specifically the nematodes, went around the fruit even though they were starving. (Though I don't know how he knew they were starving.) But, anyway, he said that even though they were starving the nematodes went around the feast and wouldn't eat it. The researcher thought, therefore, that maybe the seed had a nematocide inside. That's the way they look at nature and take ideas. That is called ecologically-guided lead.
But (an ethno-botanically guided lead is) when you have indigenous knowledge. Indigenous people are not only giving you the material resource but also their knowledge. That knowledge is different from the knowledge that it is used in the so-called scientific world where it can be individually appropriated. Traditional knowledge grows out of sharing because if one person makes a step in the knowledge of a plant or whatever, to test its advantages he/she uses the trial and error system that can go over trough generations, and little by little knowledge continues growing without being attributed to one single.
If isolated indigenous persons or even communities fall in the temptation to see this knowledge as individual property, that would kill their culture which is much more communally oriented and has its basis in sharing. They have an axiom that says "knowledge grows by sharing". IPRs are the contrary. With IPR's you just say that for 20 years nobody can use your innovation unless they pay for it.
In Motion Magazine: So how does the Biodiversity Law combat that? Does it say you can't have private ownership? Does it say resources have to be collectively owned?
Silvia Rodriguez: That's the key issue that we have been discussing here in the last two days. We have had this Biopiracy Summit, because we call bio-prospecting biopiracy. And it's not only a matter of legality, it's also a matter of the taking of some of the last resources that communities have. And those resources have to do with health and food.
These big pharmaceutical companies, these big seed companies, are taking away the information of those resources. With the advance of biotechnology what they want is either a gene or the chemical information. And then, they start competing with the community.
For example, there is the case of basmati rice in Thailand. That was a crop growing in Thailand but now it's competing with the production in Texas. It's a long story, but communities know that one of the problems in giving the intellectual rights to a third party is that they lose control of their own resources.
In Costa Rica, the Biodiversity Law gives space to the communities to draft their own intellectual community rights. They don't call it property rights because they associate property with individual possessions. They call it intellectual community rights. They say we can share all that we have. We can share all that we own. We can sell certain resources, but we cannot grant intellectual property rights.
The problem is that Costa Rica is a part of the WTO (World Trade Organization) where they say exactly the contrary. That is a big question and we know that the law that will be preeminent will be the one based on trade.
In Motion Magazine: The Costa Rica government will now have to argue this within the WTO?
Silvia Rodriguez: They should. If they are representative of their own people they should.
On the positive side, Costa Rica has some influence in the region. Already, there is the Central American Protocol of Access to Genetic Resources and it's been signed by different ministers of environment. This protocol says very clearly that community rights are preeminent to intellectual property rights.
|Published in In Motion Magazine, December 1, 2002.|
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