Trips, CBD and Traditional Medicines: Concepts and Questions. Report of an ASEAN Workshop on the TRIPS Agreement and Traditional Medicine, Jakarta, February 2001
(2001; 88 pages)
Table of Contents
View the documentEXECUTIVE SUMMARY
View the documentI. INTRODUCTION
Open this folder and view contentsII. CONTEXT
Open this folder and view contentsIII. KEY INTERNATIONAL AGREEMENTS
Open this folder and view contentsIV. IPR & TRADITIONAL MEDICINE: MISMATCH
Open this folder and view contentsV. CONCEPTS, OBJECTIVES AND CONFLICTS
Open this folder and view contentsVI. OPTIONS AND CHOICES
Open this folder and view contentsVII. POLICIES AND STRATEGIES
Close this folderVIII. EXAMPLES
Close this folder8.1 Costa Rica's Biodiversity Law and Bioprospecting Agreements
View the document8.1.1 The law
View the document8.1.2 Difficulties and challenges
View the document8.1.3 Bioprospecting agreements
View the document8.2 Legal Protection of Traditional Medicine and Knowledge in Thailand
View the document8.3 Philippines: Acts on Indigenous Peoples' Rights & Traditional Medicine
View the document8.4 The OAU's Model Law on Community Rights and Access to Biological Resources
View the document8.5 The Community Protocol and the draft ASEAN Framework Agreement on Access to Biological and Genetic Resources
View the documentANNEX A - Workshop Agenda
View the documentANNEX B - Opening Remarks
View the documentANNEX C - Selected Articles of the Convention on Biological Diversity
View the documentANNEX D - List of Participants

8.1.2 Difficulties and challenges

Some of the main difficulties and challenges that Cost Rica has faced in the past:

uncertainty and value

It is important to realize that:

• Bioprospecting is very uncertain; the word bioprospecting has been derived from prospecting for oil and minerals, but bioprospecting, or prospecting of biological or genetic resources and even of indigenous knowledge, is quite different, because it presents even greater risks; only a few products have reached the clinical or even pre-clinical stage, even though a lot of samples have been collected from all over the world since the mid-1980s.

• When determining the value of genetic resources, it should furthermore be born in mind that the significance of one sample in the overall chain of efforts and costs to develop a new product or a new drug is very limited. So unless one can add value to these resources, for instance by adding traditional knowledge, their value, and therefore the benefit that can be obtained, is limited.

• Technology has had a paradoxical impact on the value of biological resources. On one hand, new technologies increase the potential commercial use, and therefore the economical value, of biological resources, while the cost of screening these materials and/or isolating active ingredients is decreasing. On the other hand, technological developments have reduced the amount of material needed for research purposes, and may thereby have facilitated illegal collection and use. So while, in general, the economic value of genetic resources is increasing, the commercial value of any particular extract or sample is not.

rights and ownership

The CBD does not address the question of ownership; it only establishes (in Article 3) that States are sovereign over their genetic and biological resources. But sovereignty, national patrimony and ownership are different concepts; so it is important to clearly define ownership in the national law. In fact some of the most common problems arising when negotiating benefit sharing agreements are related to the lack of clarity on ownership.

In Costa Rica, it was decided to divide the property rights: genetic and biochemical resources belong to the State, while, normally, the (wild) biological resources belong to a private person. In other words, an individual can own an orange, but the genetic information within that orange belongs to the State. The same, fairly complicated system has also been developed in some other countries, such as Colombia.


Another notorious pitfall is over-regulation:

• The complexity of bioprospecting and access regulations creates a lot of problems; if nobody can comply with the regulations, most likely they will be not enforced. High transaction costs, very bureaucratic procedures etc. may also contribute to a lack of enforcement.

• Access legislation may negatively affect basic research, it may have negative impact on local universities, research institutions etc; yet such basic research is very important, including also for conservation and for sustaining biodiversity.

defeating the purpose?

The ultimate goal of access and benefit sharing should be clear. If the main aim is to make money, it is bound to fail. In case the objective is for instance to create national capacity, a value added industry, or the conservation of natural biological resources, then it is necessary to make connections and to develop coherent policies on access, biodiversity conservation and sustainable use. These policies should include access to knowledge and to traditional medical products.

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