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.