History: Colombia regulated (enacted) the Andean Pact's Decision 344 on Industrial Property by Decree 2679 in December 1993 and by Decree 117 in January 1994.
Membership: WIPO, Paris
Provisions until now: As under the common patent regime for Andean Pact countries, Colombia excludes animal species and races from patent protection. Plants and plant varieties are, in theory, patentable. (However it is not clear whether the terms of UPOV 1978, which excludes patent protection of varieties of species covered by Colombia's breeders' rights legislation, or the terms of Andean Pact Decision 345, which is modelled on UPOV 91 and permits patenting, rule.) PLANT VARIETY PROTECTION History: Colombia enacted its Plant Breeders' Rights legislation by Decree 533 of 8 March 1994 as implementation of Decision 345 of the Andean Pact.
Membership UPOV: Colombia was admitted to the Union in September 1996 under the terms of the 1978 treaty.
Provisions: Scope extends to harvested materials. Research and farmers' exemptions are allowed. However, the research exemption is limited in the case of "essentially derived varieties". ACCESS TO GENETIC RESOURCES Decision 391 of the Cartagena Commission establishing a common regime for access to genetic resources became legally binding in Colombia, as in the other Andean Pact countries, when it was published in July 1996. The Decision has not been fully regulated yet in Colombia. However, by Decree 730 of March 1997, Colombia named its Ministry of the Environment as the competent national authority for implementation of Decision 391. Furthermore, Resolution 620 of July 1997 establishes internal procedures for the Ministry to process requests for access. The Legal Office of the Ministry of Environment is in charge of carrying out evaluation procedures and taking decisions. While public and private research groups can take part in the evaluation of applications, there is no obligatory participation of any kind.
In the meantime, Colombia and the other Andean Pact countries are working out national and Andean legislation which fully incorporates and further develops the rights and obligations spelled out in the common regime. This involves, in particular, measures to enhance the negotiating position of indigenous, Afro-American and local communities and the development of a "special regime" which harmonises measures to protect indigenous and traditional knowledge in the implementation of the common access rules (see below, under 8j).
In the Colombian legal system, the State retains ultimate dominion over natural resources, which hampers the devolution of real sovereignty to local communities. Further, implementation of the Andean Pact access regime at the national level ignores the obligation in Colombia's Constitution for the State to consult communities on projects with social and environmental implications. RIGHTS RELATED TO CBD ART. 8(J) In Colombia, there is a clear distinction between indigenous peoples who inhabited the territory prior to the arrival of the Spaniards and the black or Afro-American communities. Both avail of collective rights to land titles and control over natural resources.
Article 8j of the Convention on Biodiversity is being developed towards implementation under the framework of the Andean Pact regime on access (and not directly, as fast, under the CBD itself). Transitory measures 8 and 9 call for national studies and the harmonisation of means to protect traditional knowledge in the Andean Pact. Harmonisation may take the form of a special regime.
Civil society groups in Colombia are insisting that the special regime to protect traditional knowledge associated with biodiversity be anchored on holistic perspectives that do not separate physical resources from knowledge (intangibles) or dissociate any of the rights that intrinsically and inseparably belong to indigenous peoples. They are trying to develop/maintain an integral approach regarding territory, culture, self-determination, knowledge and collective rights. OTHER LAWS Colombia has a draft law on the Protection, Conservation and Use of Biological Diversity and Genetic Resources. It provides a regulatory framework for the management and sustainable use of biodiversity, including priorities and specific tasks for different government agencies. It also calls for the protection and compensation of local communities who develop and maintain genetic materials and innovations through intellectual property or other mechanisms.
SOURCES - Walter Jaffé and Jeroen van Wijk, The impact of plant breeders' rights in developing countries: debate and experience in Argentina, Chile, Colombia, Mexico and Uruguay, IICA/University of Amsterdam, 1995. - Instituto Colombiano Agropecuario, Legislación sobre Protección de los Derechos de Obtentores de Variedades Vegetales, ICA, Santa Fé de Bogotá, Julio 1995. - Decisions 344, 345 and 391 of the Junta del Acuerdo de Cartagena, Gazeta Oficial. - Kerry ten Kate, "The Common Regime on Access to Genetic Resources in the Andean Pact", Biopolicy, Vol 2, Paper 6, 1997. - Proyecto de Ley por lo cual se regula la Protección, Conservación y Uso de la Diversidad Biológica y los Recursos Genéticos, borrador del 1994. - Margarita Flores, personal communications, 28 August 1997 and 26 January 1998 - "Legal Debate - International Seminar - Development of the Andean regime regarding: access to genetic resources, identification of biodiversity and its benefits, elements for national studies regarding a regime for protecting traditional knowledge", ILSA/WWF/Semillas/IGA, Bogota, Colombia, 1997.
Further information about the situation in Colombia or the Andean Pact countries can be obtained from: Ms Margarita Flores, ILSA - Fax: (57-1) 2884854 or Email: