Intellectual property rights: a debate

Treaty Favors TNCs

Despite being cast as the lone villain in a global village, the United States had a surprising ally in opposing the controversial biodiversity treaty at the Earth Summit. Indigenous people from the tropical forests of the world took a similar position against the treaty in a meeting just before the official summit.

Like the United States, the Indians want a guarantee of respect for "intellectual property rights" or patents. This convergence highlights a fatal flaw in the convention on biological diversity.

The treaty will be signed by governments seeking control of burgeoning markets and profits in biotechnology. But it will bypass the only players who really count in the production and marketing process--indigenous people who know how to tap the great diversity of the tropical forests, and industries that can bring forest products to market.

Treaty advocates in Rio cited what they call a clear-cut case of "bioimperialism." The multinational pharmaceutical giant, Merck & Co., manufactures a treatment for glaucoma based on an alkaloid extracted from jaborandi, a bush found exclusively in the Amazon. Kayapo and Guajajara Indians, who first used the plant as a medicine, now harvest and sell the leaves to Merck under conditions anthropologists describe as "near slavery." In Germany, the alkaloid is refined and made into eyedrops that Brazil, among other countries, imports.

The most effective way to undercut this bioimperialism would be to make sure that those who first brought the jaborandi to the attention of international chemists--the Indians--receive patents and royalties. Instead, the biodiversity treaty compels the industrialized nations to compensate Brazil and other governments of developing nations where the raw materials are found.

Advocates portray the treaty controversy as another round in the battle between North and South. The North seeks to protect biological patents and profits while insisting that the South preserve its tropical forests. And the South protests attempts to lock up its genetic resources in patents and preserves while insisting that the North share the wealth generated from these raw materials.

Ironically, what this debate ignores is the new common ground that has emerged between the "North of the North"--the biotechnology and pharmaceutical industries of the developed world--and the "South of the South"--the indigenous people of the tropical forests.

Roughly three-quarters of the compounds in the modern global pharmacopoeia originally derived from plants "discovered" through research on the use of plants by indigenous people. The value of such genetic resources is predicted to reach $50 billion by the year 2000. Yet it is estimated that only 2% of the plants in the Amazon alone have been studied by scientists. The indigenous people of the tropical forests hold the keys to much of the rest.

Ethno-botanists and pharmacologists have only begun to tap the complex database of indigenous empirical knowledge. When their knowledge is used for profit, indigenous people say they should have just as much right to a patent for "intellectual property rights"--knowledge of how to use or process a plant--as the pharmaceutical companies now enjoy.

To be successful, a treaty on biodiversity would have to include not only the governments of the North and the South, but also indigenous people and companies that use their biological resources and knowledge. By giving all the power over biodiversity to governments--many of which, like Brazil, have a dismal track record of honoring either patents or indigenous property rights--the biodiversity treaty is set up to fail.

U.S. objections to the treaty cover only half of the equation--the "intellectual property rights" of biotechnology companies. The other half involves recognizing indigenous people's demand to those same rights.

Respecting the patent rights of both would provide a financial incentive for conserving and developing biodiversity at the ground level in the South. And royalties on patents would provide the return flow of hard cash from the North to the South that new markets for genetic wealth will generate.

Many delegates protested that it is too late to amend the biodiversity treaty. But a fundamentally flawed treaty should not have been signed in a rush to save the appearance that something was being accomplished at the Earth Summit. Mutual recognition of property rights would do more concrete good than all the high-minded rhetoric about preservation and equity in the current biodiversity treaty.

--Jon Christensen

Intellectual Property Rites

There has recently been a flurry of discussion around Intellectual Property Rights (IPRs, in the jargon of the day). At the recent Earth Summit the United States refused to sign a treaty on biodiversity because of proposed restrictions on patents of pharmaceuticals derived from plants. Curiously, however, the advocates (e.g. the anthropologists of Cultural Survival) are not limited to the profit-hungry corporations; there are those who see IPRs as a possible tool in giving indigenous people more control over the use of traditional lands.

It is not an auspicious time for the idea of intellectual property. Computer programs and data which can be copied and distributed electronically; the ubiquitous copy machines and faxes; audio and video (re-)recording devices; and countries which are not members of various treaty conventions on copyrights and the like (India, China, etc.); the use of "sampling" in music and "back-engineering" in technology; have all made a mockery of this extension of property relations into the realm of intellectual creation.

Even within the United States there is much conflicting law and practice. The original concept of copyrights has its origin in the idea that ideas must not remain the exclusive property of the "inventor," for, as Jefferson wrote, "one may take another's idea without leaving the first poorer" (his analogy of one candle lighting another comes to mind). Such "ownership" was limited to the author's life plus a fixed number of years; patent law explicitly requires the public statement of the invention and (often) the best way of producing the object, and allows the inventor a limited period of control. Some of the basic concepts of patents included denying patents for natural products, for inventions which were obvious or commonplace, and for other people's creations.

Recently, however, there has been a burgeoning of US patents and copyrights on more subtle concepts: processes and methods, as well as naturally occurring chemicals and substances. People (usually corporations, or their proxies) have recently been awarded patents on algorithms (which previously have been regarded as "discovered" rather than invented), and on "new" biological organisms and species (which are, in fact, only new combinations of previously existing genetic material). The relentless drive for profit and control has even led to such absurdities as the "look-and-feel" law suits of Apple and Microsoft dealing with concepts of controlling computers which neither party devised (Xerox's Palo Alto Research Center has that distinction). And in an apparent reversal of the idea of not patenting natural products, two corporations have been granted patents on chemicals (one derived, one synthesized) from the Brazilian Neem tree. Many of uses of chemicals from such plants have long been known to natives of the area for exactly the same reasons; granting patents would seem to violate the principle that commonplace uses may not be patented. Although the US has always regarded the rest of the planet as its hunting ground, this usurpation of indigenous discoveries would also seem to be patenting someone else's work.

Some recent advocates of IPRs argue that because many of the biological products are derived from plants known by indigenous people (and sometimes used by them for the same purpose) the original "discoverers" (and often inventors, for the use of these drugs is often the result of generations of effort)should be awarded commensurately. Some have also argued that food crops may be seen this way: the result of centuries of refinement and experimentation by indigenous people around the world. Some even see this archaic legal concept as a possible reinforcement of these people in their fight for survival and control over their lands.

Perhaps . . .but this begs the question of whether such "rights" are legitimate. It can be argued that even as such ideas are being hailed in the "third" world, they are being shown as outmoded impediments in the techno-sphere: information moves faster, and with more ambiguous ownership all the time. Indeed, given that human knowledge is such an enormously socialized (and historical) creation, no invention can be said to be independent. The need for capital to harness such creations to make a profit is indisputable, and we should never forget the crucial question: "quo vadis?" ("who gains?").

Nor am I hopeful about the possibilities of enforcing such putative rights as may be won by what-ever collective group. The ability to enforce such contracts is a precise measure of social power; groups with no power will find those rights insupportable. Countries like Brazil, with its long history of mistreatment of indigenous peoples, no less than the US, which has a long and almost unbroken record of ignoring its treaties with North American Indians, are not promising arenas for indigenous people to play out power relations. When one side writes the laws, owns the courts, and licenses the lawyers, as well as allowing the vast budgets of the corporations free play, the other side, even if it is able to buy a few attorneys, cannot be said to be an equal. Bakunin's comment is relevant: "The law, in its majestic impartiality, forbids the rich as well as the poor from sleeping under bridges, begging, and stealing bread."

Casting the importance of nature in terms of property relations strengthens the abhorrent concept that wilderness and primal nature deserve protection because they are--or might be--useful.

There are further problems with imposing this western model on traditional societies: just as some North American tribes were never granted recognition by the US government because they had no leaders, the requirements of marketing and legal representation of IPRs will impose unique stresses on indigenous communities. Given movements towards control of traditional music and copyrighting materials, etc., the only aspects of traditional life that will survive may well be corporation's names, and a few patented commodities. Imagine a scenario in which some village elder sues another for copyright violations for performing a traditional song; perhaps in the name of ancestral spirits.

Such talk of "rights" also ignores some crucial questions about what the concept means: such "rights" are certainly not immutable things handed to us by nature; to the extent that there are any rights, it is because the common folk have fought for them. They were not, and never will be, given to us by benevolent masters. Those rights have always proved to be worthless in the absence of people willing to defend themselves (often outside of any legal process).

To frame our thinking about the exploitation of the other parts of the world in terms of ethics among property owners is to ignore the imperative of business: to make money. To try to use the very tools of business (law, property rights) to stop business, can't work.

It seems most unlikely that the road to human freedom and dignity passes through a courtroom and patent office. I regret that I have no better ideas for helping the poor people of such "developing" parts of the world as Brazil, but the idea that the concept of property, extended to more parts of the world, and to new "objects," will help preserve the parts not yet destroyed by the world capitalists, is not a sensible one. Perhaps this can be a tool of limited use, but to present it uncritically does us all a disservice.

--Primitivo Morales

REPLY TO PRIMITIVO MORALES

Maybe this is not a very auspicious time (or place) to speak in favor of intellectual property. Of course, the argument could be extended. Across the political spectrum, we seem to be facing the 21st century with ideas inherited from the 19th century. It's fun to run in ideological circles, dancing with romanticism, communism, anarchism, nihilism, capitalism, post-this-and-thatism, careering from optimism to pessimism and back again, and throwing up our hands when pressed for direction. But have we learned anything in the 20th century? Perhaps something about pragmatism.

In the first place, the argument in favor of recognizing the intellectual property rights of indigenous people was made by them, not us. Of course, one can trace the concept's history to the door of capitalism. But it is a system most indigenous people have trucked with quite extensively over the last century or more.

Intellectual property rights may be an argument of the moment. More likely, indigenous people see property as a tool they can grasp to increase their own power. In any case, the demand for intellectual property rights emerges logically from their demands for recognition of their property rights in land as well, which have also been an inconvenience to some. Now they seek recognition of their knowledge, which until lately usually has been devalued even as it has been used by profiteers.

Unfortunately, pharmaceutical companies such as Merck and national governments such as Costa Rica are quickly cutting deals leaving out the local people who live in the tropical forests that are the sources of much of the world's biodiversity. And why not? The messy world of people vying for life in some backwoods is really just so much trouble. You're so right. There are too many practical problems with identifying the "inventors" of traditional knowledge, not to mention compensating often fractious communities.

But indigenous people have an inconvenient way of asserting themselves, especially it seems as we confront the millennium with such an intense love-hate relationship with technology and the nation state. Even as many late 20th century thinkers continue to see indigenous people somehow representing a state of society outside the market system, their demand for property rights presents a nagging problem.

Perhaps global positions--such as worshipping or demonizing the market in all cases--attempt to reach too far. Property rights can be a basic means of preserving local control. But property rights are clearly not a panacea, as history shows.

Information--and for that matter all kinds of property--may want to be free, as they like to say in Silicon Valley at the end of the 20th century. But property has costs and consequences and if you're lucky maybe benefits and profits. As a writer, marketing my words, I stand on the side of intellectual property rights, even though I will write for free. There are more important things than money and property. But that doesn't mean we have to turn our backs on them.

--Jon Christensen