“The relentless march of intellectual property rights needs to be stopped and questioned. Developments in the new technologies are running far ahead of the ethical, legal, regulatory and policy frameworks needed to govern their use. More understanding is needed – in every country – of the economic and social consequences of the TRIPs Agreement. Many people have started to question the relationship between knowledge ownership and innovation.Alternative approaches to innovation, based on sharing, open access and communal innovation, are flourishing, disproving the claim that innovation necessarily requires patents.”
– UNDP Human Development Report 1999
Trade-Related Aspects of Intellectual Property Rights
The agreement on Trade Related Intellectual Property Rights (TRIPS) universally standardized IPRs in 1999 (Siganporia, 2007).
The agreement was negotiated over seven years following the transformation of the General Agreement on Tariffs and Trade (GATT) into the World Trade Organization (WTO) during the Uruguay Round. The TRIPS Agreement mandates that WTO member states enforce revenue collection mechanisms for the use of protected IPR (Marinova & Raven, 2006).
TRIPS require member states in the WTO to conform their IPR laws, regulations and procedures to universalize life form patenting (Godbole-Chaudhuri, Srikantaiah & Van Fleet, 2008).
TRIPS reduce the flexibility of countries to design their own appropriate laws (WHO, 2001). Violation of TRIPS makes member states vulnerable to trade sanctions through the WTO’s dispute settlement system. Thus, TRIPS may easily be described as a coercive force.
TRIPS are based on US patent laws (Siganporia, 2007).
The US PTO defines patents as ‘the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States’ (US PTO, 2005) or any other territory covered by the patent law. The 1980 US Supreme Court ruling on Diamond V Chakrabarty allowed for the first patenting of life forms (Diamond V Chakrabarty 447 US., 303). The judgment stated that, “Anything under the sun that is made by man” and “things of nature that occur by man’s handiwork” are patentable.
According to leading US lawyer Andrew Kimbrell (as cited in Shiva, 1997, p. 19-20),
“In coming to its precedent-shattering decision, the court seemed unaware that the inventor himself had characterized his creation of the microbe as simply ‘shifting’ genes, not creating life.”
Shiva (p. 20) elaborates on the question of life form patenting stating that universities and corporations do not create genes, but shuffle genes. The recombinant DNA technique is a biochemical manipulation and an adjustment to the biological process. It intervenes in the normal processes by which the strains of bacteria exchange genetic information. When biologists claim patents on genetic they declare that 95% of DNA is “junk DNA”, which means that it’s function is unknown.
Another problem associated with basing universal IPR regimes on US laws is that US law allows for a distortion on the interpretation of what constitutes “prior art” (Shiva, 2000b). Discoveries made in the US are filed regardless of other patents that exist and are applied in other parts of the world. The non-recognition of “prior art” in U.S. patent laws facilitates the phenomenon of biopiracy.
TRIPS Article 27,5,3(b) mandates that signatory countries permit patenting of micro-organisms and micro-biological and plant varieties.
This article is widely criticized by developing countries because it is seen to negate substantial ethical, ecological and economic consequences associated with patenting life forms (Marinova & Raven, 2006; Siganporia, 2007). Shiva (2000b, p. 89) says the article is seen to discount “… the differences in ethics and value systems of Third World nations, where life is sacred and exempt from patenting.” According to Shiva, TRIPS has been at the heart of worldwide resistance to the WTO.
The EU and US have coercively imposed the patenting of biological resources through forced alterations in national patent laws (GRAIN, 2007).
When the Indian government did not implement TRIPS due to parliamentary protests the US initiated a WTO dispute and ruled in 1998 that India’s non-compliance was illegal according to GATT (Shiva, 2000b). Shiva (p. 89) comments on the ruling saying that, “This ruling … is in essence a decision against Indian democracy.”
Developing countries have demanded revision of the article that mandates life form patenting to create a more balanced IPR system (Shiva, 1997). However, the effort to enact the right to review (incorporated in TRIPS), that may lead to TRIPS amendment, has been blocked by the US and EU. The Indian government submitted a discussion paper to the TRIPS council in Geneva that explained:
Patenting of life forms may have at least two dimensions.
Firstly, there is the ethical question of the extent of private ownership that could be extended to life forms. The second dimension relates to the use of IPRs concept as understood in the industrialized world and its appropriateness in the face of the larger dimension of rights on knowledge, their ownership, use, transfer and dissemination.
Informal systems, e.g. the “shrutis” and “smritis” in the Indian tradition and grandmother’s potions all over the world get scant recognition. To create systems that fail to address this issue can have severe adverse consequences on mankind, some say even leading to extinction. (World Trade Organization, 1999)
This discussion paper has been ignored by the US and EU although Article 2 of TRIPS allows for the exclusion of patents on life on ethical and ecological grounds (Shiva, 1997 p. 95). However, the right to review has been blocked and diverse perspectives have not been included.
Shiva explains that for democratic legitimacy the implications for life patents must be publicized and the views of diverse groups heard prior to implementation.
According to the WTO, developing countries owe IPR royalties in the amount of US60 billion per year to developed countries (Finger, 2002, p. 13). A growing body of literature inquires whether patents guarantee financial benefits to developed countries and inhibit economic progress in marginalized societies (Godbole-Chaudhuri, Srikantaiah & Van Fleet, 2008; Marinova & Raven, 2006). According to Finger (2002, p. 13–14):
More simply, it (TRIPS) has the effect of creating claims by intellectual property owners against intellectual property users. As developing countries are more often users than vendors of intellectual property, the impact is a significant economic obligation on developing countries – users owe royalties, copyright fees, etc. on the use of knowledge not previously protected in their countries by patents, copyrights, etc.
A common critique of TRIPS is that it is oriented towards the recognition of Western science and societies and thus fails to compensate indigenous peoples for their knowledge (Godbole-Chaudhuri, Srikantaiah & Van Fleet, 2008; Shiva, 1997; Shiva, 2000b; Siganporia, 2007).
TRIPS does not recognize IK nor protect the needs of indigenous peoples.
According to WHO (2001),
“ (T)he TRIPS standards for IPR protection are largely based on the models for intellectual property protection, which existed in industrialized countries; these models are not necessarily appropriate for developing countries.”
Shiva (1997, p. 10) comments on the exclusion of indigenous peoples written into TRIPS Article 27.1 which states that IPRs will only be recognized when they are capable of industrial application. This means that knowledge and innovation that is designed to meet social needs is excluded if it does not generate profits. Shiva (1997, p. 10) writes that:
This immediately excludes all sectors that produce and innovate outside the industrial mode of organization. Profits and capital accumulation are the only ends of creativity; the social good is no longer recognized. Under corporate control, there is “deindustrialization” of small-scale production in the informal sectors of society.
The contradictions between TRIPS and many countries needs are evident in the absence of indigenous livelihoods and perspectives. The most notable absence from the TRIPS agreement is the lack of any mechanism for addressing collectively held intellectual property as is common amongst traditional cultures.
According to former World Bank vice-president and chief economist Joseph Stiglitz (2007),
“TRIPS reflected the triumph of corporate interests over billions of people in the developing world.”
Public health experts and consumer groups have generated mainstream criticism of TRIPS over the consequence of reduced access to modern medicines such as urgently needed anti-retroviral drugs for HIV/Aids in developing countries (WHO, 2001). WHO estimates that a third of the world population lacks regular access to the medicines they need.
A Monsanto representative commented on the TRIPS negotiations calling it:
…absolutely unprecedented in GATT. Industry has identified a major problem in international trade. It crafted a solution, reduced it to a concrete proposal, and sold it to our own and other governments…. The industries and traders of world commerce have played simultaneously the role of patients, the diagnosticians, and the prescribing physicians. (Enyart, 1990, p 54-56)
The comment made by a Monsanto representative, and quoted by Enyart, is indicative of structural violence.
When ‘industries and traders of world commerce played simultaneously the role of patients, the diagnosticians, and the prescribing physicians’ they left little room for dialogue with any stakeholders. The statement indicates a hegemonic decision-making process troubling to the problem of how to engage indigenous peoples in dialogue regarding IPRs over PGR.
Sachs (1999, p. 17) wrote in The Economist that:
The global regime of intellectual property rights requires a new look. The United States prevailed upon the world to toughen patent codes and cut down on intellectual piracy. But now transnational corporations and rich-country institutions are patenting everything from the human genome to rainforest biodiversity. The poor will be ripped off unless some sense and equity are introduced into this runaway process.
From Sachs and Stiglitz description of TRIPS we can deduce that the agreement is an example of a global agreement where powerful Multi-National Corporations (MNCs) undermine democratic legitimacy through monopoly control over food resources.
The exclusion of diverse constituencies has fatal consequences in the context of limiting access to seeds. In light of the criticisms lodged against TRIPS it may be argued that life form patenting promotes an impoverished understanding of the necessary limits to intellectual property.
Patenting and Intellectual Property Rights
The concept of Intellectual Property Rights (IPRs) originated in Florence, Italy in the early 1400s (Mgbeogi, 2006).
Since this time, legal frameworks have evolved to protect the right to ownership over inventions, ideas and concepts (Godbole-Chaudhuri, Srikantaiah & Van Fleet, 2008). IPRs typically provide monopolistic rights over the production, use, sale and profit of unique creations for a specified period of time (Marinova & Raven, 2006). The intention of IPRs is to generate incentive for invention and innovation through temporary knowledge monopolies.
A monopoly is a market distortion designed to compensate for the market failure of underinvestment in innovative knowledge (Siganporia, 2007).
In short, patents have three functions: they grant the ‘right to exclude’, they recognize ingenuity and they allow for a monopoly over economic benefits. According to Marinova and Raven (2006) IPR regimes have failed to equally apply these functions to IK even though IK systems result from ingenuity and creativity, and should generate economic benefits.
The very existence of IK, whether documented or oral, should serve as a strong prompting for the anticipation of unprecedented inventions (Chowdhury, 2004).
The failure of IPR regimes to recognize and include indigenous peoples facilitates false claims of innovation and the misappropriation of IK (Eyzaguirre & Dennis, 2007). The two central provisions of patenting, namely, recognition of authorship and protection of economic benefits have not included indigenous peoples (Marinova & Raven, 2006).
Characteristics of IK systems pose obstacles to its valuation and protection within IPR regimes. The granting of IPRs depends on proof that the innovation is novel and non-obvious (Godbole-Chaudhuri, Srikantaiah & Van Fleet, 2008; May & Sell, 2006). IK is collectively owned and intergenerational and therefore difficult to identify and isolate as a specific ‘discovery’ (Oguamanam, 2004).
Innovations in genetic resources are often the product of long-term collective efforts of local communities through selective breeding, seed saving and exchange (Howard & Nabanoga, 2007). According to Brush (2007) and Salazar et al. (2007) no single person can claim to be owners or originators of the innovation process that results in genetic resources.
The Life Patent and the Life Science Industry
The “life science industry” resulted from corporate mergers of pharmaceuticals, biotechnology, agribusiness, food, chemicals and cosmetics (Bongo, p. 19). Mergers and acquisitions by the life science industry in 1998 were valued at 2.4 trillion dollars.
The enormous shifts in capital are attributed to “the new world currency”: the life patent.
According to Flint (cited in Bongo, p. 100), the life patent is a,
“piece of property information relating to a biological process and generally takes the form of a piece of genetic code or genetic engineering that has been subject to intellectual property laws of the first world.”
Life patents grant so-called ‘gene giants’ the legal right to determine who gets access to genetic resources and at what price. Hence, the current private sector reflects a monopoly of a few firms dominating the world market in seed commercialization.
Critical scientists, local industries and nongovernmental organizations (NGOs) in India, who oppose the concentration of plant and animal breeding rights, accuse the biotechnology industry of threatening biodiversity and IK (Dankelman et al, p. 8).
The biotechnology industry, supported by various governments, intends to genetically engineer uniform plants and animals on a large scale. The impact of distributing large-scale uniformity in a small-selection of seeds that do not reproduce themselves, but need external inputs, creates the conditions necessary for biodiversity loss and indigenous marginalization.
Khor (2003) claims that patenting is leading to an even greater concentration in a few global corporations of control over the world’s food crops such as maize, potato, soybean and wheat, giving them enormous economic power.
Six transnational agrochemical/seed corporations and their biotech partners (Mendel Biotechnology and Evogene) control 201 or 77% of the 262 patent families (both issued patents and applications). They are:
Three companies – DuPont, BASF, Monsanto – account for 173 or 66%. The public sector has only 9%. These companies also monopolize the research and output in the field of transgenic plants (Sahai, 2004).
The impacts of the universalized standardization of life form patenting of PGR is central to contemporary debate over indigenous rights, corporate accountabilities and ethical scientific research (Hayden, 2003).
Godbole-Chaudhuri, Srikantaiah and Van Fleet (2008) raise salient questions including: whose interests do IPRs serve to protect and to what degree should rights over knowledge be extended?
Siganporia (2007, p. 10) answers the question in writing that IPR regimes serve to protect the interests of corporations and exclude indigenous communities:
Corporations make tremendous profits from commercializing indigenous resources, yet they share no benefits with the indigenous communities who are the purveyors of these knowledge systems. The exclusion of indigenous cultures through IPR regimes is detrimental to the welfare of these communities.
Siganporia’s asserts that exclusion has a negative impact on indigenous peoples. The issue of exclusion leads to the problem of how to engage indigenous peoples in dialogue regarding IPR regimes over PGR.
Shiva (2011, Right Livelihood Award) has commented extensively on the monopoly control over PGR:
The primary threat to nature and people today comes from centralising and monopolising power and control. Not until diversity is made the logic of production will there be a chance for sustainability, justice and peace. Cultivating and conserving diversity is no luxury in our times: it is a survival imperative.
The conservation of diverse cultures and biodiversity is intimately linked to sustainability, peace and justice. According to Shiva, the monopoly on seeds has created conditions that threaten the survival of ‘nature and people’.