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No matter how profound and elegant the discussion of biopiracy, patenting, and international trade agreements, it always comes down to talk of theft, responses to theft, justifications of theft, and efforts to insure the continuation of theft. It always seems to be a matter of attitude and public relations "spin."
The association of patents and thievery has a long history. When Columbus sailed out to "discover" a world that was new to him, he was carrying letters patent from the King and Queen of Spain. Those letters patent, which would make the discovery and the exploitation of new lands legal, were issued for the benefit of Spain and granted by authorities whose right to make such grants--if we can believe the spin-meisters of the day-came directly from God.
Why bother to issue such letters patent? Ecologist/activist Vandana Shiva has noted that what was necessary for the invasion and exploitation of other people's land, what was essential to the colonization, was to have a means to declare these lands "empty" --void of true human beings. (1) Once the lands were made empty, they could be discovered. Once discovered, they could be made public lands and once public, they could be made private by whomever had the right to make the decision. The grant of "letters patent" was a means to legitimize the creation of property. Even today, the term is still used to indicate a grant made by a government conferring a title to public land. Whether anyone has a right to confer such titles is of course a matter of perspective. Only a person of attitude would describe the grant of "letters patent" as a license to plunder.
In any case, the process of legitimizing usurpation and colonization-or to put a spin on it, the process of legitimizing the transfer of property and the rights to its development-continues today. Now, however, the subject of legitimization is not a land rush. It is a gene rush. And the prize is the ownership of life. The invasion this time, to borrow from the insight of Vandana Shiva, is an invasion of the interior spaces of people, plants, animals, and microorganisms. (2) This invasion is a second coming of Columbus. In place of land titles, we now have patents on biological materials. In place of the church, we now have multi-national corporations. In place of individual priests, we now have university departments of technology transfer and bioethicists to help give the blessing and make the arrangements for the new invaders to come ashore. (3) In place of kings and queens, we have the World Bank, the International Monetary Fund, and the World Trading Organization, and other lesser lights such as NAFTA, Asia-Pacific Economic Cooperation (APEC), and even the Biodiversity Convention.
The industrial might of the U.S. derives, in a sense, from Slater's very skilled act of patent infringement.
The association of patents and thievery did not end with Columbus in the "New World." Consider Samuel Slater. The industrial might of the US derives, in a sense, from Slater's very skilled act of patent infringement.
In the 1760s, the Englishman Richard Arkwright invented the water-powered spinning frame-a machine that brought cotton spinning out of the home and into the factory and which made Britain a world-class power in the manufacture of cloth. To protect this competitive advantage and ensure the market for manufactured cloth in its own colonies, the English Parliament enacted a series of restrictive measures, including the prohibition of the export of Arkwright machinery or the emigration of any workers who had worked in the factories using the Arkwright invention. From 1774 on, if you sent textile machines or their workers abroad from England, you could be subject to fines of 200 English pounds and 12 years in jail. That's how serious they were about patents. (4)
In 1790, Samuel Slater, who had worked for years in the Arkwright mills, left England disguised as a farmer and came to the United States. With financing from Moses Brown, he virtually created from memory a whole Arkwright factory and all its equipment. He produced commercial grade cotton cloth and began Industrial-Revolution-style manufacturing in the US. His achievement was rewarded and honored and in his lifetime he became rich and was considered a great American hero. He is still acclaimed today as the father of American manufacturing. In perspective, we can see that Samuel Slater was a patent infringer, an intellectual property thief. He became a hero to those whom his theft greatly benefited.
It is a matter of attitude. Even Alexander Hamilton, always on the lookout for federal aid to US industry, once argued that patent infringers-he called them "introducers"-people who introduced really useful foreign inventions into the country-ought to be granted some kind of benefit in law, much as inventors and authors are benefited by the sections of the US Constitution devoted to the protection of intellectual property. (5)
Alexander Hamilton, always on the lookout for federal aid to US industry, once argued that patent infringers-he called them "introducers" -- ...ought to be granted some kind of benefit in law, much as inventors and authors
Until the push for the inclusion of intellectual property rights-patents, copyright, trademarks, and such-in international trade agreements, it was understood, even accepted, albeit with grumbling, that countries did not enforce patent protection until it was in their national interest to do so. When the young United States pirated the intellectual property of Europe-and Slater wasn't the only infringer-it congratulated itself and saw the theft as evidence of national virility. Intellectual property protections came very late even in some highly developed places. France, for example, only began to patent drugs in 1958, West Germany in 1968, Japan in 1976, and Switzerland in 1977. Why? Because it wasn't in the national interest to do so yet.
By the early 1970's, however, something had changed. The US was a more mature industrial power which, like Britain before it, was looking for legal means to maintain a competitive advantage. To quote a 1995 Pfizer Pharmaceutical advertisement in The Economist, "it became clear that tougher global competition lay ahead for the US." (6) US industry, either because it wanted greater protection for its idea-based products-where it still held the worldwide lead-or because it wanted greater control of the markets and a higher level of return on investment, pushed for inclusion of intellectual property clauses, including standards for patents, in trade agreements. This was a huge change in the way things had worked up until then. And it engendered a fight that is not over yet.
There should be no confusion about who won the first round. That round was clearly the victory of transnational corporations headquartered in the industrial world. The corporations bragged openly that they were the ones who pushed Trade Related Intellectual Property Rights (TRIPs) onto the GATT agenda. Pfizer's 1995 advertisement in The Economist is clear: "In conjunction with more than a dozen companies from all the relevant sections of US business, Pfizer and IBM co-founded the Intellectual Property Committee or IPC. The US Trade Representative was impressed and suggested that we increase our effectiveness internationally by joining forces with UNICE, the principal pan-European business group, and its counterpart in Japan, Keidanren…Working together…our combined strength enabled us to establish a global private sector network which lay the groundwork for what became 'TRIPs.'" (7)
The injection of intellectual property into trade agreements was the result of corporate "working together."
Interestingly, both sides in the fight over TRIPs -- those who wanted patents in trade agreements and those who didn't -- tried to "spin" the discussion with metaphors for theft.
The U.S. Trade Representative's office and the biotechnology industry explained the need for intellectual property rights in trade agreements with talk of 40-60 billion dollars of loss due to intellectual property piracy; they claimed that the quality of pirated products was lower than the real thing and that the piracy was costing lives; and they blamed all losses on Third World pirates.
Those who criticized GATT-TRIPs or NAFTA-TRIPs pointed out that the Third World and the Indigenous World also suffered loss due to piracy. They pointed out that many of the products made in the industrial world, almost all its food crops and a high percentage of its medicines, originate in plant and animal germplasm taken from the developing world. They noted that the theft was two-fold, first of the knowledge of the material and how to use it, and then of the material itself. They further noted that no royalties had been paid for the use of this material and they called the unagreed to and unacknowledged appropriation of the material "biopiracy." Further, they suggested that the World Trade Organization trade rules would likely be interpreted to make continuing theft of genetic material easier for the Industrial World.
In counterpoint, spin-meisters from the industrial world retorted that what was claimed to be biopiracy was in reality bioprospecting of raw materials. And to the claim that "raw" materials collected in the developing world are "natural" materials and therefore do not qualify as patentable and worthy of industrial-style rewards, the developing world answered that the seeming "natural" materials stolen from them were the result of millennia of study, selection, protection, conservation, development, and refinement by communities of Third World and indigenous peoples and were therefore no less worthy of recognition and respect and compensation than the products of the industrial world. They also noted, to paraphrase one characterization of the issue, that to consider only the inventions of white men in white lab coats to be inventions worthy of recognition and reward is to hold a fundamentally racist view of human creativity-it amounted to declaring land "empty" of inhabitants so that it may be claimed for the King and Queen of Spain. And, they further pointed out, by enclosing biological materials in patents, trade agreements were about to transform the creative interactions of cultures and biodiversity into a new economics of scarcity.
Finally, they observed that the patent system of GATT and NAFTA-and likely that of APEC as well-is a system that benefits highly industrial societies and is not necessarily suitable, desirable, or healthy to less industrialized cultures or countries. They reminded those who would listen-much as the colonies told England in the eighteenth century-that no matter how the patent-holders and patent rule-makers spin it, industrial-style patents will not necessarily lead to the transfer of new technologies to, or a better life in, the developing world but are much more likely to lead to the devastation of local industries, importation of high-cost products by small elites, and the exportation of (so-called) "raw" materials not protected by patents.
...industrial-style patents will not necessarily lead to the transfer of new technologies to, or a better life in, the developing world but are much more likely to lead to the devastation of local industries, importation of high-cost products by small elites, and the exportation of (so-called) "raw" materials not protected by patents.
The injection of industrial-style patents into trade agreements, they claimed, was fundamentally an act of arrogance. Giving 5 to 10 years (the amount of time GATT gives) to developing countries to adopt a system that the US has been working on-interpreting, reinterpreting, and altering-since 1790-seems a bit cynical. (8) Further, the process that forces some people to adopt other's notions of property and creativity-that says your thousands of years of ongoing experimentation and production do not deserve the same compensation as our few years of tinkering-is not only insulting but also very, very costly. To a developing world whose creations may not necessarily result in patent royalties, there is first of all the cost of unrealized profit. Second, there is the cost of added expense: with the extension of patents to living organisms and human body parts and genes, and with the extension of the industrial patenting system to the whole world via various trade agreements, Third World and indigenous communities face a very legal, sizable, and collectable bill for royalties. Patents on seeds, for example, can result in
The cost of patents on biologicals used in health care and medicines will be even higher and more horrific. In general, the whole patenting process leads to greater and greater Third World indebtedness to the Industrialized World with little or no recognition of the enormous debt incurred in the other direction.
- 1. farmers being denied their traditional rights to save seeds (planting seeds without paying royalties is making an unauthorized copy of a patented product),
- 2. farmers being forced to pay royalties for every seed and farm animal derived from patented stock, and
- 3. farmers being forced -- given the current direction of research and the increasing ownership of seed companies by agro-chemical corporations -- to become more dependent on fertilizers and herbicides made by the same companies who collected their traditional seeds in the first place and now sell back the chemically-dependent derivatives.
Thus, sophisticated legal devices called patents have become perceived as tools leading to just rewards on the one hand and to acts of piracy and crushing costs on the other hand. One side claims patents are protection from thieves while the other side remarks that those who demand patent protection from thieves today were once and continue to be thieves themselves.
How are we to know whose yardstick to use when deciding which is the proper spin and whose is the righteous wisdom? In the United States, the Supreme Court decision in Diamond vs. Chakrabarty might have greased the way for patenting "everything under the sun made by man" but the decision gave no guidance on to how to behave when meeting people for whom everything under the sun is sacred and therefore never to be considered property. (9)
...in the world of trade, ethics may be seen as a barrier to trade and therefore not an allowable consideration.
Should our relationship to the natural world be a commercial relationship? Most of us would say no, the relationship should be a matter of ethics. However, in the world of trade, ethics may be seen as a barrier to trade and therefore not an allowable consideration.
Even an agreement intended to deal with the natural world-the Convention on Biological Diversity (CBD)-turned out to be a trade agreement and to pose the same commercial/ethical dilemmas. The CBD promised conservation and offered in return sustainable use of natural resources and equitable sharing of benefits.
Here again we find a matter of attitude and an opportunity for spin. On the one hand, the Convention protects biodiversity and gives legal space for the recognition and enforcement of indigenous rights. On the other hand, in assuring a market of shared benefits emanating from natural resources, the Convention legitimizes a market for owned genes and thereby diminishes biodiversity. Species no longer seen as honored fellow members of a greater ecosystem are reduced to the rank of commodities, valuable gene pools, containers to be divided and spliced and owned and priced and sold.
The very high cost paid for the protection of biodiversity may turn out not to have been worth it. Ethics aside, there are already endless stories of the evasion of equitable sharing-of attempts to access and patent material that now reside in public gene banks or botanical gardens but was originally collected from Third World and indigenous communities before the CBD came into force and therefore not subject to its rules, of companies engaged in bioprospecting while offering inadequate bilateral agreements to the communities in which they search, of companies freely bioprospecting national parks and making millions from the search, and of companies asking employees to bring home a spoonful of dirt while on vacation because it might contain some microorganisms the company can use. (10)
Species no longer seen as honored fellow members of a greater ecosystem are reduced to the rank of commodities, valuable gene pools, containers to be divided and spliced and owned and priced and sold.
The point of all the bioconspiracy is, of course, money. The burden of theft falls so unevenly on Third World and indigenous communities because in the half millennium since the King and Queen of Spain gave letters patent to Columbus, indigenous and Third World peoples have continued to live where the genetic diversity is richest and to act as its stewards. Having maintained and protected the wealth, they now are forced to hold off the thieves.
Whether the theft is of neem from India or endod from Ethiopia or the cells of John Moore from Seattle or the cheek-scrapings of people in South America or the entire wealth of a Costa Rican rain forest or one important microorganism from the hot springs of Yellowstone National Park, the value of biodiversity is difficult to exaggerate. With the extension of patents to living organisms and their parts, life can be owned, manipulated and made worth investing in. When a marketable product is teased out of what is patentable, the profits can be enormous.
Consider the potential of a few products derived from indigenous knowledge: To borrow from an analysis originally made by the Rural Advancement Fund International (11), neem, a plant that grows mostly in Southeast Asia, produces a kind of natural insecticide whose worth has been estimated at about 50 million dollars a year. Thaumatin, a natural sweetener derived from a West African plant, might command a sizable portion of the 900 million dollar a year low-calorie sweetener market in the US. And endod, a perennial plant used by Ethiopian women for centuries, has multi-million dollar profit potential for controlling the zebra mussels that now clog pipes in the Great Lakes.
Some say the point in patents is not money but human progress. Without the protection of patents, they argue, no medical progress will be made; no one will be willing to risk an investment unless they are guaranteed an eventual monopoly. And yet, inventions have been made in many communities and throughout all time without the protection of patents. Some communities never required the incentives of patenting to make innovation and sharing attractive.
Again, it is a matter of attitude. In examining the need to patent life forms, some of the discussants have may been caught in the spin of others.
"The enviros will never object. They'll probably never even notice they've been handled..."
Several years ago, an industry analyst was asked about Diamond versus Chakrabarty and why the public outcry in the US was not greater and why the environmental community did not see an ethical problem. He answered,The environmentalists, for one example, can be handled. When we went for life patents, they were kept quiet by the fact that the first patent applied for was for a microogranism that could eat oil. You think that was an accident? What environmentalist was going to get in the way of something that might clean up oil spills? So we obtained the right to own life. Now you're telling me they're going to get upset about the theft of other people's ideas and resources! Get real. With neem, we're giving them natural pesticides. The enviros will never object. They'll probably never even notice they've been handled...Everybody gets handled. (12)
A while ago, in Seattle, I attended an international conference on "The Future of Intellectual Property Protection for Biotechnology." I heard many eminent speakers and a great deal of discussion about patents. On the third day of the conference, one of the panelists bemoaned the situation in his country (where at that time it was nearly impossible to obtain a patent on any form of life). The panelist hoped that his colleagues in other places would not have to face the problems he faced with "…environmentalists and those who would bring ethics and other irrational considerations to the table." Those were his words: "ethics and other irrational considerations." Not one eminent speaker challenged the pairing of "ethics" and "other irrational considerations." Not one lawyer. Not one official. Not one academic. (13)
1. Her analysis was made in the context of a lecture she gave on January 16, 1996 in Kane Hall on the University of Washington campus in Seattle. The lecture was entitled, "Biodiversity and Biopiracy."
3. In the U.S., exchange of ideas, information, and staff between industry and academia was facilitated by the passage of the Bayh-Dole Act in 1980. The act allowed universities to obtain patents for discoveries made in federally-supported laboratories. Before the act, the federal government usually held title to discoveries made with the help of public funding. After the act, universities could transfer to (cont on p. 45) private companies via license agreements exclusive rights to technologies developed with public monies.
4. See White, G. S., Memoir of Samuel Slater, The Father of American Manufactures (1836), Reprints of Economic Classics, Augustus M. Kelley, New York, 1967 and Simonds, C., Samuel Slater's Mill and the Industrial Revolution, Silver Burdett Press, Inc. New Jersey, 1990.
5. Hamilton's recommendations are quoted in White, Op. cit., p. 86.
6. Pratt, E. T., Jr., Pfizer Forum: "Intellectual Property Rights and International Trade", The Economist, May 27, 1995, p. 26. 7. Ibid. 8. 1790 is the date the US Congress passed the first US copyright and patent law, pursuant to Article 1, Section 8 of the US Constitution. Interestingly, intellectual property law was passed a year before the Bill of Rights became the first 10 amendments to the US Constitution. 9. Diamond v. Chakrabarty, 447 US 303 (1980).
10. In Europe recently, transnational corporations have been looking for ways to avoid negotiating with well-informed Third World and indigenous negotiators by getting their biological samples from European botanical collections containing Third World and indigenous materials collected before the Convention on Biological Diversity came into force. The companies are asking the towns that hold these collections to take small payments in return for guaranteeing that the sampled material is really the property of the local collection. Thus, according to the analysis of German activist Christine von Weizsacker, unknowing communities are being asked to condone the historical biopiracy of colonization and to make themselves accessory to a new double-layered biopiracy that violates the spirit of the CBD.
11. See, e.g., An Overview of Bio-Piracy. Prepared by RAFI: Biodiversity, Intellectual Property Rights and Indigenous Peoples, 28-30 September, 1994, Santa Cruz de la Sierra, Bolivia.
12. The analyst, originally interviewed in 1994 for an article that later appeared in Boycott Quarterly, asked for anonymity.
13. The incident occurred during a panel discussion that was part of an international conference on "The Future of Intellectual Property Protection for Biotechnology", held October 23, 1993 at the University of Washington School of Law in Seattle.