intellectual property rights and social development: a ...shodhganga.inflibnet.ac.in › bitstream...
TRANSCRIPT
Chapter II
Intellectual Property Rights and Social Development:
A Framework
2. Introduction
Property has been one of the fundamental institutions of the
society. The very concept and nature of the property evolved in the course
of time shaped by the philosophical, cultural, economic and socio-
political aspects of the particular stage of the society. The unique feature
of property rights is related to the ownership and there is an inherent
dichotomy between private and public interests. Extension of natural
rights arguments for the protection of physical property and intellectual
property i.e., knowledge on a similar platform has been problematic,
because IPR in the international arena are tailored to enhance the interests
of industrial exploitation of intellectual capital by highlighting the role of
the rights owner and underplaying the role of other needs. The intellectual
property embraces all the intangible assets at stake, including raw genetic
resources, advanced agricultural and pharmaceutical research, and the
ethnobiological knowledge that often transforms a locally useful organism
into a globally valued application of biotechnology. Western concepts of
exclusive ownership, alienability and monopoly rights are largely
inconsistent with indigenous peoples' traditional forms of ownership
which tend to focus on collective, intergenerational creations that often do
not contain rights of alienability and which are produced from
community-based economies. Thus, attention has recently turned to the
sui generis laws of indigenous peoples as the source for developing legal
regimes to protect indigenous works. Tribal law is also uniquely well-
suited to accommodate the religious and cultural beliefs of tribes in ways
that Western law cannot.
The political construct of the intellectual property has been
internationalised with certain standards under the WTO’s TRIPS aegis.
Such a process mostly from economic and legal perspective has come
18 Chapter II
under serious scrutiny. The globalisation offers both challenges and
opportunities to indigenous knowledge systems. Opportunities may
outweigh the challenges if the globalisation undermines the legal and
cultural context in which rich indigenous knowledge system is located.
The main object of this chapter is to delve into theoretical framework of
such construct from a social development perspective in order to
understand how biodiversity associated traditional knowledge has been
hierarchically placed into the lowest realm of the society vis-à-vis public
domain to facilitate transfer of rich heritage of such information and
knowledge into intellectual property regimes.
2.1 Historical Origin of Intellectual Property Rights
2.1.1 Institution of Property
Property, one of the fundamental institutions of the society, is as
old as history. As a political principle, property draws attention to the
relationship of ownership that exists between the object in question and
the person or group to whom it belongs. So there is a clear distinction
between property and simply holding an object as possession. The
concept of property involves more than possession but it also includes the
socially defined ways in which possessions can be owned and disposed
of. Gifts, inheritance, barter, and sale are all ways of exchanging
possessions. In each society, some things are defined as "not for sale." In
modern societies you can sell your land but not your children. In many
earlier ones land could not be owned by individuals, but was instead the
collective property of a kinship group. People could inherit the right to
use a share of property but not to sell or give it to strangers. Some of these
societies did permit the sale of human beings, in a few cases even one’s
own children.
The ownership of property is, therefore, reflected in the existence
of rights and powers over an object, and also acceptance of duties and
liabilities in relation to it. However, one can notice that there is no
unanimity among societies regarding the form and evolution of property.
What is most common among the societies is that each society instituted
some kind of property system to provide control and inheritance over
Intellectual Property Rights and Social Development: A Framework 19
things. (New Encyclopaedia Britannica 1997: 182-205) The rise of
mercantilism and subsequent stage of feudalism broadened the concept of
property into real and personal. With the advent of industrial revolution
and the consequent shift away from agriculture set the stage for equal
importance to both real and personal property.1
In the contemporary scenario, intellectual property as personal
property received great attention as the basis of competitive advantage
lies with the control of abstract objects. In order to alleviate the puzzle
that exists between intangible rights and tangible properties, Peter Drahos
(1996) states that all rights are intangible and incorporeal but nature of
objects to which property rights refers can be both tangible and intangible.
The theoretical literature that debate on the origin of intellectual property
rights usually traces back to institution of property rights either to justify
or to criticise their implications to the society.
2.1.2 Purpose of Property
Karl Polanyi, well-known scholar in this debate, states that the
purpose of property is to meet the “provision of the means of existence.”
The purpose of institutions and activities that shape material life is to
provide communities with goods, services, and other values necessary to
sustain community or group life, free of deprivation. Penalver, another
scholar, suggests that property deserves protection to the extend that it
promotes human dignity, there exists in natural law, a minimum standard
for the treatment of property consistent with human dignity, and that
redistribution of property can be justified when one’s person dignity need
is greater than that of another. (Christopher Saporita 2003:271-275)
Property is a social institution interpreted by state to meet its
social and political requirements at each particular period. The legal
1 Land and anything that is firmly attached to land is considered as Real property
whereas Personal property includes all the tangible and intangible properties that can
be legally owned. For example book is a tangible personal property and intellectual
property rights are intangible personal properties. Bhalla, R.S. (1984): The Institution
of Property Legally, Historically and philosophically regarded: Eastern Book
Company.
20 Chapter II
construction of property emerged to control the actions of others in
respect to the objects of property. The history of property is also related to
the history of the protection of the individual’s interest from the
intervention of the state. Thus, property rights derived from the state-
sanctioned legal apparatus are also held against the state. Property, as an
institution, protects certain interests in society in a specific manner. But
there is a parallel history of the ways in which the institution of property
has been legitimised and justified within the social relations in which it
currently appears.
Property as a social institution seeks to internalise the costs and
benefits of individual activities. Legal constitution of property rights help
owners to secure benefits while keeping costs externalised. Social
efficiency might be best served by costs accruing to the property that
delivers the benefit; however, for individual owners it is more efficient to
have the costs met by others. So there is an inherent dichotomy between
public and private interests in the property rights.
In that sense, it could be argued that property rights are
constructed to meet the particular interests of individual actor’s who has
the power to devise new rules. Efficiency has been utilised to justify the
property rights but whose efficiency is increased in a world of positive
transaction cost is the question that has to be addressed. The concept of
property has been changed from the old understanding of it as physical
things held for the owner’s use to the modern concept of property that
treats it as assets that can be exchanged for potential use.(Christopher
May 2000: 18-21)
During the rise of capitalism, land and human labour were socially
redefined as being "for sale". Although they did not become commodities
by most strict definitions of the term (because they are not "made"), they
did become private rather than social. The appropriation of things to
secure one’s needs is the foundation of property as an institution. With
social and cultural changes, with new discoveries and inventions, the
requirements of individuals change, as do the resources accessible to meet
such needs. Such changes also produce men’s conception of property.
Intellectual Property Rights and Social Development: A Framework 21
With the development of the human labour power, acts and activities that
could produce products for the market economy, came themselves to be
regarded as object of property. The idea of exchange value was new
importation into the institution of property having little relation to the
basic idea of property. (R.S. Bhalla 1984)
Subsequently, the rise of capitalism altered the social restrictions
on property. A particular form of property, the commodity, became more
prevalent. Unlike earlier products, which were made to be used or
exchanged in the context of a social relationship between producer and
consumer, commodities were made to be sold for profit using rationally
organised wage labour. The value of a commodity is measured by a
universal medium of exchange, money. The price of a commodity
represents its value and includes the cost of materials, wages, other
production expenses, and profit. When it is sold, the exchange is based
upon the price of the product, not upon the social positions of buyer and
seller. A set of impersonal market relationships reduce direct social
contact between the maker and the consumer who may be strangers to one
another.
Economists define property in terms of income it generates, that is
capital. When capital used to generate new goods and services, another
economic property is created. Property is transferable and it has a
representative value rather than the true value. So property ownership
consists of various rights to decide what do with tangible and intangible
things. So the law of property deals with the legal relations among people
with regard to things. In this view, the term “right”, whether applied to
property, humanity in general or individual in particular, assumes a
special meaning and significance.2
2.1.3 Diverse Notions on Property
One of the initial problems faced by early thinkers was as to how
does a thing becomes a piece of property for the first time or how does the
2 John C. Becker and Timothy W. Kelsey, “Property Rights Interests and Perspectives
the Overview,” at http://extension.aers.psu.edu/pubs/proprightsoverview1.pdf.
22 Chapter II
transition from Hobbesian state of nature to the state of civil order in
terms of distribution of property rights occurred? The fundamental
equality concept developed by Locke leads to riots and vendetta as
everyone uses the executive power to enforce the law of nature in one’s
own favour (Chris Bertram 2004). David Friedman opines that
coordination without communication is possible when people act upon one
another on the basis of utility and interests. (David Friedman, 1994:4-14)
The legal system seems to agree with simple and unilateral private action
to give each thing an owner like occupation of land, capture of animals
etc. Thereafter rules of voluntary transfer are adopted by consensual
means. David Hume points out that property rights are set out by human
conventions and conventional classification of things find three categories
in Institute of Justinian. They are common property, state property and
private property. Private property attracted wide range of discussion and
debates as it is the area in which each individual person may engage in
voluntary actions to gain and transfer property rights. (Richard A. Epstein
1994: 32-34).
Pufendorf and Grotius derived the principle of fidelity to divide
earth. Thomas Hobbes relies on sovereign authority who makes law
creating private property. Locke argues that people have God given duty to
improve the earth and that private property is a necessary adjunct to this
task and to that of sustaining human life by mixing labour with what is
yours. (John Simmons 1994: 70-71) Locke favoured the appropriation of
private property as there is “enough and as good left in common for others”
which has been forgotten by his successors who use his argument to justify
all form of private property. (Christopher Saporita 2003: 266-269).
The liberal approach justified the institution of property on the
basis of natural right and utilitarian philosophy at the cost of injustice
existing in relation to the distribution of property and inequalities. On the
other hand, socialist considered property as means to end, subsumed by
the purposes of sharing social, economic and cultural rights.3 Pierre-
3 Tibor Machan, “Right to Private Property,” at
http//www.iep.utm.edu/p/property.htm#individuality.
Intellectual Property Rights and Social Development: A Framework 23
Joseph Proudhon in his essay “What is Property?” asserts that all
“Property is theft!”, and all proprietors are robbers and traitors. Marx saw
communism as the essence of the actual development of property
relations, while he recognised the demand for state property as necessarily
arising from the struggle against the iniquity of capitalism and looked
forward instead to a transcendence of private property, rather than its
abolition. (Andy Blunden 1999)
The Roman system of property law and modern legal system insist
on the absolute nature of individual dominium over particular assets, but
its actual operation recognised that both common and private property are
complementary parts of the total system. The inherent limitations of
private property and common property are exclusion and coordination
respectively. It seems difficulty to give importance to one over the other
as both systems may effectively work in certain situations but depends on
the nature of resource in question and technology that are available to
exploit it. Thus, no single regime properly will be good for all times and
all occasions. (Richard A. Epstein 1994: 20-23) The Industrial Revolution
expanded our ideas of property to include other forms of wealth such as
innovative ideas and productive techniques. This tendency widened
further by considering information and knowledge as property.
2.1.4 Historical Development of IPRs
Historically, the origin of IPR could be traced to the Industrial
Revolution and it has been an important driving force behind industrial growth
and development of capitalism since then. The IPRs from the very beginning
have not recognised the informal systems of innovation of artisans, farmers,
indigenous communities, etc. The idea of knowledge ownership was
unprecedented when the modern notion of patents and copyrights started to be
developed during the fifteenth century Venice. (May & Sell 2005) Inventions
were not considered as commodity and did not have market value in the
ancient world. Even amidst issues of theft and plagiarism, Roman and Greek
laws never protected intellectual property. From the late medieval period or
roughly from the early renaissance period onwards knowledge was considered
as a distinct concept of having an economic value. Guilds were the
24 Chapter II
frontrunners in regulating access to knowledge to protect their members’
power in the market economy. Thus, by attributing value to the skill,
separating itself from the product, guilds seemed to have encouraged the
abstraction of intellectual property. This tendency further strengthened during
the Renaissance, as genius individuals were considered as center of creative
process and granted ownership to the fruits of their minds. Marketplace
notions associated innovations with the individuals who supposedly originated
them and thus entitled them to enjoy their fruits. In the meantime, states
adopted the practice of securing rights and royalties to authors and inventors to
encourage innovations from within and abroad. Different states followed
different policies to encourage new innovations. For example, in France the
process of knowledge production was controlled by privilege, while in
England the application of knowledge itself was the key to success. (Ben-Atar
2004:1-2) The British Empire of the eighteenth century awarded patent
monopolies for a specified duration to inventors to promote innovation and
industrialisation. (Prager 1944:721)
2.1.5 Three historical stages of IPR
Western notion of IP has spread across the globe in three
successive stages as the territorial, the international, and the global
periods. (Peter Drahos 1996) In the territorial epoch, IPRs were strictly
under state government. The international period was characterised by
bilateral and multilateral agreements that endorsed mutual reciprocity in
the protection of IPRs. The third period starts with the TRIPS Agreement
marking a major transition from the national character of IP into a
globally regulated subject matter. The irony is that IP was considered a
subject within the jurisdiction of national governments with the powers to
determine the scope, nature, duration of protection. All of these powers
are now circumscribed under the TRIPS Agreement, states governments
have been made to implement it even discarding their national sentiments.
(Chidi Oguamanam 2004: 163-164)
2.1.6 Property Rights and Intellectual Property Rights (IPR)
Intellectual property represents a particular form of ownership. It
represents a property right in an intangible, abstract idea expressed in
Intellectual Property Rights and Social Development: A Framework 25
tangible form. Tangible qualities typically characterise the ownership of
physical property. What intellectual property has common with tangible
or physical property is the political significance of exclusion from
possession and enjoyment of real property that is virtually as palpable as
the property itself. An essential feature of property rights in general, is
the "right of exclusion." It is the power that "may be exercised to the
exclusion of all others, freely and without restrictions." An
understanding of organised and legitimate force shows a generalised
concept of property as socially and politically contingent category.
(Richards 2004: 26)
According Carol Rose (2005) "Property is one of the most
sociable institutions that human beings have created, depending as it
does on mutual forbearance and on the recognition of and respect for the
claims of others". And while property and intellectual property remain
distinct domains, there is in fact much that intellectual property can gain
from the social relations approach to property. The expansion of
intellectual property rights around the world, touching billions of diverse
people of all levels of economic and cultural development, brings
intellectual property's social effects to the foreground and begs for a
deeper analysis of how this law ought to accommodate its diverse
effects. The quest of traditional knowledge-holders for respect and
recognition of their cultural authorship, the claims of developing nations
for more equitable economic and social relations, and public concern for
the health of the poor require that intellectual property decision-makers
pay heed to the following lessons of the social relations theory of
property. (Carrier 2004)
However, a peculiar characteristic of intellectual creations, from
an ontological point of view, is "non-exclusivity." This means that
intellectual creations can be at many places at once and are not consumed
by their use. On the other hand, it is very different when the object of
ownership is a res, such as a parcel of land. The pure possession or use of
that parcel by one person prevents others from possessing or using it.
Land, like almost every other resource, is limited and thus, private
26 Chapter II
property rights are needed to "fence" the land in order to ensure peaceful
possession by the owners and to avoid the dreaded "tragedy of the
commons." (Richard Hardin 1968) Therefore, the state must step in and
protect the rights holder, giving him the power to prevent others from
using his creation, thereby making it artificially scarce. Indeed, without
the state's intervention the rights holder could do nothing to prevent
unauthorised use of his creation. (Vincenzo2005:157-158)
A clear example is the strong protection accorded to a patent
holder, who can rely on the strict liability that would occur whenever
someone uses (or sells, offers to sell, etc.) the inventor's device without
his or her permission. Such a strong defense against infringement is
almost unthinkable without state’s legislative and judicial intervention.
So there is a fundamental problem between economics and law in
finding out a solution for the scarcity of resources and their subsequent
cost. With IPRs the problem becomes as to how "to measure out" the
scarcity (i.e., the scope of the power of exclusion) between the owner
(the rights holder) and society (the community). The "scarcity" created
by the granting of IPRs is modulated by different constructs of property
rights, which inevitably affect the relation between the values at stake.
(Vincenzo 2005: 160)
2.1.7 Intellectual Property as Social Relations
Traditionally, real property rights have been considered perpetual
and unqualified; they do not automatically expire within a term of years
and, for the most part, they were thought to advance private interests in
autonomy, efficiency, and sovereignty, not public interests in community
and human rights. Intellectual property rights, on the other hand, were
foundationally understood as limited exclusive rights, and offered by the
state not to reward private persons but to promote the public interest in art
and science. Real property rights were conceptually absolute and private;
intellectual property rights were qualified and public-minded.
The last century, however, has seen a reversal in the fundamental
properties of these core legal rights. During this time, real property rights
have come to be understood not as absolute rights, but as a set of "social
Intellectual Property Rights and Social Development: A Framework 27
relations" among various actors that require limited rights so as to respect
competing private and public interests, including human rights and the
dignity of persons. But the scope and duration of intellectual property
rights, in contrast, have grown substantially, so that today many of these
rights have become virtually perpetual and unqualified. Furthermore,
society has moved far away from an understanding of intellectual property
as serving the public interest, toward a regime that conceptualises rights
almost exclusively as the private economic rights of creators and
concentrated in the hands of a few. (Michelman 1987: 1319-1329)
This conception of intellectual and property law is being
challenged. As a result, the Doha Declaration's assertion that intellectual
property rights serve human values, intellectual property is being re-
envisioned as limited by the property and personal rights of others, not
just by economic incentive theory alone. Despite laypersons' conceptions
of property law as individualistic, economic, and absolute, in fact, real
property law is today one of the most venerable, robust, and important
mechanisms for organising complex social life.
Property rights have social effects. As Joseph Singer (2001), a
leading social relations theorist, describes, modern property law
recognises that "owners do not live alone. Both ownership and the use of
property affect others for good and for ill." Property law's focus on social
effects goes beyond mere description to prescription, offering normative
justification for judges and legislators to take social effects into account
when creating, limiting, and distributing property rights. Property law
distributes rights in shared resources. The bundle of sticks metaphor helps
to imagine real property not as absolute but as a set of rights, sticks, that
can be shared.
Property rights balance incommensurable values. Modern property
law is founded upon a variety of normative theories from Lockean labour
theory to economic reasoning to theories of personhood. The goal in
recognising a variety of values is not to prioritise one over others, but to
maximise each value where possible. Property as social relations recognises
that unequal distributions of power and wealth enable some persons to
28 Chapter II
coerce others in property relations and inhibit them from realising the
multiple values that property rights should promote, from autonomy to
health and dignity. Social relations theory would rectify this imbalance,
prescribing rules that would maximise the ability of all persons to exercise
their property and personal rights. (Radin 1993: 15-16)
Munzer (2001:49), in his New Essays in the Legal and Political
Theory of Property, suggests that property rights structure social relations.
While an economic analysis of property tailors law to maximise
individual pleasure or welfare, a social relations analysis of property
seeks laws that structure better social relations, respecting the health and
dignity of all people. Property as social relations recognises that the state
actively structures certain social relations as it distributes and enforces
property rights.
Property rights mediate relations between the individual and
community. Jennifer Nedelsky (1990) has been similarly concerned that
property rights should neither isolate the individual nor reify the
community. Nedelsky and Radin sought for property rights to enable one
to constitute a stable, socially grounded, historicised, and autonomous self
in the world. Societies look for similar visions for intellectual property.
Madhavi Sunder (2006) considers that improved social relations,
measured by every individual's maximisation of numerous moral values,
from freedom to equality to health and efficiency, are not inevitable; they
require the attention and active promotion of law. We must attentively
design the legal and communications architecture in accordance with the
kinds of social relations society needs.
2.1.8 Foundation of International Legal System
The TRIPS Agreement enforced on the international community in
arbitrary and unilateral manner is enshrined in the liberal framework.
When property rights take new forms in the society, it is necessary to take
into account the interests and values shared by other approaches. Different
views are critical when "shaping" the scope and structure of property
rights, since the satisfaction of interests is the starting point for the
Intellectual Property Rights and Social Development: A Framework 29
process that leads to the "rule of law." (Dawkins & Vallianatos 1996: 431)
Different concepts of property exist in different legal systems as
well as in legal theory. For example, in some societies, property is
considered as a commodity whereas in others property is viewed in terms
of "social needs." Joseph Singer (1988) considers that when the power of
the owner is stressed in the construct of property rights, property rights are
deemed to become a "commodity". Conversely, emphasis on the social
aspect of ownership stresses the interests of society as a whole, as opposed
to those of the owner alone. Indeed, the idea and the content of the "rule of
law" are an outcome of the philosophical and political thought that
underpin any given society at any given time and space. Peter Drahos
(1996) analyses that since "law is politics," property rights are "shaped" and
interpreted according to liberal thought from the twentieth century to the
present.
Joseph Stiglitz (2002) view that the idea of property as a market
commodity is based on the belief that free individuals in a society will act
in a free market through contractual instruments in order to maximise
their interests. This is enshrined in the TRIPS agreement which is a neo-
liberal creed of "market fundamentalism." The dialectical relationship
between the two concepts of property rights pervades every level of the
debate about IPR.
Gathii (2001) opines that industrilalised regions, such as the
United States and Europe, "intellectual capital" has become both an
important asset to protect and a field of comparative advantage to
withhold. For that reason, the political construct of the TRIPS agreement
has been clearly embedded with western interests by defining IPRs only
in terms of their industrial and commercial application and needs.
In the TRIPS agreement, a public policy strand including human
rights concerns, environmentalism and public health stands in tension
with the commodity logic of IPRs. This tension, in the pre-TRIPS era,
was mitigated by international agreements that provided mechanisms
(such as rules requiring compulsory license) to strike a balance among the
competitive interests. With the adoption of the TRIPS agreement the
30 Chapter II
tension has dramatically increased between rights owners, interested in
maximising their profits, and the consumers of IPRs interested in
receiving a fair price and accessibility to products. (Gathii 2001:759)
The impact of property rights in knowledge is felt in areas where
the deployment of technology has particularly beneficial and perceptible
social benefits, such as health and agriculture. With the advent of
information technology and biotechnology scientific and academic
credentials have brought the question of property rights in a wider scientific,
commercial and consuming audience than preceding technologies. Both
technologies touch vital interests like freedom of speech and the sanctity of
life thereby introducing a more conscious ethical and political dimension to
the question of property rights.( Francis 2005: 294-295)
The notion of intellectual property is elastic enough to embrace all of
the intangible assets at stake, including raw genetic resources, advanced
agricultural and pharmaceutical research, and the ethnobiological knowledge
that often transforms a locally useful organism into a globally valued
application. Since property rights serve as a model for intellectual property
rights, then each political view will influence their construct and scope.
2.2. Theoretical Perspectives on Property Rights
2.2.1 The Classical notion of Property
The classical idea of property rights and ownership derived from
Roman law where the scope of property rights considered as the "absolute"
dominion. Even in the absolute dominion, social control of property rights is
concerned, ownership has never been absolute. That is to say, most
individualistic age of Rome, ownership had a social aspect, such as the
liability for the execution of a debt and the possibility of expropriation by the
public authority. (Martino: 1979)
Sir William Blackstone (1969) maintains that the function of private
property is to secure freedom and autonomy for individuals. He considers that
property rights are conceived as the "sole and despotic dominion which one
man claims and exercises over the external things of the world, in total
exclusion of the right of any other individual in the universe." According to
Intellectual Property Rights and Social Development: A Framework 31
this view, property links only the owner to the object and there is no
relationship with any other person. As the owner could do anything that he
wants with his property, the right to own property is an absolute right whereas
a relative right is "one which is incident to men as members of society and
standing in various relations to each other." Indeed, Blackstone's idea of
property is much more "absolute" than the one conceived by the Romans.
2.2.2 Realist Framework
Interestingly, by the turn of 19th
century, a shift occurred from the
person-thing conception of ownership to a social, or relational, conception
of ownership. By this time, the metaphor of property as a "bundle of
rights" was being used to describe ownership. In this new stream of
thought, ownership was considered as a complex set of legal relations in
which individuals are interdependent. Some degree of social interference
with one person's ownership interest was deemed inevitable, but the real
question was which interferences should be legally prohibited and which
should be permitted. But it depends strictly upon which policies a society
decides to promote at a given time. (Vincenzo 2005:163-164)
The individual side and the social side are the two important factors
in the institution of property. But the social side of property might be lost or
deteriorate if it were not enforced, especially in cultures whose ideologies
emphasised the individual aspect of property ownership. Because
individuals have incentives to maximise control over their own property,
they lack incentives to monitor the use of property interests that they share
in common with others. For each individual, the costs of policing the social
side of property greatly exceed the individual gains, so each individual
chooses to neglect the social side. As a result, aggregate social welfare
diminishes unless the state, as society's agent, acts to protect the social side.
At the international legal framework, however, the problem remains how to
promote this social side as there is no central government in the
international arena to act as a state and safeguard the social interest, how
can the social function be protected?( Alexander 1997: 366)
In the legal realist view, there is no right without duty and duty is
owed to the society as a whole. This new idea of property was ushered into
32 Chapter II
the legal framework by legal statutes and judicial decisions only with the
emergence of the "welfare state." Social welfare programs undermined the
"commodity conception." Various types of property, which were traditionally
regarded as market assets, came to be seen as serving other, non-market
functions. Moreover, the law began to protect the "noncommodified" aspects
of property arrangements. (Alexander 1997: 366).
2.2.3 Libertarian and Egalitarian Liberals
During the 1950s, Friedrich Von Hayek strongly opposed the
premise and consequences of the "new property." He opposed the whole
idea of welfare states and, generally, the intervention of the state in the
market. The state's core legitimate function is to facilitate individual
attempts to satisfy personal preferences, which will ordinarily occur
through market transactions. Property, then, must always be available as
market property, or commodity. In similar vein, Robert Nozick (1974)
argues that the primary task of the state is to secure individual property
rather than interfere with it. The result is a "market-oriented" idea, an
"ultra-minimum state." On the other hand, Egalitarian liberals like John
Rawls (1999) disagree with this view and consider: "government should
therefore assure each person, as a matter of right, a decent level of such
goods as education, income, housing, health care and the like."
2.2.4 Communitarian Liberals
The communitarians challenges one of the aspects endorsed by
egalitarian and libertarian liberals that "rights are prior to the good," that
is, the "neutrality" of the state. Communitarians maintain that justice
cannot be detached from any conception of the "good life," and that rights
depend for their justification on the moral importance of the ends they
serve. This is the central critique of the communitarians against the liberal's
creed of "neutrality" of the state. Since communitarians are sensitive to
emerging values and interests, and because they recognise the influence of
the good life in the lawmaking process, they can spur a "social-oriented
view" of the property that takes into account, inter alia, the demand for a
more equitable distribution of wealth and for, more generally, "non-
western" approaches. For example, IPRs in the international arena are
Intellectual Property Rights and Social Development: A Framework 33
tailored to enhance the interests of industrial exploitation of intellectual
capital by highlighting the role of the rights owner and underplaying the
role of other needs. The communitarian idea of property would take into
account those other needs, such as the nonindustrial uses of intellectual
property (e.g., like food security and conservation) and would be very
useful in counterbalancing the continuing trend in the expansion of IPRs.
(Vincenzo 2005:169)
2.2.5 The Public Domain Debate
For libertarian liberals, the state must avoid interfering with the private
rights of citizens and intellectual property rights because of their nature (i.e.,
non-excludable and non-rivalrous), require a strong intervention by the state.
In the same way, the contemporary "public domain" school of thought argues
for limiting the scope and the expansion of IPRs. It assumes that the public
domain must be protected against a "new enclosure movement." This
scholarship opposes the creation of strong IPRs because it believes that the
purpose of intellectual creation is to serve all humankind and it will be better
fulfilled by allowing intellectual creation to remain in the public domain.
James Boyle (2003) attempts to broaden the scope of the public domain.
This approach tries to reify the concept of public domain by shifting
attention away from the interest of the single subject to the common
interest of all subjects considered as a unit. To accomplish this, all
"scattered" interests must be fused into one single but shared interest, thus
creating a new concept of public domain. In this way Boyle, accords
conceptual autonomy to the social aspect of property and is able to "both
clarify and reshape perceptions of self-interest" in a way that can lead to a
new and more solidaristic idea of property right.
Both scholars, Chander & Sunder (2004) consider that the public
domain is now the cause célèbre among progressive intellectual property
and cyberlaw scholars, who extol the public domain as necessary for
sustaining innovation. But scholars obscure the distributional consequences
of the commons. They presume a landscape where every person can reap
the riches found in the commons. The belief that a resource is open to all by
force of law, it will indeed be equally exploited by all. But in practice,
34 Chapter II
differing circumstances render some better able than others to exploit a
commons including knowledge, wealth, power, access, and ability.
Just as recognition of the tragedy of the commons is the central
justification for private property, recognising the romance of the
commons may justify forms of property uncommon in Western legal
traditions. The tragedy of overuse or the related tragedy of underuse
dominates the law's attention. Law presumes that producing efficiency is
"the problem of the commons" as they fail to establish efficient use in the
face of the tragic commons and the anticommons. (Hardin 2002: 119)
The TRIPS Agreement transformed a global public domain in
information by propertising the information resources of the West but
leaving in the commons the information resources of the rest of the world,
such as genetic resources and traditional knowledge. (Chander & Sunder
2004: 1332) Central to most definitions of the public domain is the notion
that resources therein are available broadly for access and use. Just as
property consists in a varying bundle of rights revolving around a central
right to exclude, the public domain consists in a varying bundle of rights
revolving around the right to access and use. As James Boyle (2003)
succinctly asks, "Who needs a public domain if you can create out of
nothing?" Jessica Litman (1990) countered such argument by stating the
public domain as essential for the process of creation and ultimately,
propertisation.
The new mantra of the movement exposed private property and the
public domain as two sides of the same coin: innovation captured as
private property depends upon the existence of a rich public domain.
Taking up the utilitarian banner, intellectual property scholars argued that
"innovation can suffer both from leaving too little and too much in the
public domain." Too many intellectual property rights raise the cost of
access to some resource and can create "choke points" on innovation.
James Boyle (2003) has defined the public domain as "the material that is
free for all to use and to build upon." So the necessity of public domain as
a key to efficient economic growth becomes true.
Intellectual Property Rights and Social Development: A Framework 35
In biotechnology, this reliance on the commons for building
blocks of intellectual property is so standard that it even has a name: "bio-
prospecting." Naturally occurring chemicals and compounds, genetic
information in local flora and fauna, traditional medicines, and folklore
may serve as the foundation for technological and cultural advances,
especially in pharmacology, agriculture, etc. Thus, the developing world's
efforts to claim proprietary interests in traditional knowledge and genetic
resources has, predictably, sparked resistance from corporations that wish
to commercialise them at little or no cost. Advocates for the public
domain, with their preference for free information, join hands with the
corporations to keep traditional knowledge and genetic resource in the
global commons. (Chander & Sunder 2004: 1337)
The literature in this regard elucidate the pros and cons of the
perils of the propertisation and evils of common by emphasising on utility
and liberty values but incomprehensible importance of equality values.
The public domain movements care about the dispossessed and remind us
that the movement to privatise the commons generally involved breaking
down a more communal social order and concentrating wealth in the
hands of the powerful. This conception fails to acknowledge disparities in
the ability of individuals to exercise their freedoms.
It turns out a new world hierarchy, one that separates those nations
and regions that are bioliterate from those that are bio-illiterate. This is
the world of DNA space, populated by a self-selecting few who have
chosen to participate in the new bio or nano-technology revolution where
have the ability to produce, read, or translate DNA. This means that even
as biodata begins to drive industries from agribusiness to computing,
cosmetics to chemical manufacturing, few nations have the skills required
to develop, access, and use it. (Martinez et al., 2003: 160)
2.2.6 Dialectical relationship between the Public Domain and
Intellectual Property
The binary rhetoric of intellectual property versus the public domain
masks the ways in which the commons often functions more in the interests
36 Chapter II
of traditional property owners than in the interests of commoners. So there is
a dialectical relationship between the public domain and intellectual
property. Intellectual property flourishes from the public domain, and the
public domain grows as information passes, over time, out of intellectual
property. So the current understanding of the public domain as "the opposite
of property" is deceptive.
In fact, the public domain is essential to private property system
because it offers a sphere of free works upon which capitalists can draw
without either seeking consent or drawing liability. The Lockean labour
theory of property starts with the proposition that "every man has a property
in his own person," from which it follows that "the labour of his body, and
the work of his hands . . . are properly his." (Chander & Sunder 2004:1344)
In the seventeenth and eighteenth centuries patent monopoly system as an
award was justified by natural rights and utilitarian arguments. Natural rights
philosophers argued that man’s right to property is inalienable and that he is
entitled to the wealth created by his labour. John Locke (1690), in his Two
Treatises of Government, argues “every man has a Property in his own
Person. This no Body has any right but himself. The labour of his Body, and
the work of his Hands, we may say, are properly his. Whatsoever then he
removes out of the State that Nature hath provided, and left it in, he hath
mixed his Labour with, and joined to it something that is his own, and
thereby makes it his Property,”. According to the arguments of Locke,
inventions are a form of property and all individuals are entitled to benefit
from the fruits of their labours. So it is the duty of the society to protect
intellectual property on the similar legal framework of physical property.
Thus, granting rights to authors and inventors over their intellectual property
is a just extension of their natural rights to the labour that created the value.
Patent system provides an inherent tension between capitalism’s
commitment to a free market and the countercompetitive nature of
monopolies. Natural rights arguments bridge this tension as society is
obliged to reward inventors for their labour only in proportion to its value. So
there is an informal perception across the borders to provide limited
monopoly to useful inventions. But extension of natural rights arguments for
Intellectual Property Rights and Social Development: A Framework 37
the protection of physical property and intellectual property i.e., knowledge
on a similar platform is problematic on three grounds. First of all, the use of a
physical property excludes others from its use whereas knowledge is
pervasive in nature so the inventor can still use his invention when others
duplicate it. Secondly, exclusion and monopoly right over physical property
is absolute in nature, on the other hand, intellectual property rights provide
only limited monopoly for a specific duration. Finally, the value of
intellectual property is not confined by international boundaries but each
state is compelled to protect the intellectual property rights of other countries
within its jurisdiction and must consider imitation as theft. As natural rights
property is embodied in the individual himself, he may carry the patent
monopoly with him as he moves between locations. (Ben-Atar 2004:4-5)
According to Locke, a person who labours upon resources that are
either unowned or "held in common" has a natural property right to the fruits
of his or her efforts--and the state has a duty to respect and enforce that natural
right. Locke's labour theory of property depends upon the existence of a
commons or public domain of resources from which individuals can freely
take and appropriate.(Waldron 1993: 841) The Hegelian "personality," or
"will," theory is similarly premised upon the existence of a public domain.
According to Hegel, everything is in the public domain until an individual
endeavors to put her "will" into an object and asserts ownership over it. In
The Philosophy of Right, Hegel (1967) asserts "the absolute right of
appropriation which man has over all 'things."' For Hegel, possession or
occupancy is the basis of property rights. But possession is not physical as
much as metaphysical--the important issue is whether one's will has possessed
the external object. Possession satisfies man's "natural need, impulse, and
caprice" to make something his own. Thus, a thriving commons is
instrumental for Hegel, serving as a symbiote of private property. (Rose 1985).
James Boyle (2003) argues that "It is a mistake to suppose that the
public domain and private property are independent realms. Instead, the two
are intimately intertwined, both historically and economically." Progressive
scholars' explain their sanguine portrayal of the public domain to the
assumption that any commons is inefficient, if not tragic". In Michael
38 Chapter II
Brown’s Who Owns Native Culture? (2003) highlight the discourse in
incentives suggests that folklore and traditional knowledge must remain in
the public domain. Intellectual property rights make creation too expensive
and create "choke points" on innovation--can be voiced by Big Pharma and
multinational agricultural enterprises against proposed property rights in
traditional knowledge and genetic resources: added costs may dissuade
discoveries that help people. New claims for property rights in traditional
knowledge and genetic resources are also dismissed based on liberty
grounds: property in ideas, stories, and naturally occurring flora and fauna
conflict with firmly embedded notions of free speech and access. Finally, the
intellectual property versus public domain binary elides the promise of
hybrid property or commons forms, what we call "uncommon property".
From the current structural relationship between intellectual property
and the public domain emphasis that they are made for each other as the
public domain often functions in service of property, not in opposition to it.
TRIPS establishes both Western property rights and the right of foreigners to
own property. To establish a property regime, TRIPS requires substantial
standards of protection for intellectual property in all member states. To
enable foreign ownership, TRIPS imposes national treatment obligations,
requiring states to treat foreigners as equals of their own citizens. This
cocktail of robust private property rights and foreign access thereto is leading
to a steady transfer of the "ownership" of intellectual "products" from the
developing world to the developed world.(Reichman 1995:345)
2.3. Structural Dimensions of Global Power
2.3.1 Hierarchies of Culture and Power
Olufunmilayo Arewa, an scholar, in his unpublished manuscript on
Piracy, Bio-piracy and Borrowing: Culture, Cultural Heritage and the
Globalisation of Intellectual Property suggests that the global power
relationships evident at the negotiating table in the international trade and
other international arenas reflect longstanding global power hierarchies. Such
hierarchies are in large part a consequence of historical patterns of
relationships, particularly hierarchies of culture and power. A relative
ranking of cultures became predominant in the nineteenth century assuming
Intellectual Property Rights and Social Development: A Framework 39
that all societies moved through an identical progression from "savagery" to
"civilisation" and European countries represented "civilisation". Current
Third World countries are ranked on the lower ladder by those at the top.
These hierarchies of culture are important for both global power
relationships and the development of global intellectual property standards.
Such hierarchies became a justification for political domination and
suppression. Those who lived in cultures that were deemed less advanced
were often denied the opportunity to participate in the negotiation of accords
and agreements that directly concerned them. Local communities in such
areas of the world were largely denied any opportunity to participate in the
decision-making process.
Cultural hierarchies also played an important role in the type of
knowledge that came to be protected under global intellectual property
standards. As a result of the evolutionary assumptions about the development
of cultural systems and the existing dynamics of global power relationships,
emerging global intellectual property frameworks largely did not protect
local knowledge. Local knowledge that did find protection in existing
national intellectual property systems and eventually in global frameworks as
well was geographical indications, which is notable because such
frameworks protected types of knowledge that existed in Europe. The
addition of geographical indications provisions to TRIPS, thus, reflects the
experience of national and international lawmaking and the vigorous
advocacy of such protection by the European Union during the adoption of
TRIPS. (Lindquist 1999: 314-315)
Certain types of local knowledge such as folklore were not protected
within existing intellectual property frameworks in the nineteenth and early
twentieth centuries. After the lack of protection of folklore was raised by the
Indian delegation at the 1967 conference, the Berne Convention was amended
in 1971 to include folklore in the enumeration of literary and artistic works.
Nineteenth century hierarchies, thus, played an important role in determining
who participated in decisions about intellectual property and in shaping what
was deemed protectable under emerging global standards. The TRIPS
Agreement echoes this treatment of local knowledge. (Arewa 2006: 160-164)
40 Chapter II
2.3.2 Knowledge Systems of World
Knowledge systems by definition are evolutionary in nature.
Unfortunately, given asymmetry of power and resources, certain kinds
of creativity tend to get much greater institutional attention and support
than other kind of creativity. The dialogue between institutional
scientists and the local knowledge experts can take place through
several channels and cultural processes. One can take the local
knowledge out of its institutional context and test it in modern
laboratories and develop value added products. These products can be
protected through the application of modern intellectual property rights
systems, wealth can be generated and shared among various
stakeholders in an equitable manner.
One challenge, which has been under appreciated in the studies
on indigenous knowledge, is the overlap between private, community
and public domain of knowledge. Transition from one to another or
blend of one with another generates complex obligations on the part of
outsiders who wish to access this knowledge and then share the
benefits. The property rights on the resources vis-à-vis the property
rights on the knowledge can even further complicate the knowledge
context. A community may have a knowledge about a particular
resource use but the ability or the skill to practice it and tailor it to the
specific conditions may not exist equally well among all the
community members.
Reductionism is considered as the only way the expertise or
extraordinary skill evolves in an individual for solving a particular set
of problems. Markets obviously pay more to attention to such things
and people that have value. Such an understanding will lead to the loss
of lot of local minor crops, varieties, old animal breeds, indigenous
tree species will be lost because the contemporary market cannot
generate incentives for their conservation. The right of the future
generation to these biodiverse resources, some of which may have
extraordinary medicinal or other properties has to be recognised. The
Intellectual Property Rights and Social Development: A Framework 41
state, market, civil society organisations and individual activists may
not always coordinate their interests and intentions.4
The contribution of knowledge as a factor of production is being
increasingly given central importance in economic development. The
management of knowledge not just in farms and firms but also in non-farm
sector will become very crucial in coming years. The debate on the relevance
and appropriateness of the conventional IPR regime for Plant varieties,
products based on knowledge of local communities and individual informal
experts and use of local biodiversity even without use of associated knowledge
systems has become an issue.
The rate of knowledge erosion has increased in the post independent
societies. Obviously, there must be endogenous reasons which are responsible
for the erosion of knowledge as well as biodiversity. It is certain that blending
of indigenous/local knowledge with institutional knowledge, science and
technology can unleash tremendous creative power inherent in human
ingenuity (Anil K Gupta 2005).
2.3.3 Structural Dimensions and International Free Trade
A deep structural impetus for economic globalisation and liberalisation
emerged from the increasing mobility of capital. Capital mobility and the
ideological shift toward a radical free market agenda served to enhance the
power of global corporations and particularly those engaged in knowledge-
intensive processes and production. In effect, these structural and ideational
factors delivered these corporations to the forefront of global business
regulation. The growth of offshore capital markets, the removal of capital
controls, financial deregulation, and the cross-border integration of capital
markets has created "an explosion in the availability of private liquidity which
governments are hard pressed to control." As a consequence, transnational
corporations in knowledge-intensive sectors such as computers, software, and
pharmaceuticals "have the resources, motivations and capabilities to roam the
world searching for the kind of opportunities which promise lucrative
4 Anil K Gupta, “Indigenous knowledge: Ways of knowing, feeling and doing,” at
http://www.sristi.org/CONF.PAPERS%201979-2003/indegenous%20knowledge%20-
% 20ways% 20of%20knowing,% 20feeling%20and%20doing.doc
42 Chapter II
rewards." These corporations have become increasingly influential in
policymaking in the United States because of their positive trade balances and
their contribution to the state's competitiveness goals. Now, "the private
interests of the market are integrated into the state, asymmetrically in
accordance with their structural power and organisational capacity, through
their close relationship to state institutions in the policy decision-making
process. . ." (Susan K 2004:369).
Towards an Effective IP Policy-making Process
Source: David Vivas-Eugui and Christophe Bellmann (2004): “Towards development
Oriented Technical Assistance in Intellectual Property Policymaking,” Paper prepared
for "Reflections on IPR Technical Assistance to Developing Countries & Transition
Economies" workshop 15-17 September 2004, Burnham Beeches, UK.
Intellectual Property Rights and Social Development: A Framework 43
The WTO and GATT advocate global free trade which is based on
the presumed benefits of international trade for all parties involved in free
trade. Such presumed benefits derive from the theoretical underpinnings
of international trade theory that delineate the benefits of free trade and
the elimination of trade barriers. During the post-war era, the GATT
system was associated with unprecedented prosperity, albeit with
progressively increasing complexity and accompanying problems. By the
post-independence era, Third World countries had begun to be added to
this existing system, which magnified existing problems in the GATT
system. (Thomure, Jr.1995: 188-189)
Although economic theory suggests that free trade yields benefits
in certain instances, the reality of the implementation of free trade in the
global arena may not always yield such benefits for all involved parties.
This is at least partly a consequence of the fact that international trade
accords are negotiated and implemented in a real world of power
asymmetries and webs of history and culture that often condition the
assumptions and relationships of participants in such negotiations. In
addition, relative competitive advantage, including scientific, technological,
and institutional capacity, can play an important role in determining the
beneficiaries of a particular global intellectual property framework or
bilateral or regional agreements within such a framework. As a result, the
negotiation and implementation of agreements such as TRIPS cannot be
understood without assessing the relative position of the parties at the
negotiating table. In addition, strategic positioning and trade-offs that are
part of the negotiation and implementation processes also influence the
outcome. (Helfer 2004)
Technological innovations are essential for human progress. These
innovations have driven social and economic development over the
centuries. Underlying narratives of appropriation is yet another
asymmetry: relative scientific, technological, and institutional capacity
between North and South. Although not a homogenous group, an
immense technological disparity exists between North and South.
Consequently, many countries in the South do not have extensive internal
44 Chapter II
technological and scientific capacity to enable them to transform local
knowledge into knowledge that might be protected under current
intellectual property frameworks. Without the establishment of structures
within current global intellectual property frameworks intended to help
the development of such capacity, TRIPS has the potential to exacerbate
existing disparities in technological and scientific capacity. This is partly
a result of the relative inflexibility of TRIPS for Third World countries. In
addition, the existence of technological and scientific disparities means
that some countries in the South are less likely to experience the benefits
that are supposed to accompany free trade in the intellectual property
arena. (Arewa 2006: 168-169)
2.4. Intellectual Property Rights and Development
2.4.1. Distributional Problem and Intellectual Property
It is increasingly evident that utilitarianism fails as a
comprehensive theory of intellectual property, either descriptively or
prescriptively. Intellectual property theorists begin with the "utilitarian"
goal of maximising creative output. Because information is assumed by
its nature to be non-rivalrous and non-excludable, free-riding will
eliminate any incentives to produce information. State-granted property
rights in information create the excludability necessary to incentivise
production. Indeed, market failure is cited as the raison d'être for
intellectual property, explaining copyright, patent, and even trademark.
(Landes & Posner: 37-70) A central feature of this account is its focus on
the market as the vehicle for solving distributional problems. Willingness
to pay determines access to the fruits of this information regime. After the
property right is established, the government's role is limited to protecting
that property right--and also to intervene in cases of further market
failures, such as in the case of fair use in copyright.
There are three drawbacks to intellectual property utilitarianism:
(1) it fails descriptively to capture fully the dynamics of cultural creation
and circulation; (2) it fails descriptively as a comprehensive account of
extant legal doctrine; and (3) it fails prescriptively as an account for
deciding the important intellectual property conflicts of the day.(Sunder
Intellectual Property Rights and Social Development: A Framework 45
2006:284) Prescriptively, there is no way of judging which specific types
of utility i.e., public health? rank high, and which cultural productivity?
rank low. The modern law and economics approach would rely upon the
market to spur creation but this leads to the mistake that drugs for
baldness are more important than drugs for malaria because the former
enjoys a multi-billion dollar market, while those who need the latter are
too poor to offer much to save their own lives. Understanding intellectual
property as incentive to create reduces to the claim that the ability to pay,
as evidenced in the marketplace, should determine the production of
knowledge and culture. (Robert Nozick1974)
Utilitarianism's central failure, of course, is its neglect of
distribution. At times, utility in the intellectual property context is defined
simply as the maximisation of creative output. A utilitarian calculus that
presumes overall welfare in the aggregate "doesn't tell us where the top
and the bottom are”. In Nussbaum's (2000) words, "aggregate data aren't
enough for a normative assessment" of how we are doing. We "need to
know how each one is doing, considering each as a separate life."
2.4.2 Growth Theories and Development
Developments in the research and policy-making communities
have stimulated renewed interest in the links between protection of
intellectual property and economic growth. With regard to the former, the
emphasis that new growth theory places the role of technological progress
in the growth process, with research and development (R&D) being
undertaken either to improve existing products or develop new ones, has
stimulated extensive academic research. In the global economy,
individual countries acquire improved technologies through a variety of
channels, both direct and indirectly via spillovers. These channels include
innovation, licensing, trade, foreign direct investment, imitation and
piracy. Since stronger IPR protection has different and sometimes
opposing influences on the flow of technology through these channels, the
overall effects of stronger IPRs on technology acquisition and aggregate
growth are in general ambiguous. The impact of stronger IPR protection
is likely to vary across countries depending on their levels of
46 Chapter II
development, as reflected in their capacities to innovate and imitate.
(Foster & Greenaway 2004:1)
The role of technology in the growth of an economy is analysed by
the endogenous and exogenous growth theory. From the endogenous
perspective, technological change is induced by previous economic
conditions and focuses development on the development of new
technology for the world market, which determines the growth of a
nation-state. According to the exogenous growth theory, technological
changes contribute to increased output without any change to the input
and capital in the production processes.
A well-known, academician, Joseph Schumpeter developed a
growth theory centered on innovation and entrepreneurship. He saw a
dynamic economy not as one in equilibrium, but rather, as one that is
constantly disrupted by technological innovation. Although agreeing that
several factors were necessary for economic development, Schumpeter
regarded entrepreneurial zeal for profit as the driving force of most
innovation. Schumpeter considered that some degree of monopoly power
would be necessary to enable entrepreneurs to continue innovating.
However, he later predicted the demise of entrepreneurs and the
emergence of a new mode of economic organisation in which innovation
and R&D would be conducted by large firms.
In the 1950s, the neoclassical economists, led by Robert Solow,
started focusing on technological progress as an important variable in
economic growth. Solow introduced technological improvements as an
exogenous variable into his growth model and changed the way economists
perceived the contribution of technological progress in the economic growth
of a nation-state. Solow focuses on four variables: out-put, capital, labour,
and knowledge. It analyses how capital, labor and knowledge combine to
produce output, the level of which can determine the growth of an economy
over a period of time. He assumes that technological progress occurs when
there is an increase in the amount of knowledge, and that the production
function constantly returns to scale in relation to capital and effective labour.
Intellectual Property Rights and Social Development: A Framework 47
In the 1980s, new growth theories, also known as new endogenous
growth theories, emerged, formulating technological progress as an
endogenous variable, which could be influenced by government policy.
Paul Romer introduced a model which suggested that the accumulation of
knowledge was the driving force behind economic growth. In order to
encourage people or institutions to be involved in knowledge creation, the
principle of excludability had to be invoked. He argued that two ways can
be used to exclude others: first, keeping the knowledge a secret and second,
invoking effective intellectual property laws. (Romer 1990: 807-827)
The two factors that influenced the economic development of
some countries in 1990s are policy changes emerging from rapid
knowledge creation and the adoption of new knowledge management
practices and, second, changes due to the emergence of new technologies.
The new pattern of global trade started by forging of a deliberate
connection between trade law and IP policies when some advanced
countries began to “use trade measures to curb piracy of intellectual
property rights abroad.” Among other things, this led to the inclusion of
the TRIPS Agreement as one of the agreements in the framework of the
multilateral trade negotiations under the Uruguay Round. That Agreement
established global standards for IP protection that would be binding on
both developed and developing countries, including enforcement and
border measures. The rapid development of new technologies has led to
adaptation to, prevailing IP regimes.5
2.4.3 Different factors that influence Growth and Development
The plea for increased role for IPR protection arises because
intellectual property displays many of the characteristics of a public good.
It is typically non-rival and can be non-excludable. In the extreme, these
characteristics could remove the incentive to invest in R&D, and IPRs
protection can therefore restore that incentive. (Maskus 2000: 471-506)
The importance of R&D and innovation has been emphasised by new growth
theory. In these models, entrepreneurs invest in R&D in the expectation of
5 Kamil Idris, “Intellectual Property –A Power Tool for Economic Growth”, WIPO at
http://www.wipo.int/about-wipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_cover.pdf
48 Chapter II
profiting from their inventions. In addition to new products, innovation adds to
a public stock of knowledge which lowers the cost of future innovation.
Besides rewarding innovation, IPRs protection stimulates the acquisition and
dissemination of knowledge, since the information in patent claims is then
available to other potential inventors. The rate of growth depends upon the rate
of innovation and the stock of knowledge. Strong IPRs protection need not
always yield higher innovation and growth. Giving innovators too much
protection may limit the spread of new ideas and lead to monopoly. Entry by
rivals may be impeded, and successful innovators may have reduced
incentives for developing and exploiting subsequent innovations. (Gilbert
& Newey 1982: 514-526)
In practise, R&D and innovation are heavily concentrated in a
small number of advanced countries, when most developing countries
undertake little or none. But imitation can be a significant source of
technological development in the latter. In this case, providing stronger
IPR protection to foreign firms could cripple domestic industries
previously relying on pirated technologies. In effect, a stronger regime
would act to transfer profits to firms outside the country rather than
encouraging domestic innovative activity, (Deardoff 1992: 33-51)
particularly in relatively closed economies where few domestic
alternatives to the imported product are available. One should not
overstate the case however, since IPR protection could help reward
creativity and risk-taking even in developing economies, with countries
that retain weak IPR protection remaining dependent on dynamically
inefficient firms that rely on counterfeiting and imitation.(Maskus 2000:
471-506)
The strength of IPR protection may also impact upon the levels of
trade, inward foreign investment and technology licensing, all of which
affect productivity and output growth through technology transfer.
Maskus and Penubarti argue that IPR protection has an indeterminate
effect on trade. While firms should be encouraged to export their patented
goods into foreign markets with strong IPRs protection, since such
protection reduces the risk of imitation or piracy, they may choose to
Intellectual Property Rights and Social Development: A Framework 49
reduce their export sales in a foreign market in response to stronger IPRs
protection, because their market power increases as the ability of local
rivals to imitate the firm’s product is curtailed.( Maskus & Penurbarti
1995: 227-248) Mansfield (1995) opines that there is no clear-cut
relationship between IPR protection and inward FDI. Strong protection
reduces the risks of technology leakage through armslength technology
licensing, thus reducing the need for FDI. But, as Smith argues, weak IPR
regimes tend to affect the investment climate adversely, thus discouraging
FDI. While theory highlights the potential importance of IPR protection
for innovation and growth in the global economy, it also suggests that
there could be important differences in the relationship between IPR
protection and growth across countries, depending inter alia, on their
capabilities for innovation and imitation.
From the Rights perspective on development, it has been argued
that provisions in the TRIPS run counter to the letter and spirit of various
conventions and declarations adopted under auspicious of various
specialised agencies of the United Nations. The classic illustration is the
mismatch between the provisions of the UN declaration on the Right to
Development (RTD) and provisions in the TRIPS Agreement. (Raju
Thadikkaran 2006) The institutionalisation of IPR under dominant
paradigms of thought undermines the social development of all
developing societies and indigenous societies in particular. In this context
following session shall examine, how the major schools of thought on
development places Biodiversity Associated Traditional Knowledge and
indigenous communities of developing countries in the public domain.
2.5. Different Schools of thought on Development
2.5.1 Pluralist view on Development
Pluralist scholars articulate more pluralistic norms for the
determination of global social welfare in the intellectual property context.
According to Helfer, NGOs, CSOs, intergovernmental organisations
(IGOs) and other non-state actors have entered into the intellectual
property norm-generating fray and influenced policy-making outcomes.
Because of their ability to shift from intellectual property rule-making
50 Chapter II
venues to human rights and other venues, developing countries are not as
handicapped by the rules of the intellectual property game, and can use
regime-shifting to their strategic advantage. Implicitly, this is a positive
development, particularly since the core institutions of intellectual
property globalisation such as the WTO and WIPO are resistant to the
concerns of developing countries. Underlying this analysis is an
assumption that institutions such as human rights organisations and public
health agencies have the wherewithal to "correct" the excesses of
development caused by the over-extension of intellectual property norms.
These commentators tend to view TRIPS as allowing developing countries
sufficient policy space to participate in a framework that has moved
decisively beyond sovereign calculations of social welfare. (Braithwaite &
Drahos 2000: 571)
2.5.2 Skeptical Views on Development
Skeptical approaches towards development are characterised by
their emphasis on the enduring nature of power differentials among
nation-states, as well as attention to forms of resistance to these
differentials. They view the neo-liberal development paradigm as based
on a toxic "catching-up" rationale, which immediately marks certain
countries as inferior because they are "less developed," while masking the
oppressive activities of "more developed" countries as benign providers of
technical assistance.(Rajagopal 2003:13-16)
In contrast to the neo-liberal approach, which views laws as
neutral rules of the development game, skeptical approaches tend to view
laws generally as instruments of domination, creating legal norms and
standards that are predictably and one-sidedly in favor of the developed
countries. International law has played an important justifying role in the
evolution of neo-liberal development ideology and, conversely,
development ideology has contributed to the expansion of international
law. (Bedjaoui 1979:76)
From a skeptical perspective, neo-liberal legal scholarship often
over-relies on human rights as the primary accepted remedy to the
massive political, cultural, and social problems engendered by
Intellectual Property Rights and Social Development: A Framework 51
development. Indeed, the human rights response to development
encourages the continued compartmentalisation of development, ruled by
economic thinking, from any non-economic concerns. Similarly, calls for
increased democratisation and participation are viewed cynically, as
mechanisms that appeal to political ideals while maintaining material
status quo. Although the "right to development," declared by the U.N.
General Assembly in 1986, has the potential to collapse the boundary
between economic and non-economic development boxes, it has not yet
been a robust source of legal change.(Rajagopal 2003:219-22)
The insistence by developing countries to include the term
"development" in the TRIPS agreement can be seen as part of a
"turnaround is fair play" proactive legal strategy. TRIPS imposed what
many suspected were inappropriately high minimum standards of
intellectual property protection upon developing countries and thus set the
stage for enduring structural inequity.( Susan Sell 2003: 165)
Yet, when developing countries attempted to invoke these
potentially ameliorative provisions in TRIPS, in justifying their enactment
of domestic "flexibilities", they have been met with strong-arm tactics
from countries such as the U.S. with substantial pharmaceutical patent
industries. Moreover, invoking section 301 of Trade and Competitiveness
Act, as well as the negotiation of so-called TRIPS-plus and other bilateral
or regional agreements, the U.S. is currently by-passing the minimum
standards and the negotiated transition periods for developing countries
under TRIPS Articles 65 and 66, which were to allow developing
countries more time for compliance. Even laws designed as concessions
to developing countries, such as the technical assistance provisions of
TRIPS, rarely work to the advantage of these countries. The same is true
of the compulsory licensing provisions, such as the Appendix to the Berne
Agreement, because it was forged in the context of an over-determined
relationship between the developed countries and their former colonies.
From a perspective skeptical of development, this simply illustrates a
truism that law is always embedded in institutions that operate politically
in favor of the more powerful. Neo-liberal proposals about democratic
52 Chapter II
participation in decision-making are yet another masked rhetorical game
of enforcing the unequal conditions of development. (Koepsel 2004: 167)
The whole debate has been placed by Drahos, "underneath the
development ideology of intellectual property there lies an agenda of
underdevelopment. It is all about protecting the knowledge and skills of the
leaders of the pack." (Drahos & Braithwaite 2002:12) Neo-liberal views
maintain that growth necessarily results in an increase in overall social
welfare and thus are not so concerned with distributional consequences.
Alternatively, social concerns are incorporated into the neo-liberal
framework only to the extent that they also demonstrably contribute to
economic growth. While the skeptical views contain some strains that reject
economic growth as the measure of development, it is safe to assume that
the developing country members of the WTO do view economic growth as
a primary vehicle of development. The question for them, however, is to
what extent economic growth should function as the sole measure of
healthy development. There is convergence between the two frameworks,
with some neo-liberal institutions advocating "market-centered agendas for
social justice" or "pro-poor growth agendas." (Obiora 1996: 364)
Skeptical scholars like Peter Drahos tend to articulate the need for
a new substantive norm in the context of intellectual property
globalisation. Given the uncertain benefits of minimum standards of
intellectual property for many developing countries, one might question
why these countries acceded to it. While TRIPS was presented as a win-
win solution to developing countries via linkage bargaining, "most
importer nations did not have a clear understanding of their own interests
and were not in the room when the important technical details were
settled." They vastly over-estimated the benefit that would accrue to their
own domestic intellectual property holders. (Peter Drahos & Braithwaite
2002:11-12)
Another area of intellectual property's application to development
is in the area of traditional knowledge. Chander and Sunder have turned
orthodoxy on its head by suggesting that progressive intellectual property
scholars have over-romanticised the public domain precisely at the time
Intellectual Property Rights and Social Development: A Framework 53
when groups of people who have been historically disempowered have the
potential to claim rights to exclude. The distributional consequences of
open access are not being critically analysed by scholars who take their
entitlement to rights for granted. Chander and Sunder provocatively
highlight the submerged distributional question in intellectual property by
calling into question the standard liberal assumption that the public
domain always serves distributionally positive purposes. (Rose Mary
Coombe 2003: 1171)
2.5.3 The Contemporary Concepts of Development
When Neo-liberal perspective emphasises economic growth and
efficiency, skeptical school pays more attention to distributional consequences
of growth. Development has always been one of the fundamental criteria by
which nations and peoples are defined. The contemporary concept of
development has a quite short history. Notions of progress and growth have
been part of Western discourse for well over a hundred years and, more
generally, since the Enlightenment. "Development" as it is currently
construed (i.e., modernisation and national economic growth), however, is
essentially a post-World War II phenomenon. (Gordon & Sylvester 2004: 2)
But as Richard Peet and Elaine Hartwick explain, "development
differs from economic growth in that it pays attention to the conditions of
production, for example, the environments affected by economic activity,
and to the social consequences, for example, income distribution and
human welfare." The post-developmental school, the one that has rejected
development entirely, insists that "development is, above all, a way of
thinking."(Peet & Hartwick 1999:7)
2.5.4 The Neo-liberal Approach to Development
Most of the development perspectives derives primarily from
economic theory. The flavor has changed over time from a Keynesian
approach that unashamedly approved of state intervention to the current
model, based on neoclassical economics and known alternatively as neo-
liberalism or the Washington consensus. These disparate economic
approaches are denoted here as neo-liberal to highlight that the "neo"
54 Chapter II
aspect is a relatively recent gloss on what is primarily a "liberal" aspect:
"'liberal' in the classical sense of . . . reliance on markets and the price
mechanism, 'liberal' in the contemporary sense of concern for victims, but
'neo' in the sense that suffering was accepted as an inevitable consequence
of reform and efficiency." Because many otherwise liberal development
specialists are increasingly uncomfortable with the costs borne by
developing countries and their inhabitants under the neo-liberal vision.
(Joseph Stiglitz 2004: 22)
According to the neo-liberal world view, the development system
basically works, with some minor adjustments needed as problems arise.
To remedy politically unacceptable differences among the developing and
developed countries, policymakers need just add a little more "equality"
and stir. One underlying assumption is that short term costs of free trade
will result in long term gains by pushing countries into greater economic
growth.(Rittich 2004:202-203)
Neo-liberalism is characterised by certain policy recommendations,
including, among other things, trade liberalisation, foreign direct investment,
and property rights. In the intellectual property world, this neo-liberal
emphasis on property rights resonates very deeply with the dominant
rationale for exclusive rights conferred by copyrights and patents.
Moreover, the WTO Agreement, of which TRIPS is an annex, is based on
a free trade rationale: that economic growth is achieved most efficiently
through free trade. Thus, much of the economic literature on intellectual
property and development focuses on the impact of liberalising
intellectual property laws--which translates into increased state
intervention by strengthening them--on foreign direct investment in
developing countries. Foreign direct investment is thought to be an
optimal way for developing countries to increase their knowledge
capacity, technical innovation and ultimately their economic growth.
(Gervais 2005: 515-516)
One important consequence of this neo-liberal paradigm on global
intellectual property policy-making is that the policy debate over access to
essential medicines is not easily expressed in intellectual property law or
Intellectual Property Rights and Social Development: A Framework 55
trade law generally. A second consequence of the neo-liberal world view
is that standards grounded in economic rationales, by virtue of being hard-
wired into TRIPS, are privileged over possible alternative rationales based
on different models of development. Neo-liberal concepts of development
mean that the term "development" is already captured by a discourse that
privileges the efficiency norms and incentive rationale of intellectual
property, rather than the human development and basic needs approach
favored by those advocating access to goods protected by intellectual
property. (Helfer 2004: 78) But neo-liberal way of thinking about
development, many are registering strong reservations about the costs that
developing countries and their populations are bearing for the
liberalisation of their markets. Deep integration can only function well
under certain conditions. (Birdsall & Lawrence 1999: 134)
Integrating intellectual property standards through TRIPS is
supposed to result in long-term economic growth through innovation
across all member states, at the cost of short term decreases in access to
goods because of higher prices. For developing countries, this innovation-
driven growth (created primarily through foreign direct investment and
accompanying technology transfer) may be an abstract or perhaps even
non-existent benefit. Firms may not enter into the poorest countries
regardless of the level of intellectual property protection they offer
because no profit is likely to be made where consumers cannot pay.6
Thoughtful observers across the political spectrum have voiced
increasing concern that the intellectual property minimum standards of
TRIPS are simply inappropriate for the poorest countries and of
questionable benefit for some of the middle income countries. TRIPS
severely constrained the policy-making space for countries in areas of
critical concern for public health. For example, prior to TRIPS, India was
able to design a patent law policy that suited its national circumstances.
Its current relative success in this intellectual property-driven industry is
6 Commission on Intellectual Property Rights (2002): “Integrating Intellectual Property
Rights and Development Policy,” at http://www.iprcommission.org/graphic
/documents/final_report.htm
56 Chapter II
attributable to this flexibility, which is no longer available to countries at
relatively low levels of development. (Omer 2002: 559-561)
2.5.5 The Human Capabilities Approach
The debate has become vibrant with the emergence of the Human
Capability Approach. Two relatively recent nuances on the concept of
development are described: (1) the human capabilities approach
popularised by economist Amartya Sen and advocated in legal scholarship
by philosopher Martha Nussbaum; and (2) the global public goods
approach which are grounded in neo-liberal development economics
rather than concepts of development that are more based on political,
cultural or post-colonial theory. These newer ways of liberal thinking
about development share a common ground in the creation of a
substantive equality principle to guide intellectual property globalisation,
similar to the creation of a substantive equality standard of comparison in
the area of development economics. (Pereira Neto 2005:2)
Recent insights from the field of development economics suggest
strongly that intellectual property should include a substantive equality
principle, measuring its welfare-generating outcomes not only by
economic growth but also by distributional effects. When intellectual
property globalisation encounters development, even in debates that
prominently feature development concerns, dysphoria ensues. This is true
even though the term "development" features prominently in the basic
legal texts that purportedly address differentials among disparately-
situated member states in an otherwise formally equal global intellectual
property system. For example, the TRIPS Agreement references the
"developmental . . . objectives" of all member states as well as member
states' ability to "adopt measures necessary to protect public health and
nutrition, and to promote the public interest in sectors of vital importance
to their socio-economic and technological development."7
7 Agreement on Trade-Related Aspects of Intellectual Property Rights, (1994):
Marrakesh Agreement Establishing the World Trade Organisation, Annex 1C, Legal
Instruments--Results of the Uruguay Round, I.L.M., vol. 33 (81), article.8
Intellectual Property Rights and Social Development: A Framework 57
Intellectual property, when it encounters development either
domestically or globally, must incorporate a more comprehensive
understanding of social welfare maximisation. This alludes not only to the
material divide figuring in other debates on intellectual property, but also
to an unnecessary ideological divide between efficiency and
distributional-driven understandings of development. (Rittich 2004:225)
And while there is a rapidly increasing body of scholarship on
protection of traditional knowledge, relatively little attention has been paid
to local development cultures and values outside this context. Nor, except
in the context of technology transfer and technical assistance to implement
intellectual property minimum standards, has much attention been paid to
whether and how intellectual property globalisation should contribute to
what some development or welfare economists, taking a developmental
ethics perspective, have called human capability potentials, culminating in
the so-called human development approach. (Ghosh 2003: 497)
The "capabilities approach" to development pioneered by Amartya
Sen (1999) and Martha Nussbaum (2003) offers a critique of the utilitarian
account of development as measured by GDP or technological
advancement alone. Sen's vision of "development as freedom" is pluralist,
measuring development by assessing an individual's ability to exercise
many freedoms, including market-oriented freedom.
One can readily see intellectual property law as a means of
development and implicitly as a means of thwarting development in the
health and traditional knowledge context. Patents and copyrights determine
our access to drugs and education, while trademarks and rights of publicity
define the contours of freedom of speech and the ability to play with
cultural icons. Development must entail not only economic growth, but also
a life that is culturally fulfilling. Recognising people's humanity requires
acknowledging their production of knowledge of the world. This
recognition, in turn, fuels remuneration to new creators. A U.N. report puts
it, "at its best, the Knowledge Society involves all members of a
community in knowledge creation and utilisation." Hence, "the Knowledge
Society is not only about technological innovations, but also about human
58 Chapter II
beings, their personal growth, and their individual creativity, experience
and participation." (Amartya Sen 2004:39)
Amartya Sen’s idea of Development as Freedom reflects from his
statement that "The ends and means of development require examination
and scrutiny for a fuller understanding of the development process; it is
simply not adequate to take as our basic objective just the maximisation of
income or wealth, which is, as Aristotle noted, 'merely useful and for the
sake of something else.' For the same reason, economic growth cannot
sensibly be treated as an end in itself. Development has to be more
concerned with enhancing the lives we lead and the freedoms we
enjoy."(Amartya Sen 1999:14)
The assumption that wealth or utility maximisation is the sole
legitimate measure of social welfare meant that a single economic growth
indicator (i.e., gross national or gross domestic product) was thought to
suffice in the development context. But this measure could actually
miscalculate welfare: a majority of a country's people could be living without
access to the essential goods and services required for human functioning, with
a small percentage of its population capturing a disproportionate amount of the
overall wealth. Recognising this shortcoming in the standard welfare
economics approach, economists such as Amartya Sen began to theorise an
alternative human capability approach towards the measurement of social
welfare, which has been adopted by mainstream development institutions.
Since 1991, the Human Development Index composed of three variables--
life expectancy at birth, educational attainment, and the standard of living
measured by real per capita income has been used annually by the United
Nations Development Programme to measure social welfare within and
across nations. Yet this human capability approach based on the idea that a
society is not fully developed until certain basic needs are provided for all
of its people, has not yet informed intellectual property globalisation.
(Malhotra 2004: 13-18).
Development encompasses not only economic but also cultural,
social, and political dimensions of national well-being, a more deliberate
consideration of these newer concepts in development economics could
Intellectual Property Rights and Social Development: A Framework 59
ameliorate intellectual property's one-sided emphasis on pure wealth- or
utility-maximisation. In the trade context of TRIPS, this emphasis tends to
favor countries with well-established intellectual property industries and
compounds a bias towards measuring the development effects of
intellectual property solely through economic growth. The net result is an
intellectual property balance that has become increasingly lopsided in favor
of producer interests, possibly to the detriment of overall global social
welfare and clearly to the detriment of the most vulnerable populations.
(Peet & Hartwick 2002: 222)
Classical scholarship feel the difficulty inherent in the dual
balancing act of intellectual property globalisation: the domestic welfare
balance between the producers and users of intellectual property along with
the simultaneous global welfare balance between developing and developed
countries. They insist on the primacy of the nation-state as the initial arbiter
and enforcer of the domestic welfare balance. In their view, the basic
challenge with globalisation is how to protect that domestic balance from
being corrupted from undue pressures introduced by globalised trade
regimes such as TRIPS.(Chon 2006:2 852-53)
According to this view, economic growth is a necessary but not
sufficient condition to development because an aggregate measure of
growth . . . pays no attention to how that output is distributed amongst the
population; it says nothing about the composition of output (whether the
goods are consumption goods investment goods or public goods such as
education and health provision), and it gives no indication of the physical,
social and economic environment in which the output is produced.
(Thirlwall 2002: 42)
Why should intellectual property globalisation heed this approach?
That it is an offshoot of welfare economics makes it highly relevant in any
reconsideration of the instrumental purpose of intellectual property, which in
its current guise is heavily rationalised within an economic framework. That it
is grounded as well in political philosophy means that it is connected to a set of
normative justifications beyond simple utility maximisation and thus compels
a fresh look at intellectual property, perhaps through a more cosmopolitan set
60 Chapter II
of theoretical norms. In any event, a practical philosophical approach that asks
what the goal of government ought to be in providing its citizens with basic
needs comports with the instrumental purpose of intellectual property in
promoting "Progress" domestically or generating welfare globally.(Chon
2006: 2876-78)
2.5.6 The Global Public Goods Approach
All intellectual property specialists are aware that public goods
theory addresses the non-rivalrous and non-exclusive qualities of goods. In
the case of intellectual property, these goods are called knowledge goods.
Unprotected knowledge goods such as creative works or inventions may be
subject to free riding and thus lead to sub-optimal levels of innovative
activity. Hence the "public goods problem." So to address this market
failure, it is necessary for the state to intervene by providing legal rights to
exclude others in the form of copyrights and patents. This will enable
market transactions in knowledge goods among rational, rights-bearing
actors, and ultimately encourage the production and widespread distribution
of more knowledge. (Chon 2006: 2880)
Economist Joseph E. Stiglitz (1999) states generally about public
goods: "The central public policy implication of public goods is that the
state must play some role in the provision of such goods; otherwise they
will be undersupplied." In the case of knowledge goods, intellectual
property provides a legal incentive for authors and inventors to produce
them. Public goods theory locks powerfully into the neo-liberal belief in the
primacy of property rights in the form of IPRs. Intellectual property law is
said to enhance dynamic efficiency (that is, the rate of innovation over the
long run) at the cost of static efficiency (increased prices and greater
impediments to access generated by intellectual property laws in the short
run), depending on the term of protection. (Correa 2003: 411)
Pure economic theory would apply the term "public goods" to a tiny
class of goods (perhaps only the military) whereas sociologists and political
scientists might apply it to any good the non-provision of which generates
largely negative externalities. Moreover, the regulatory or policy
consequences flowing from the designation of a good as a "public good"
Intellectual Property Rights and Social Development: A Framework 61
are far more diverse than we are accustomed to thinking about in the
intellectual property arena: there are many ways to incentivise innovation
than to automatically privatise goods through a scheme of exclusive rights
such as patent or copyright. (Chon 2006: 2881-82)
Drahos (2005) considers that these global public goods theories
build on the longstanding insight that many public goods, including
knowledge goods, are not pure public goods, but rather are a mix of public
or private or are "impure" public goods. "Publicness and privateness are
highly variable and malleable social norms." Particularly due to the
proliferation of global actors, including non-state actors, the concept of
public requires critical re-examination in a global regulatory environment.
The public can no longer simply be reduced to the state; the public includes
civil society, corporations, as well as the state--and in the context of
globalisation, "transnational nonstate, non-profit actors."
Just as public goods (knowledge) can be turned by policy choices
into private goods (as through intellectual property laws), the reverse is true
as well. Private goods such as education can be made the subject of public
provision through the public education system. Thus, public goods theorists
include an enormous array of things under the rubric of potential public
goods. Whether framed by the disciplines of political science or
international relations, where the concern is to avoid prisoner's dilemmas,
or by the economist's perspective of avoiding negative externalities, global
public goods theory is a fresh look at a neo-liberal theory badly in need of
repair in a globalised context. (Kaul et al 2003: 22&88)
2.6. Indigenous Knowledge in the context of Globalisation
2.6.1 Globalisation of IPR and Indigenous Knowledge
Conventional narrative depicts globalisation as a triple process of
economic, social, and political transnationalisation. It facilitates by a
centralised regulatory scheme in a number of spheres including economic,
social, human, natural, and material resources. Globalisation depicts
structural changes in transitional structures within the rubric of capitalism.
(Santos 1995: 253-259) In the knowledge-based, digital and information
62 Chapter II
society, IP plays a very crucial role. Within the logic of globalisation,
TRIPS as a centralised or global regulatory regime on IP could be
perceived as a necessity, especially in relation to international globalisation
and opening of markets. The shrinking of state sovereignty over IPR
became inevitable in order to yield a more extensive and pervasive IP
regime whereby weaker states are circumscribed in their ability to deploy
IP protection to foster peculiar national interests. The international arena,
dominated by stronger players, especially the United States and its allies,
became the appropriate site for the regulation of IP.
Given that the inquiry into indigenous knowledge-protection
protocols is centrifugal in orientation, how does it fit into the global
direction of IPR as reflected by the TRIPS Agreement? There is no doubt
that globalisation has accentuated homogenisation in its diverse
ramifications: economic, social, political, industrial, informational, cultural
assimilation and erosion, migration pattern, other forms of
transnationalisation, and so on. Conversely, it has heightened an
unprecedented global networking of hitherto uncoordinated interests and
coalitions. It has yielded the flourishing of alterity, especially in the cultural
expression and resistance of indigenous and/or minority cultures to forces
of domination or homogenisation, including the blossoming of what a
prominent scholar calls the "cosmopolitan alternative. (Waldron 1995: 93).
Globalisation's promotion of laissez-faire free-market capitalism has
increased international and intranational economic disparities, with
indigenous peoples consistently on the losing end of the spectrum. As
globalisation has intensified, the gap between per-capita incomes in rich
and poor countries has widened as commercial globalisation is proposed
and pursued on behalf, and for the benefit of, First World countries. In
regards to indigenous peoples in particular, scholars are now asking the
question of what is the appropriate balance between their respective
contributions and their rightful share in the vastly increased output of goods
and services which have been made possible by the combination of
traditional knowledge with modern science. The method by which that "fair
share" is assessed is of particular importance for indigenous groups, to
Intellectual Property Rights and Social Development: A Framework 63
whom "fairness and equality," as defined in a global world market, may be
inconsistent with indigenous worldviews altogether. (Tsosie 1996: 225-226).
The digitalisation of information and globalisation of
communication also poses a distinct threat to the cultural survival of
indigenous peoples. Today, it is far easier than ever before for indigenous
peoples' cultural knowledge to be appropriated illicitly. In one brief
moment, sacred and confidential information can be placed irreversibly in
the global public domain, where it can then be appropriated, transformed
and commodified for the world. Thus, while mobilising indigenous
movements, technology has also made possible the almost instantaneous
distribution of sacred indigenous knowledge. The challenge of protecting
indigenous knowledge from mass dissemination through technology is
perhaps one of the biggest problems faced by indigenous groups today.
(Daes 2001: 144)
Under the current intellectual property framework, the
appropriation, distortion, and commodification of indigenous peoples'
traditional knowledge can occur almost instantaneously and without legal
redress. It is clear that intellectual property regimes fail to adequately
capture all of the cultural and economic significance of community-based,
traditional knowledge or to ensure the perpetuation of local knowledge
systems. Given that so many resources have been put into developing
comprehensive laws to ensure the protection of intangible knowledge, one
might ask why current legal systems do not safeguard the cultural and
intellectual property of indigenous groups. The problem is multi-faceted.
First, intellectual property law was largely developed in the West, and its
models are based on a capitalistic philosophy designed to serve a market
economy. The mere fact that works of intellectual creativity and
innovation, so-called "works of the mind," are granted the status of
protectable individual property itself represents a Western view. Western
concepts of exclusive ownership, alienability and monopoly rights are
largely inconsistent with indigenous peoples' traditional forms of
ownership, which tend to focus on collective, intergenerational creations
64 Chapter II
that often do not contain rights of alienability and which are produced from
community-based economies.(Riley 2000: 183-184)
Similarly, patent laws presume that the act of innovation is largely
individual, rather than social, and that innovators are motivated by financial
gain. This places the responsibility on the state, rather than on innovators,
to ensure that new knowledge is used responsibly. Such is not the case in
indigenous communities, where custodians of local knowledge believe that
knowledge is socially created through interaction among humans, animals,
nature and the spirit world, that individuals are obliged to put their
knowledge to use for the good of the community, and that holders of such
knowledge have a responsibility to ensure its proper use. (Lawrence Barsh
2001: 153)
Realising that Western intellectual property law does not
accommodate indigenous works, nation-states and international
organisations have attempted to define indigenous cultural knowledge in
such a way as to make it amenable to intellectual property protection. This,
too, has proven problematic, as many indigenous peoples believe such
efforts are inconsistent with rights to self-determination. It is difficult, if not
impossible, for such entities to fully comprehend the role of oral tradition,
indigenous medicine, and folklore in any particular community. When such
attempts are made, indigenous knowledge, lifeways, and values are often
mischaracterised or misunderstood. (Daes 2001: 146)
While the efficacy of such databases is apparent - there is a value,
after all, to articulating, organising, and putting others on notice of
protected materials - such proposals have been met with great opposition in
indigenous communities, because many believe that databases will only
make it easier for those who wish to exploit cultural heritage and steal
secret and sacred traditions. The idea of disclosing traditional knowledge
within a public forum - even one with controlled access - represents a risk
of exploitation and destruction that is, for many, far too great.(Bodeker
2003: 803-804)
Also, integral to respecting indigenous rights to self-determination
is recognition of the differences among indigenous communities. While
Intellectual Property Rights and Social Development: A Framework 65
there are significant overlaps in the worldviews of indigenous peoples
across the globe, there are many variances that the groups themselves must
contemplate and account for in defining their own property. Each group
represents unique peoples with a particular history and culture. The great
diversity of indigenous peoples means there is no single position on these
issues and certainly no one position that be called an indigenous one.
(Coombe 2001:227).
As Barsh points out: "Indigenous peoples possess their own locally-
specific systems of jurisprudence with respect to the classification of
different types of knowledge, property procedures for acquiring and sharing
knowledge, and the nature of the rights and responsibilities that attach to
possessing knowledge." The ways in which indigenous peoples characterise
and define property are as varied as the peoples themselves, and Westerners
must resist the urge to narrow and define the "indigenous
perspective."(Lawrence Barsh 1999: 74-75)
Many indigenous groups simply lack access to the essential
information and resources necessary for them to utilise intellectual property
laws, even once they are in place. The continuous process of monitoring
and challenging patents, for example, places an enormous financial burden
on indigenous peoples and the NGO's that represent community interests.
In fact, enforcement of most transnational intangible property protections is
"well beyond the capacities of all but the well-funded NGOs." As
intellectual property laws are imposed on countries with significant
indigenous populations, indigenous peoples are forced to reclassify, remap,
and remake their traditional knowledge in the image of the coloniser if they
wish to avail themselves of existing intellectual property protections. They
must conceive of the very essence of traditional life as broken down into
distinct sticks of property, and protect the bundle from pirates and
infringers just to preserve the right to their continued existence. (Rose Mary
Coombe 2001:227& 281)
The desire of indigenous peoples to contribute to an alternative
vision of IPRs should be seen in the context of the wave of indigenous
renaissance in the global constitutive process. Indigenous peoples have
66 Chapter II
linked their quest for self-determination to the protection of their
knowledge, thus making knowledge the new frontier of the indigenous
question in international law. (Rose Mary Coombe 1998:79) Since 1992,
beginning with the set of international environmental instruments
articulated in Rio, indigenous peoples have become active participants in
policy decisions that affect them. As a testament and highpoint of their
activism, there is now the U.N. Permanent Forum on Indigenous Issues.
(Carey & Wiessner 2001) In addition, there is a pending expectation of an
eventual United Nations Draft Declaration on the Rights of Indigenous
Peoples. This document, now in draft form, articulates in a comprehensive
manner, among other things, the importance of knowledge in the survival
of indigenous peoples. The integration project is both the consequence and
part of the logic of indigenous renaissance. (Daes 1993)
Indigenous successes in the twentieth century happened in the
contexts of globalisation and indigenous renaissance. Both phenomena are
inextricably linked and reinforcing. Globalisation, to some extent,
empowers minority cultures and generates increased consciousness of
cultural membership and identity. Indigenous renaissance and its impact on
boosting various forms of cultural emancipation are incidences of
globalisation. In fostering homogenisation, globalisation also engenders
resistance to domination and cultural appropriation which the integration
initiative symbolises. (Rose Mary Coombe 1998: 278) Cultural
preservation and expression are platforms for resisting domination. Among
the diverse ways in which globalisation has enhanced indigenous
emancipation and the integration project in the last few years is by
facilitating a networking culture amongst indigenous peoples across the
globe. (Santos 1995: 257) This trend has enabled the world's indigenous
peoples to press forward in influencing the global constitutive process
exemplified, for instance, by the elaborate debate on IP. Here, globalisation
fulfils one of its significant and less reckoned expectations, namely,
generating "uncontrollable dangers" of "unsuspected emancipations."
(Santos 1995: 261)
Intellectual Property Rights and Social Development: A Framework 67
Even though the TRIPS Agreement symbolises globalisation by
prescribing minimum statutory conditions of IP for global application, it
did not dispense with the national character of IPRs. TRIPS' encroachment
on the rights of national governments is not absolute and should not be
taken as foreclosed. (Susan Sell 2002: 193) For instance, under Article 27.2
of TRIPS, national governments have some leverage in determining the
patentability of particular subject matters. That provision permits national
governments to exclude from being patented inventions whose exploitation
may be offensive to ordre public. Inventions that impinge upon indigenous
cultural sensitivities have been linked to the ordre public exception under
that provision. Since knowledge-protection protocols are products of the
contexts and culture in which knowledge is generated, one unique aspect of
such regimes is that they must of necessity be in harmony with indigenous
cultural sensitivities. (Chidi Oguamanam 2004:169)
It is expected to set the stage for a global framework for the
protection of indigenous knowledge on the basis of indigenous conceptions,
and as a global plan of action on how to conserve biological diversity. To
this extent, the integration project may not be in any serious conflict with
globalisation, as it appears on first consideration. (Chidi Oguamanam
2004:169)
2.7 Summary
The concept and nature of the property, its changing notions as
discussed above, evolved in the course of time and were shaped by the
philosophical, cultural, economic and socio-political aspects of the
particular stage of the society. In the contemporary scenario, Intellectual
Property received great attention as the basis of economic development and
competitive advantage. But the scope and duration of Intellectual Property
Rights (IPR) have widened substantially giving excessive importance to
private interests, so that today many of these rights have become virtually
perpetual and unqualified.
The unique feature of proprietary rights, as revealed by diverse
perspectives, is on the inherent dichotomy between private and public
interests. When the power of the owner is stressed in the construct of
68 Chapter II
property rights, property rights are deemed to become a commodity and on
the other hand, the social aspect of ownership stresses the interests of
society as a whole. What IP has common with tangible or physical property
is the political significance of exclusion from possession and enjoyment of
real property that is virtually as palpable as the property itself. With IPR the
problem becomes how "to measure out" the scarcity between the owner and
society. The "scarcity" created by the granting of IPR is modulated by
different constructs of property rights, which inevitably affect the relation
between the values at stake.
Modern property law is founded upon a variety of normative
theories from Lockean labour theory to economic reasoning to theories of
personhood. The goal in recognising a variety of values is not to prioritise
one over others, but to maximise each value where possible. Extension of
natural rights arguments for the protection of physical property and
intellectual property i.e., knowledge on a similar platform is problematic on
three grounds. Firstly, Intangible nature of knowledge can not excluded as
physical property. Secondly, exclusion and monopoly right over physical
property is absolute in nature, whereas IPR provide only limited monopoly
for a specific duration. Finally, the value of IP is not confined by
international boundaries but each state is compelled to protect IP value
within its jurisdiction and must consider imitation as theft.
At the beginning of the twentieth century, the metaphor of property
as a "bundle of rights" was being used to describe a complex set of legal
relations in which individuals are interdependent. The idea of property was
ushered into the legal framework by legal statutes and judicial decisions
only with the emergence of the "welfare state." In the 1950s the
intervention of the state in the market was challenged and market-oriented
"ultra-minimum state” is encouraged.
Communitarians maintained that justice cannot be detached from
any conception of the "good life," and that rights depend for their
justification on the moral importance of the ends they serve. Because IPR
in the international arena are tailored to enhance the interests of industrial
exploitation of intellectual capital by highlighting the role of the rights
Intellectual Property Rights and Social Development: A Framework 69
owner and underplaying the role of other needs. The public domain school
of thought argues that the purpose of intellectual creation to serve all
humankind is better fulfilled by allowing intellectual creation to remain in
the public domain. Thus, the TRIPS Agreement transformed a global public
domain by propertising the information resources of the West but leaving in
the commons the information resources of the rest of the world, such as
genetic resources and Traditional Knowledge (TK). In biotechnology, this
reliance on the commons for building blocks of IP is so standard that it
even has a name: "bio-prospecting." Thus, there is a dialectical relationship
between the public domain and IP. IP flourishes from the public domain,
and the public domain grows as information passes, over time, out of IP. So
the current understanding of the public domain as "the opposite of
property" is deceptive.
Locke's labour theory of property depends upon the existence of a
commons or public domain of resources from which individuals can freely
take and appropriate. The Hegelian "personality," or "will," theory is
similarly premised upon the existence of a public domain. The public
domain and private property are intimately intertwined, both historically
and economically. So folklore and TK must remain in the public domain.
This cocktail of robust private property rights and foreign access thereto is
leading to a steady transfer of the "ownership" of intellectual "products"
from the developing world to the developed world.
The global power relationships evident at the negotiating table in
the international trade and other international arenas reflect longstanding
global power hierarchies in culture and power. Cultural hierarchies also
played an important role in the type of knowledge that came to be protected
under global IP standards and those related to biodiversity associated
traditional knowledge in particular.
With the advent of information technology and biotechnology that
touch vital interests like freedom of speech and the sanctity of life
introducing a more conscious ethical and political dimension to the
question of property rights. IP embraces all the intangible assets at stake,
including raw genetic resources, advanced agricultural and pharmaceutical
70 Chapter II
research, and the ethnobiological knowledge that often transforms a locally
useful organism into a globally valued application of biotechnology.
Capital mobility and the ideological shift toward a radical free
market agenda served to enhance the power of global corporations and
particularly those engaged in knowledge-intensive processes and
production. Thus, the private interests of the market are integrated into the
state, asymmetrically in accordance with their structural power and
organisational capacity, through their close relationship to state institutions
in the policy decision-making process. Though the WTO advocates global
free trade based on the economic theory that incur benefits to all, the reality
of the implementation of free trade in the global arena may not always yield
such benefits for all involved parties. Southern countries do not have
extensive internal technological and scientific capacity to enable them to
transform local knowledge into knowledge that might be protected under
current IP frameworks. Without the establishment of structures within
current global IP frameworks intended to help the development of such
capacity, TRIPS has the potential to exacerbate existing disparities in
technological and scientific capacity.
Indeed, market failure is cited as the raison d'être for intellectual
property, explaining copyright, patent, and even trademark. A central
feature of this account is its focus on the market as the vehicle for solving
distributional problems. Utilitarianism's central failure, of course, is its
neglect of distribution. New growth theories rely on knowledge as the
driving force behind economic growth through the principle of excludability
either keeping the knowledge a secret or invoking effective IP laws led to the
inclusion of the TRIPS Agreement as one of the agreements in the framework
of the multilateral trade negotiations under the Uruguay Round. The rate of
growth depends upon the rate of innovation and the stock of knowledge.
However, giving innovators too much protection may limit the spread of new
ideas and lead to monopoly. In effect, a stronger regime would act to transfer
profits to firms outside the country rather than encouraging domestic
innovative activity, particularly in relatively closed economies where few
domestic alternatives to the imported product are available.
Intellectual Property Rights and Social Development: A Framework 71
Skeptical approaches towards development are characterised by
their emphasis on the enduring nature of power differentials among nation-
states. International law has played an important justifying role in the
evolution of neo-liberal development ideology and, conversely,
development ideology has contributed to the expansion of international
law. TRIPS imposed minimum standards of IP protection upon developing
countries and thus set the stage for enduring structural inequity. The human
capabilities approach popularised by economist Amartya Sen and Martha
Nussbaum suggest strongly that IP should include a substantive equality
principle, measuring its welfare-generating outcomes not only by economic
growth but also by distributional effects. Development encompasses not
only economic but also cultural, social, and political dimensions of national
well-being, a more deliberate consideration of these newer concepts in
development economics could ameliorate IP one-sided emphasis on pure
wealth or utility maximisation.
In regards to indigenous peoples in particular, scholars are now
asking the question of what is the appropriate balance between their
respective contributions and their rightful share in the vastly increased
output of goods and services which have been made possible by the
combination of TK with modern science. Under current IP regimes, the
appropriation, distortion, and commodification of indigenous peoples' TK
can occur almost instantaneously and without legal redress. Western
concepts of exclusive ownership, alienability and monopoly rights are
largely inconsistent with indigenous peoples' traditional forms of
ownership, which tend to focus on collective, intergenerational creations
that often do not contain rights of alienability and which are produced from
community-based economies. So IP laws presume that the act of innovation
is largely individual, rather than social, and that innovators are motivated
by financial gain. Whereas custodians of TK believe that knowledge is
socially created through interaction among humans, animals, nature and the
spirit world, that individuals are obliged to put their knowledge to use for
the good of the community, and that holders of such knowledge have a
responsibility to ensure its proper use. Indigenous peoples possess their
own locally-specific systems of jurisprudence with respect to the
72 Chapter II
classification of different types of knowledge, property procedures for
acquiring and sharing knowledge, and the nature of the rights and
responsibilities that attach to possessing knowledge. The desire of
indigenous peoples to contribute to an alternative vision of IPRs should be
seen in the context of the wave of indigenous renaissance in the global
constitutive process. Indigenous peoples have linked their quest for self-
determination to the protection of their knowledge, thus making knowledge
the new frontier of the indigenous question in international law.
In brief, the foregoing discussion in this chapter reveals that
proprietary rights and its protection were central to almost all perspectives
and development debates. However, the built in and inherent bias in favour
of the primacy of private over public stand in the way of genuine
appreciation from the perspective of social development. When it comes to
the protection of IP especially those related to biodiversity associated
traditional knowledge, there was a huge vacuum except in the capabilities
approach advanced by Martha Nussbaum and nobel laurite Amartya Sen.
As already mentioned earlier, this line of scholarship does not perceive
economic growth as an end in itself.
Development encompasses not only economic but also cultural,
social, and political dimensions of national well-being, a more deliberate
consideration of these newer concepts in development economics could
ameliorate intellectual property's one-sided emphasis on pure wealth- or
utility-maximisation. In the trade context of TRIPS, this emphasis tends to
favor countries with well-established intellectual property industries and
compounds a bias towards measuring the development effects of
intellectual property solely through economic growth. The net result, it
rightly argued, is an intellectual property balance that has become
increasingly lopsided in favor of producer interests, possibly to the
detriment of overall global social welfare and clearly to the detriment of the
most vulnerable populations.