Intellectual Property Rights require being creative. But what is creativity, and can it encompass within it the dimensions of life?
With time priorities are shifting from social need to potential return on investment, and this has served as the principal criterion for commercially guided research. If this continues, there will be a period the rivulets of knowledge(s), and learning will be forgotten and become extinct.
COMPREHENDING BIO-PIRACY
Bio-piracy is the act of financially abusing normal happening biochemical or hereditary processes, by getting licenses that limit its future use while neglecting reasonable compensation to the communities from whom it originates. The term is in vogue for explaining the situation where indigenous knowledge of nature is being used by others without furnishing due acknowledgment to the holders of the same. It is associated with intellectual property rights and is concerned with traditional knowledge or know-how of the local communities enclosed by the biodiversity.
The problem of bio-piracy has broader international implications that has made it an urgent issue for all countries. Bio-piracy as a threat to biodiversity is a result of the IPR regime and the conflicting interests of the two groups i.e., Transnational companies and natural diversity that has posed challenges upon the Western assumption on the propriety of patents. The conflict has also presented the problem of misunderstandings and disagreements of the developing countries with Western patent laws. Bio-piracy disputes are several, and most of the episodes suggest that bio-piracy patents are contrary to the wishes of indigenous communities who are inclined to keep certain erudition sacred.
The seed of the earth: Can we claim?
“Life is not an invention” when Vandana Shiva wrote this phrase she meant to convey to the market that it cannot apply for the patent claiming they created a new life.
Over the last two decades, IPRs and particularly patents have covered a large field of activities. The corporations have successfully influenced patent laws to acquire the ownership of life and control over the survival essentials like seeds and medicine, and other life forms. Such ownership is criticized by authors for being violative of Article 21 of the Constitution of India. IPRs have been expanded to cover the living systems and organisms in the fake garb of ‘innovation’ and ‘invention’. Such distortions are compositions of big corporations dealing in pharmaceuticals, cosmetics, and agribusiness, etc.
With time corporations have acquired controlling powers to dominate the diversity of life on the earth and are influencing people’s indigenous knowledge by proposing and implementing new property rights. There are cases around the globe and particularly in India where corporations have robbed people out of their knowledge and have registered the products of the same in their names. There is no innovation in these cases; instead, they are instruments of monopoly over life itself. Life forms are now redefined as ‘machines and manufacture’ snatching the integrity and self-organization that life held. A new epidemic of bio-piracy has been unleashed by the involvement in the piracy and patenting of traditional knowledge.
Patents on life embed creativity intrinsic to the living systems under which happens the reproduction and exists the freedom of self-organization. Patents going beyond, engird the internal ranges of the figures of plants, animals, and women. They are capturing free locutions by converting publicly kindled information into private property. IPRs that are supposed to reward and stimulate creativity concerning life-forms are in turn stifling the creativity fundamental to the social production of knowledge. The world has moved generations to replace the ideology of terra mater with that of terra nullius (empty lands been expanded to empty lives).
THE MODEL OF IPR: AN INSTRUMENT TO CONTROL THE COMMONS
Biodiversity is a social and cultural issue, and the biological resources exist under the common property systems governed by the principles of justice and sustainability. IPR regime on the other hand sees value as a creation of commercial exploitation. They deny the creativity in nature; while parallel to it they indeed use the creativity, knowledge, and intelligence of the commons. The regime does not recognize creativity but emphasis the protection of capital investment and tends to own the knowledge, products, and processes emerging from it. Thus, systematically alienating the knowledge and resources from the first custodians and patrons leading to the creation of monopoly with the multi-national companies.
Via this trend, biodiversity is turned from a local common into a girdled private property. This enclosure is being universalized by the TRIPs treaty. However, as it is considered by some critics like Dr. Vandana Shiva that
“the CBD along with GATT (TRIPS) are a prescription for a monoculture of knowledge since these instruments are being used to universalize the U.S. Patent regime worldwide, which inevitably lead to an intellectual and cultural impoverishment by displacing other ways of knowing, other objectives for knowledge creation, and other modes of knowledge sharing”.
There are two restrictions that the international agreement poses, one of them is exclusions of knowledge, innovations, and ideas possessed by the “intellectual commons” i.e., the local communities belonging to the diverse biological resources from the category of common rights. The next restriction that IPRs introduce is that an idea or understanding is eligible for recognition only when its use yields profits, a mere value in the minds of its users to meet the social needs does not place them on the paddle for recognition. According to Article 27.1, an IPR sanction requires innovation to be that which is able of industrial application. The result of such criterion is the exclusion of all the other sectors that innovate and produce in the mode other than industry.
Fundamental to the privatization of information and biodiversity is the devaluation of local awareness, the relocation of nearby rights, and all the while, the production of restraining monopoly rights to biodiversity use through the case of novelty. Some tendencies enclose the issue of knowledge, one among them is the paradigm of mechanistic reductionism which is the root cause for the negative ecological and health implications. This western concept of reductionism purports that non-Western systems of knowledge are old and inimical when in reality they are to be adapted as they respect life and not take it as a material commodity. On the flip side, precisely when original systems of knowledge could come into their own, the GATT is utilizing IPRs to fortify the syndication of Western frameworks and is depreciating indigenous frameworks, even while misusing them for setting up IPR monopolies. IPRs lend support in the systematic privatization of biodiversity and the intellectual commons and “Bio-prospecting” is the expression employed to explain this new model of the enclosure.
Bio-prospecting is the exploration of commercially worth biochemical and genetic resources. The simile is plagiarized from the prospecting for oil or gold. Biodiversity is fast becoming the green oil and green gold for the biotechnology and pharmaceutical industries, the metaphor suggests that the value and use of biodiversity lie with the prospector, when it is held by local indigenous communities. The metaphor denies the fact that biodiversity was not buried and unused before it was being prospected. Unlike gold and oil, it did not lie beneath the earth; on the contrary, the local communities knew its value and use long before prospecting.
CONCLUDING REMARKS
TRIPS is encroaching on the Common Property Rights to biodiversity and biodiversity-related knowledge because the entire design of TRIPS is to proffer individuals and corporations the monopoly rights as stated in the 1988 industry paper, “Basic Framework for GATT Provisions on Intellectual Property,” coauthored by IPC, Keidanren, and UNICE:
“Because national intellectual property protection systems differ, intellectual property right owners spend a disproportionate amount of time and resources to acquire and defend rights. These owners also find that the exercise of intellectual property rights is encumbered by laws and regulations limiting market access or the ability to repatriate profits”.
The TRIPS agreement by letting monopolistic charge or control on life-forms has posed severe repercussions for biodiversity preservation and the environment. Article 27 (3) (b) of the agreement states:
Members may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
The developing countries were always in threat when it came to TRIPS, the Indian Minister of Trade and Commerce Shri Murasoli Maran in a forum on “Intellectual Property Policy and Strategy in the 21st Century,” at Geneva in 2000 expressed his fear of how “the industrialized countries are using TRIPS as a tool to prevent developing countries having used reversed engineering and other methods of imitative innovation during their process of industrialization”.
The practical implementation of TRIPS and other IPR related laws is mocked by the torch-bearing North or Western corner of the globe. Surmounted dominions were treated as people less when patents of the 15th and 16th centuries were granted. People were naturalized into “our subjects.” Today, we remain to be the subjects of the Western power markets and the growing trends of protection for profit generation. The regime has shifted the interest of commons to the private right thus, supporting the private right over the empty seeds of life. As understood by Dr. Vandana Shiva TRIPS is hence a tool for the privatization of the learned commons and for de-intellectualization of civic society as the mind has become a corporate monopoly. Surely, our planet deserves a fairer deal.
