Postcard from the reality-based universe: "wish you were all here!" A meditation on the relationship between science, intellectual property law, and the rights of indigenous populations in plant genetic resources.

AuthorSchmidt, Dorothy E.
  1. INTRODUCTION A. The Debate B. Setting the Stage 1. Stakes and Stakeholders 2. The Nature of IP Law C. In Search era Center II. SCIENCE, TECHNOLOGY & EXPERTISE A. What is Science? B. Technology & Patents C. Who is an Expert? III. THE POLITICS OF BIOPIRACY AND THE RIGHTS OF INDIGENOUS POPULATIONS A. Issues and Arguments: Biopiracy, Biocolonialism, and Scientific Imperialism 1. Examples of Harm 2. Arguments Against Biopiracy IV. INTELLECTUAL PROPERTY LAW & BIOLOGICAL "INVENTIONS" A. Boundaries of IP Rights in Biology in the United States 1. US Protections for Plant Breeders 2. Utility Patents on Products of Nature Under U.S. Law B. International IP Law 1. National Variation 2. Indigenous Rights Under The Convention on Biological Diversity 3. The Empire Strikes Back: WTO/TRIPS V. RECONSIDERING IP LAW & INDIGENOUS RIGHTS A. The Rhetoric Problem B. IP Law: Too Hot, Too Cold, or Just Right? C. Creativity and Progress in the Useful Arts VI. CONCLUSION A. A Teachable Moment? B. Embracing a Reality-Based View of the Universe C. The Creative Animal, IP Incentives, and the Fate of the Planet D. Asking the Right Questions I. INTRODUCTION

    What, then, is the waste land? It is the land where the myth is patterned by authority, not emergent from life; where there is no poet 's eye to see, no adventure to be lived where all is set for all and forever: Utopia!

    --Joseph Campbell (1)

    Over the past couple of decades, I have heard many news reports claiming various egregious abuses of patent rights in food crops or medicinal plants by some large corporation. The underlying accusation generally goes like this: Someone with lots of money is claiming exclusive rights in a plant, thereby depriving a population of traditional users of their rights to grow their own crops, or use their own traditional medicines. Having studied patent law, I wanted to understand what was really behind these reports, because in reality, patents cover only new inventions by individual inventors and cannot cover widely-used traditional crops or knowledge. As it turns out, such stories are generally misleading, based on misunderstandings of the law or distortions of fact. Yet they also contain a kernel of real injury and a causal link between the injury and patent law that is not especially tenuous.

    1. The Debate

      The "biopiracy" debate concerns the ways in which corporations in "developed" nations have used intellectual property (IP) law to reap substantial profits based on biological resources from "developing" countries. One side argues for the rights of relatively poor "developing" nations to benefit from their remaining riches in biodiversity--riches that often are rapidly vanishing. On the other side, IP scholars point out that current IP laws simply do not apply to the rights being asserted, not least because the main rationale of IP law is to stimulate new creations. The arguments on either side are rooted in fundamentally different attitudes toward science and technology, a difference central to this Comment. Biopiracy is a broad topic, but I will limit my discussion to patent rights in plant resources as a central issue in the debate, and one that illustrates how science figures into the argument. I will then explore the arguments on either side, consider their assumptions about science, innovation, and creativity, and conclude by arguing for a central role for science in formulating a new relationship between intellectual property and indigenous rights grounded in objective reality rather than hostile rhetoric.

      Since rhetoric--the artful use of language plays such an important role in this area, I should clarify my policy for using certain terms of art. The astute reader will have noticed that I placed the words "developed" and "developing" in quotes above. Tiffs illustrates a feature of the debate that deserves notice. These terms are used by both sides, but they are loaded with assumptions that, if unexamined, contribute to a disconnect in understanding. They are not used differently by the two sides; there is consensus as to which nations belong in which category. But the terms seem to imply two things: first, that all "developing" nations are inevitably on track to become like their "developed" peers, and second, that this is a good thing. The former seems unlikely, and there is fierce debate as to the latter point, yet the fact remains that use of these terms tends to mask a more nuanced, complex reality--even a reality well-known to those using them. On the other hand, "developed" and developing" are useful terms because they are consistently used in the literature, so I will also use them without further quotes. This is true of several terms in the debate. I will not avoid using them, because my purpose is not to challenge such potentially problematic conventions but to point them out.

    2. Setting the Stage

      Since misunderstandings underlie so much of this debate, before diving into specifics, two areas of background information should be clarified. These are, on one hand, the complex relationships of various parties and their interests, and, on the other hand, the fundamentals of IP law. Clarifying these will help to sort through the issues.

      1. Stakes and Stakeholders

        First, a wide range of interests exist on the global stage of the biopiracy story. Aside from the scholarly camps, several diverse groups have stakes in the game. One is the large corporations who hold the controversial patents and who have played a major role in the development of international IP law. At stake for them are the profits they derive from the monopoly rights conferred by patents. Another group is the governments of the relatively wealthy developed nations that are home to these corporations, mostly in the Northern hemisphere. Their most obvious stakes are the contributions of the corporations to their national economies. Third are the governments of the relatively poor countries that possess biological riches, largely in the Southern hemisphere, which are also hoping to realize benefits to their economies through international agreements. Fourth are the indigenous (2) populations which still inhabit much of the biologically rich forest lands which have been the source of much of the controversy, and, for them, the stakes are their survival as cultural entities. Finally, one stakeholder has been largely invisible in the debate thus far. That is the human species as a whole, whose stake at minimum is our collective ability to develop creative solutions to our ills, and at maximum our continuing wealth, health, and global political stability.

      2. The Nature of IP Law

        Most people have only a vague idea about what IP law protects and why. Physical property rights are easily grasped; they are based on consumption of and/or exclusion from places and objects which are the property of an individual, organization, or government. But ideas and information are neither consumable nor excludable. My singing of "Happy Birthday" does not reduce your ability to sing "Happy Birthday" whenever you choose, nor will it impede your great-grandchildren from singing it in a hundred years. IP law in general "fences off" rights to such intangibles, creating monopolies in what would otherwise naturally fall into the public domain. For example, the holders of the copyrights in "Happy Birthday" aggressively defend their exclusive rights to public performances of the song, which explains why restaurant employees always sing some other song when you come in for a free birthday dessert. (3)

        The principal justification for creating monopoly rights to intangibles is stated succinctly in Article I, Section eight, Clause eight of the U.S. Constitution: "Congress shall have Power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." To understand what the Framers meant to protect requires some translation of "science" and "useful arts," whose meanings have changed over the centuries. By "science" the framers meant a broad conception of knowledge of all sorts, whereas "useful arts" referred to technological arts such as manufacturing and farming. (4) Federal IP law, then, exists to promote collective human knowledge and technology through a mechanism of giving temporary monopolies to creative individuals. The protectable rights are divided into two categories, which have become the basis of federal copyright and patent law. That is, copyrights are intended to promote our collective store of knowledge by giving exclusive rights to "Authors," and patent rights are intended to promote technology by granting exclusive rights to "Inventors." (5)

        Like any constitutional grant of power, the IP clause has enjoyed its share of controversy. Interestingly, although so many provisions of the Constitution were very hotly debated by the founders, there appears to have been almost no debate over this specific grant of federal power. (6) Madison dismissively called it "an instance of inferior moment." (7) This casual attitude makes it hard to nail down precisely what the framers had in mind, but they surely would be surprised by its current legal and economic prominence. They might also be amazed at the specific shape IP rights have taken. For example, patents are granted exclusively to human individuals, but the specific rights they confer are alienable property rights, (8) which means large corporations can accumulate them. Yet, the popular consciousness is dominated by the notion of a solo author or inventor, working in lonely splendor, whose creative genius must be nurtured and rewarded for the betterment of us all. (9) Thus, there is a disconnect between rhetoric and reality.

        Two other forms of law collected under the umbrella term of IP law are trademarks and trade secrets. (10) These are not constitutional grants; they grew out of state common laws. They are more specifically...

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