[This post is by guest-writer Line Løvåsen. Please first read the previous posts in this series: part 1, part 2, part 3].
This post is by guest-writer Line Løvåsen.
Impacts of the IPR regime
I begin with mentioning some socio-economic impacts of the Intellectual Property Rights regime (IPR’s). Access to basic needs such as medicines and food have for many indigenous peoples become difficult. People are forced to buy food from the international market, but have difficulties to pay for it. Because of liberalization, exports aren’t profitable and imports costs more. Economic opportunities for everyday survival thus are stolen. What have been the means of production for them, have become patented commodities.
Posey has in his text summarized the problems with IPR’s:
- They undermine free exchange of commonly held resources like indigenous knowledge (IK), cultural and genetic materials.
- They only benefit innovative persons and global corporations, not collective entities.
- IK becomes unprotectable because it is considered to be in the public domain.
- They do not accommodate non-Western systems of ownership.
- They serve to stimulate commercialization and distribution, the opposite of indigenous concerns.
- They recognize only market economic values.
- They are subject to manipulation by economic interests that exercise political power.
- They are expensive and time-consuming.
- The intellectual law is constructed around the notion of the innovator as an individual; people of collective communities who do not fit this model have no protection.
The system of IPR’s covers a double theft; it allows theft of knowledge, and allows patents on stolen knowledge. And, global corporations not only commit theft but also destroy agricultural systems with their massive industry. This situation has led to huge debts among poor people, especially in countries like India where 75% of the people make their livelihood on agriculture. Industrial agriculture leads to impoverishment, but is hidden behind a myth that it is “necessary to reduce hunger” and also that it saves resources. Farmers are robbed from the freedom to choose what to grow, and consumers from the freedom to choose what to eat.
The destruction of agricultural systems brings us to the environmental impacts of IPR’s. The environmental impacts of genetic engineering are many. The hybridization of seeds (in addition to forcing farmers back to seed breeders every year and stealing nature’s regenerative powers) requires more pesticides. Agrichemicals are necessary on sterile seeds as they are resistant to weeds, and so they use herbicides which kill all plants (agrichemicals like these are also mirrored in Western medicines, like antibiotics). Also, parasites used in moving genes are polluting. In addition to chemical pollution, genetically engineered organisms (GEO’s) are both resistant to population regulation factors, pass transgenes to related species and change the nature of the predator-prey relationship, and results in so-called biological pollution.
Some development impacts. In a comment to the Patent Agenda of WIPO, Médecins Sans Frontiéres (MFS) said – on the basis of their experience in the field – that the current IPR regime is undermining research and development for drugs and that its heightening of prices is making drugs unaffordable for poor people. Also, many diseases are not being researched, as they mainly affect people who cannot afford their drugs. Protecting intellectual property should not be a goal in itself. Keeping citizens alive is more important than encouraging them to make inventions.
This leads us to ethical impacts. Life has become instrumental rather than intrinsically valued. There are no barriers for how humans or animals are treated. Pigs with human growth hormone have a body weight that is more than its legs can carry. The behavior and health of animals change. Their capacity to heal and repair breaks down, and they get addicted to inputs. Interestingly, what happens in nature happens in society. Globalization is not cross-cultural integration as claimed, but the imposition of one culture on all. When imposing homogenization on social systems, it results in disintegration and violence. This must be enough evidence to show that monocultures do not work out.
I have shown how “natural” power structures threatening people’s lives are dominating the third wave of globalization. Last I want to see if, aside from the morally wrongfulness of the IPR’s, there are any written laws sinking its legality.
How legal is the political?
TRIPS is not the result of democratic negotiations, though democratic values are supposed to be one of the core values of Western culture. Rather it was shaped by the interests of transnational companies (TNC’s) from the US, Japan, and Europe. Indigenous peoples did not have any say in the negotiations which led to the agreement, even though this agreement influences them a lot. Through TRIPS they are forced to accept patents on innovations.
But the article 27:1 of TRIPS mentioned earlier, states that patents shall have access in areas of technique, but not all innovations are technique; they may be written sources, and according to several treaties are therefore exempt from patents. But praxis has developed that innovations can be patented on the grounds of their further technical effects. Indigenous organizations have called for amending TRIPS, but not surprisingly they talk to deaf ears.
Indigenous peoples have a full right to complain also according to several treaties that are worth mentioning. The Convention of Biological Diversity (CBD) from 1992 is, with its 188 ratifications, the broadest supported global legally binding treaty. It promotes sustainable development and the fair and equal sharing of the benefits from the use of genetic resources. Article 8(j) of the CBD states that governments shall respect, preserve, and maintain knowledge, innovations and practices of indigenous and local communities in biodiversity conservation and encourage equal sharing of benefits arising from this. Its implementation, however, is hampered by the patent monopolies and private rights of the TRIPS agreement. The CBD is a bit ironic in that it gives governments the sovereignty over indigenous resources and states are also the ones signing the agreement, not indigenous groups.
The WIPO Declaration is meant to make real those rights found in the Universal Declaration of Human Rights. This is not evident. According to articles 3 and 25, everyone has the right to share in scientific advancement and its benefits and have access to essential medicines, but as shown, strong patent protection on medicines, food and other basic goods compromise human rights commitments. Yet there has been little assessment of the human rights implications of IPR’s. On the basis of their field experience, MSF highlight the importance of addressing the current problems of public health before moving towards a substantive patent law.
Last, Article 27.3 (b) of TRIPS legitimizes private property rights in the form of intellectual property over life and processes entailed in modifying life forms. But these are rights for individuals, corporations and states, not for indigenous peoples and local communities. Discussions on indigenous knowledge should find support in ILO 169 and the Draft Declaration on the Rights of Indigenous Peoples (strengthening Article 27 of the UN International Covenant on Civil and Political Rights), which states that rights to indigenous knowledge, innovations, and practices cannot be discussed in isolation from indigenous people’s rights to their own territories and resources.
Sadly, the ILO 169, the only legally binding treaty to protect indigenous peoples, still has a weak legal status. Law does not necessarily mean justice and absence of discrimination. And indigenous peoples, which are a kind of nation within a nation, have no representation; they are not a category in official records. Governments, which mostly consider themselves to be the voice of all peoples within their territory, usually ignore indigenous peoples (Saugestad).
(read part 1) (read part 2) (read part 3)