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Intellectual Property, Traditional Resources Rights, and Natural Law: a Clash of Cultures

Intellectual Property, Traditional Resources Rights, and Natural Law: a Clash of Cultures

IRIE International Review of Ethics Vol.7 (09/2007)

John N. Gathegi , Traditional Resources , and Natural : A Clash of Cultures

Abstract:

Western nations, through international and bodies such as the World Organization, the World Organization, and economic and political pressures on many governments, are to a large degree succeeding in strengthening protection of intellectual property rights as they are understood mainly within the western context. Framing the debate within Locke’s theory of , the paper discusses the extent to which this strengthening of intellectual property rights is appropriate for developing countries, especially within the African context.

Agenda

Introduction ...... 2

Natural Law and the Lockean Genesis of Western IP Law ...... 2

IP Law within the US context ...... 2

IP Law Projected to the African Context...... 3

Traditional Resources Rights and Western IP Law...... 4

Enmeshing public policy within ...... 4

Back to Locke: dealing with the “no-harm” principle...... 5

The ethics of strengthening IP Law in the African Context ...... 6

Conclusion ...... 7

Author:

John N. Gathegi: • Director, School of and , University of South Florida, Tampa, FL 33620- 7800 • +1 813 974 3520, [email protected]

© by IRIE – all rights reserved www.i-r-i-e.net 1 ISSN 1614-1687 IRIE International Review of Vol.7 (09/2007)

also taken my labor, since I have attached my Introduction labor to the objects in question. This harms me, and you should not harm me. You therefore The of the United States in intellectual have a duty to leave these objects alone. property (IP) demonstrates considerable effort in Therefore I have property in the object s.” detaching IP from natural law and the notion of labor, especially in the /expression dichotomy, Locke thus viewed labor as the foundation for which basically expresses the legal doctrine that property. One has the same duties that others owe are not protected but that the expression of to him. If one has labored to acquire property those ideas is, and that the “” is therefore, one would be obliged to respect others’ not translated to IP. However, recent trends in rights to their property [Gordon, 1541]. But these Europe and even the US itself demonstrate a return rights come with a modifier: persons have a duty to Lockean natural law theory of property as labor not cause harm to others, absent extreme need attached to resources. [Gordon, 1542]. There is also the moral claim: in times of extreme need and provided it does not We will address the conflict arising out of the threaten one’s own survival, one “has a duty to let laborer’s claims (whether individuals or multinational others share in her resources (other than her body) companies) and the fundamental entitlements of the [Gordon, 1543]. public, both indigenous and as mainstream economic players, within the context of Locke’s “no- The genesis of the western concept of IP has its harm principle.” origin in this Lockean view of labor-based property. Although not tangible, the resulting product was a We will also explore the nature and scope of result of one’s intellectual labors. Because of its traditional resources rights and the extent to which special characteristics, however, it was difficult for they are affected by notions of western IP, and how the creator to retain of the IP once he natural law, from both a Universalist and an African had shared it with society, which had an interest in perspective would help untangle the mess. We will the creation. To ensure that the “creator” would especially address the question of “individual” versus keep creating, therefore, society made a pact that of resources, and how IP plays would give the creator certain privileges in exchange into that debate, examining how the Locke proviso for the creation, thus hopefully providing an of “enough and as good” plays in the theater of the incentive for continued creation. extraction and propertization of indigenous knowledge and resources from developing countries The view of the western IP system, which covers by multinational countries, especially by the such disparate areas as , , pharmaceutical industry. In effect, we will discuss , trade secrets and , is the question whether there is a net harm to other therefore bifurcated into two schools: one that persons in the acquisition of IP through labor, and views IP as an element of public policymaking and whether this acquisition is “legitimate” in more than one that views it as a system of economic rights. the legalistic sense, as, for example, from an ethics [WIPO, 2]. According to the World Intellectual perspective. Property Organization (WIPO) IP should be seen as not a monolithic entity, but rather as a “complex composite network of international treaties and national , together with the and social Natural Law and the Lockean practices that have developed around each distinct Genesis of Western IP Law area of IP” [WIPO, 3]

In his Two Treatises of Government, essentially viewed natural resources as available for IP Law within the US context all to partake, and that what one was able to retrieve from its natural state by one’s labor IP is territorial, and generally IP is belonged to the laborer. Gordon [1544-45] effective only within the legislating country’s summarizes the logic: borders. The IP system in the United States traces its origin to at least as far back as the US “Labor is mine and when I appropriate objects , which in its Article I, Section 8, gives from the common I join my labor to them. If Congress the power to encourage and you take the objects I have gathered you have by providing limited incentives to authors

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and inventors. It is thus clear that the US Congress the and the World Intellectual was trying to create that elusive balance between Property Organization, Article 1] incentive to create and the public’s right to access the creations. because though still steeped in the western concept of IP private rights, nevertheless seemed favorable Recent developments in US IP law, such as the to these countries. extension of the term of protection and the enlarging of the scope of patentability, have The IP landscape was considerably altered by the brought into focus the: negotiations coming out of the of the General Agreement on Tariffs and Trade “basic question at the heart of Lockean natural (GATT), which created the World Trade Organization law: what happens when a conflict arises and resulted in the Agreement on Trade-Related between fundamental entitlements of the public, Aspects of Intellectual Property Rights (TRIPS). and the moral claims that a creative laborer TRIPS was the result of a successful effort by: possesses by virtue of having created an intellectual product?” [Gordon, 1544]. “a coalition of private, American high- firms in linking intellectual property This has been complicated further by the fact that protection to trade and to the GATT/WTO individual creators have been supplanted by framework. This coalition, known as the corporate interests (e.g., the individual author Intellectual Property Committee (IPC), was versus Walt Disney Corporation), to the extent that formed in the early 1990s with two major aims. it is no longer clear for whose benefit the current IP The first was to make IPR protection a central system is. In the words of WIPO, there seems to be part of United States foreign trade policy. The “a separation between genuine creativity and the second was to use this new prominence of IPR business models that have developed to produce, protection in the domestic foreign trade policy publish and distribute creative products” [WIPO, 7]. context to improve international IPR protection, Notwithstanding these concerns, the United States, primarily through new internationally-binding in concert with much of the western world has in minimum standards that would be adopted in the lately been engaged in aggressive marketing of the course of the Uruguay Round and enforced strong IP protections regimes around the world, by the WTO” [Gathii, 753] shoring up the IP expansion that has already occurred over the years in many countries. This agreement at once moved IP issues into world trade negotiations, and seemed to supplant much of WIPO’s authority in this area. TRIPS essentially IP Law Projected to the African obliged countries to have strong protection schemes, and specifically provided for the protection Context of plant variety rights, with a proviso (Article 27.3(b) that allows countries to elect patent protection or For the majority of African countries, the IP systems develop sui generis legislation for such protection. are generally a legacy from the colonial era, and For the majority of the African countries (Kenya and used as legislative bases the laws of the former South Africa are examples of a few exceptions), colonizing powers. With independence, these plant variety protection was a deviation from the countries incorporated the existing IP legislation into then prevailing paradigm of widespread knowledge post-colonial legislation, initially with few changes, sharing [Cullet, 122]. The situation was exacerbated but eventually with significant revisions. by the time pressure African countries were put in by TRIPS implementation deadlines. As well as being members of the African Union, most African countries are also members of the The requirement for plant variety protection should United Nations. As such, they were in accord with not be confused with the protection of biological the 1974 Agreement between the United Nations diversity. A 1992 instrument, the Convention on and WIPO that recognized WIPO’s role as the: Biological Diversity (CBD) was already of concern with the depletion of biological “promotion of creative intellectual activity and diversity as a result of human activity, taking the facilitation of the transfer of technology the view that the conservation of biological related to intellectual property to the developing diversity is a common concern of humankind countries in order to accelerate economic, social but that States have sovereign rights over their and cultural development” [Agreement Between own biological resources [UN CBD, Preamble],

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and that there should be “fair and equitable using the property [Gordon, 1550]. Two problems sharing of the benefits arising out of the emerge in the of the western utilization of genetic resources, including by pharmaceutical industry (and other industries) to appropriate access to genetic resources and by appropriate the : the first is appropriate transfer of relevant ” that the indigenous notion of property is different [CDB, Article 1]. from the western notion of property; for the former property, especially in traditional resources, is Concern with biodiversity is of special significance collective while for the latter, property rights are here within the context of IP rights, as private. The other problem is collollary and comes pharmaceuticals from developed countries have from the convenient appeal by the pharmaceutical been accused of engaged in bio-, -essentially industry to Lockean philosophy that since there are removing large amounts of unique plant material no private rights in the traditional knowledge, then from developing countries for use in drug research. this knowledge must be treated as a , and In this regard, it is significant that the forests in the the pharmaceutical company having mixed its developing countries hold the vast majority of the research labor into the resources identified by this world’s biodiversity [AgBioWorld], most of it in Africa knowledge, is now entitled to the laborer’s reward of [UN Population Fund]. property in the product. This of course runs smack against the notion of national sovereignty. Traditional Resources Rights and Western IP Law Enmeshing public policy within international trade Indigenous peoples, including those in Africa, have over the years developed and built detailed As we have noted above, one of the major results of information and knowledge bases on various aspects the TRIPS Agreement was to introduce IP into the of their cultures and their natural environment, ambit of world trade negotiations. TRIPS itself was including detailed knowledge of plant and animal predated by the International Convention for the species, soils, seasons and weather patterns. This Protection of New Varieties of Plants (UPOV) and knowledge is a result of an accumulation of provided for rights in plant experimentation and experiences over a long period varieties. These rights were not patents, but under of time, to determine, for instance, that a certain the 1991 UPOV version plant breeders have rights plant has curative or preventive over analogous to weakened patents, with only a certain diseases. As Bastida-Muñoz and Patrick nebulous distinction between the two concepts [281] describes it: “The universe of knowledge held [Cullet, 100]. by indigenous peoples is a result of a diachronic, intergenerational, communal and holistic collection Given that the TRIPS Agreement provides for the of ‘in-corporated’ information about their local protection of plant variety protection, and given that environment.” Traditional resources rights therefore Article 27.3(b) of the agreement allows members refer to systems for the conservation, protection, who do not want to give this protection by way of and compensation to communities holding this patents to formulate substitute property rights knowledge. systems through sui generis laws to effect their obligations under the agreement, developing That indigenous knowledge is valuable can be countries have recently been under tremendous illustrated by the fact that “indigenous knowledge of pressure to adopt UPOV as a compliance tool for medicinal plants and food decreases research and such a protection scheme [Cullet, 100]. production costs by 40% or by $200 million a year” [Bastida-Muñoz and Patrick, 260]. This value TRIPS is in marked contrast to the Organization of attracts western economic sectors, such as the African Unity’s (now the African Union) Model Law pharmaceutical industry. But a clash of cultures is dealing with access to biological resources and immediately apparent, when the industry seeks to rejecting patents of life or exclusive of appropriate this knowledge as property. life forms [OAU Model Law]. The Model Law recognizes: In the Anglo-American system, property is characterized by the ability of the owner to use the ‘the rights of local communities over their property, to alienate (or transfer) the property to biological resources, knowledge and someone else, and a right to exclude others from technologies that represent the very nature of

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their livelihood systems and that have evolved development. In effect, it argues that the AIDS over generations of human history, are of a col- crisis in Africa is intractable because providing lective nature and, therefore, are a priori rights AIDS drugs, which still enjoy patent protection which take precedence over rights based on in Western markets, conflicts with its private interests” [Preamble]. commercial objectives.”

And more specifically refers to these rights as This attitude has even been projected to actions “inalienable” [Part I, Objectives]. occurring pre-TRIPS. Brazil, for example, has long had a policy of free access to AIDS drugs, that has The problem is that unlike other resulted in a tremendous reduction in deaths due to treaties, TRIPS is non-derogable, such that without opportunistic infections, by as much as 60-80% the of all parties, countries cannot make between 1996 and 1999 [Gathii, 734-5]. The reservations. Furthermore, under the Generalized country has done this by invested heavily in generic System of Preferences, preferential access to the drug production projects. The United States initial United States market for developing country imports response was to ask the WTO to investigate the was made subject to signing on to TRIPS [Gathii, of Brazil’s compulsory licensing legislation. 762-63]. This makes efforts by African countries to Subsequently, however, in another similar dispute, buck the private property system, such as in the former US President Clinton would sign an OAU Model Law, effectively toothless. Order for Sub-Saharan African countries, as well as an understanding with South Africa on the Gathii [762] puts it succinctly: relationship between public health and pharmaceuticals, following that country’s efforts at “The sovereignty that countries had in the pre- fighting AIDS [Myers, A8]. TRIPS era to determine how far to extend IPR protection was lost. (For example, in the pre- Relying on the concept of Boyle’s “romantic author”, TRIPS era, a variety of developing countries had TRIPS insistence on strong IP protection tools such decided not to extend patent protection to as patents devalues sources such as the traditional pharmaceuticals. The reason was to ensure the knowledge and plant specimens that go into availability of medicines to their citizens at developing drugs [Boyle], leading to no affordable prices.) In other words, some compensation, as only the scientific research is countries had chosen not to extend monopoly deemed worthy of compensation [Gathii, 758]; a protection to certain products in the public decidedly western orientation of IP. It does, interest. The post-TRIPS international however, to balance public policy concerns environment narrowed the sovereignty of against private interests, as in Article 8’s recognition countries bound by TRIPS to determine of members’ rights to adopt measures for public appropriate levels of IPR protection.” health and for prevention of IP property rights abuse [TRIPS, Article 8]. This narrowing of sovereignty is especially evidenced by the fact that the United States singled out for unilateral punitive sanction countries that Back to Locke: dealing with the were opposed to the TRIPS agreement, prompting many to sign on both under this threat and the “no-harm” principle promise of access to the US market [Gathii, 755-56]. We have seen that the western notion of IP rights is TRIPS and its strong IP protection regime brings antithetical to the African philosophy of common into sharp focus such ethical issues as the balance ownership and sharing, especially in the area of between the needs of low-income pharmaceutical traditional resources and knowledge, and certainly in consumers facing a life-threatening disease like agriculture which even in modern African AIDS, and the pharmaceutical producers’ interests. governments was kept out the patent zone based on Gathii [735] and Gellman [A1] report, for example, elements of public morality [Cullet, 109; Gathii, that: 761]. Western IP instead turns to Locke for inspiration, even though, especially in the case of “the pharmaceutical industry has quietly argued the US, some aspects of IP law such as copyright that selling AIDS drugs at discounts in sub- have made an express effort in divorcing IP Saharan Africa portends doom with respect to protection from results of labor. The case of Feist v. the ability to finance further research and Rural Telephone in the US drew the line between

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“” and mere labor, with the Supreme sophistication, it will have to contend with issued ruling that the white pages of a telephone directory patents. As Gordon [1563-64] notes, “creators could not be protected by copyright, as it did not should have property in their original works, only have the requisite originality [Feist]. Since then, provided that such grant of property does no harm however, legislation protecting databases in Europe to other persons' equal abilities to create or to draw [EU Directive] and legislation outlawing the upon the preexisting cultural matrix and scientific circumvention of electronic fences in information heritage.” content [DMCA] have brought IP full circle back to Locke. What is left after extraction may be enough, but not as good, a result based on a reliance argument. However, even while appealing to Lockean notions Once a new drug has been developed, those who in IP protection, there are significant departures used the plant for medicinal purposes cannot be from some of the central tenets of the natural law confined to their original resource: they are equally philosophy. Laying aside for the moment the entitled to the new , because: argument that natural resources found in a country belong to that country and cannot be considered by “Intellectual products, once they are made other countries as their “commons” [CBD, Article public in an interdependent world, change that 15], and assuming that it is possible, for example, world. To deal with those changes, users may for pharmaceutical companies to claim property have need of a freedom inconsistent with first interests in the parts of the commons to which they creators' property rights. If they are forbidden have attached their “labor,” there is still the to use the creation that was the agent of the conundrum that one’s liberties in the use of one’s change, all they will have to work from will be property has limitations under natural law. One such the now devalued common” [Gordon, 1570]. limitation is the duty to refrain from harm. Also, “even if a laborer is ordinarily at liberty to keep the Developed countries’ patenting of drugs derived benefits she can draw from her product, the natural from traditional knowledge and plant sources law imposes on her an obligation to share her plenty imposes a duty on community members in their use with those in extreme need” [Gordon 1550-51]. of the common; especially should these Such extreme needs would presumably include the communities want to develop the drug themselves. prevention of deaths from AIDS, and not sharing This then begs the question of the moral validity of would harm those in need. bestowing exclusive property rights in the laborer (the pharmaceutical company) at the expense of devaluing the common. As Gordon argues, where The ethics of strengthening IP Law there is a conflict between the bequeathing property rights to the laborer and causing harm to the in the African Context commons, Locke dictates that the common should prevail [Gordon, 1560-61]. For Locke, the laborer was justified in property rights from the results of his labor in appropriating The global pharmaceutical industry is estimated to from the commons of nature, provided that after have made billions of dollars in annual revenues such appropriation, there was "enough, and as good partly due “the illegal seizure of traditionally used left in common for others" [Gordon 1562]. When a medicinal plants and the uncompensated taking of pharmaceutical company leverages traditional the associated knowledge regarding their knowledge and traditional resources to patent a preparation for specific ailments’ in what has come drug, however, it is unclear that there is enough and to be known as ‘the green gold’ of multinational as good left in common for others. The resource business [Bastida-Muñoz, 260]. country, for example, cannot produce the same drug from the same resources. But IP rights resulting from this green gold come at a cost, including “1) destruction of A cynic might say that as long as the extraction biodiversity, communal rights, , and does not deplete the particular plant resource, there traditional ways of life; 2) usurpation of indigenous is still enough and as good left for the community traditional knowledge; 3) a new technological members and they can continue utilizing the plant logic; 4) denial of access to for medicinal purposes as they always have. A indigenous medical knowledge” [Bastida-Muñoz, glaring problem, however, is that should the 273-74]. This cost appears high enough to community find itself with later scientific warrant a reexamination of the underlying ethics.

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Conclusion Gathii, James Thuo: Construing Intellectual Property Rights and Competition Policy Consistently with The Convention on Biological Diversity was Facilitating Access to Affordable AIDS Drugs to formulated to facilitate the fair and equitable sharing Low-End Consumers, 53 Florida Law Review 727 of research results arising out of the utilization of (2001) genetic resources. This sharing is supposed to be on Gellman, Barton: An Unequal Calculus of Life ‘mutually agreed terms’ [CBD, Article 15]. and Death: As Millions Perished in Pandemic, Developing countries, however, and African Firms Debated Access to Drugs, Wash. Post, countries in particular, are hardly in a position to Dec. 27, 2000, at A1. negotiate on such sharing, and the mutual Gordon, Wendy J. A: A Property Right in Self- agreement is for the most part an illusion, especially Expression: Equality and Individualism in the since the concept of informed consent is equally Natural Law of Intellectual Property, 102 Yale empty. With respect to obligations imposed by L.J. 1533 (1993) TRIPS, for example, these countries have neither Myers, Steven Lee: South Africa and U.S. End the fiscal nor the institutional assets to take any Dispute Over Drugs, N.Y. Times, Sept. 18, advantage of TRIPS there may be [Gathii, 765], 1999, at A8 especially its Article 27.3(b) sui generis provision. Organization of African Unity: OAU Model Legislation for the Protection of the Rights of Local It is interesting, however, to see flashes of Communities, Farmers and Breeders, and for conscience from some of the pharmaceutical the of Access to Biological Resources companies, with some giving free or reduced-cost (OAU Model Law). Algeria, 2000 drugs to some developing countries, or allowing the production of generics while the patent is still in United Nations Conference on Environment and force. This social conscience, however, invariably Development: Convention on Biological runs against the companies’ fiscal obligations to Diversity, 31 I.L.M. 818 (1992) their investors; the question starkly becoming: what UN Population Fund. Retrieved 09May07 is the optimal point between maximum profit and http://www.unfpa.org/swp/2001/english/ch02.h unnecessary deaths? tml at 4:36 PM EDT World Intellectual Property Organization. Report on Strengthening IP protection in Africa will, while the Online Forum on Intellectual Property in the arguably benefiting some sectors in the modern . WIPO/CRRS/INF/1 2005. economy, nevertheless result in net harm for the p.2 majority of the communities in those countries, and it is imperative that this realization be factored into any IP regimes adjusting discussions, including TRIPS-like negotiations.

References AgBioWorld. Retrieved 12May07 http://www.agbioworld.org/biotech- info/topics/dev-world/challenge.html 5:02 EDT Bastida-Muñoz, Mindahi Crescencio and Geraldine A. Patrick: Traditional Knowledge and Intellectual Property Rights: Beyond TRIPS Agreements and Intellectual Property Chapters of FTAs, 14 Mich. St. J. Int'l L. 259 (2006) Boyle, James: "A Theory of Law and Information: Copyright, Spleens, , and Insider Trading." 80 Cal. L. Rev. 1413 (1992) Cullet, Philippe: Plant Variety Protection in Africa: Towards Compliance with the Trips Agreement, 45 Journal of African Law 197 (2001) Feist Publications v. Rural Telephone , 499 U.S. 340 (1991)

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