[afro-nets] Critical Health Perspectives: Intellectual property rules suit the wealthy

["Bridget Lloyd" <bridget@hst.org.za>]

Critical Health Perspectives: Intellectual property rules suit the wealthy
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Critical Health Perspectives. No 2, 2006. (a publication of the 
People's Health Movement-South Africa)

Intellectual property rules suit the wealthy. by Glenn Ashton

Recent media focus on intellectual property rules has led many to 
believe that the entire debate centers around the issues of piracy of 
films, videos and DVDs. There is a constant refrain that a watertight 
regime of intellectual property rules is essential to protect the 
rights of those who devised, developed and produced innovative goods, 
be it art or health cures.

When we go to the movies we are shown powerful industry statements that
portray clearly that theft of movie images is a piratical anathema to 
both our viewing pleasure and a threat to the very structures that 
uphold our system. Piracy, it is implied, is closer to anarchy than it 
is to theft, closer to the gunpowder plot than to the mere abuse of 
technology for personal gain.

A whole set of corollaries are posited by this implication. Is piracy 
or appropriation of intellectual property always bad? Do the same rules 
apply across the board to such piracy? Is protection of intellectual 
property a level playing field? Are stringent intellectual property 
rules essential to nurture growth, welfare and the general public 
interest? And how do intellectual property rules affect us 
individually, collectively, nationally, regionally and continentally? 
Most importantly, perhaps we must consider whether intellectual 
property rights were ever intended to be or were devised to be tools to 
provide almost limitless monopoly rights to the originators of any 
claims.

None of these are easy questions to answer but they are essential 
questions to ask in order to inform ourselves how we are affected by 
this debate as well as how it plays out on national and international 
stages.

Is there any moral high ground?

Anyone who has invented, written or produced anything unique is 
familiar with the frustrations of attempting to protect their idea, 
concept or item from appropriation by others who wish to gain, either 
through the accumulation of academic kudos, through usurping 
potentially profitable concepts or simply through appropriating 
concepts by legal and financial subterfuge.

Humans are altruistic; this is known through observation and has been
confirmed by scientific analysis. Recently the Max Planck Institute for
Evolutionary Anthropology found altruism exhibited by both sub 18-
month-old humans and chimpanzees. Most of us, in devising ideas and 
concepts want to see them shared for the good of all. It can be 
strongly argued that the altruistic incentive, if I may call it that, 
is a stronger driver for progress than the right to harness 
intellectual property by creating legal frameworks to protect such 
concepts.

However, as soon as our world-view shifts from a humanistic to an 
economic perspective, altruism, morals and ethics are sidelined by the 
profit motive. A legal regime to own and protect intellectual property 
is an essential part of our inherited market economy upon which our 
supposed security depends.

The accumulation of capital - as in the practices of capitalism or
neo-liberalism - coupled to the need to protect and thus enclose ideas 
and concepts that have monetary value, or even those which have 
potential monetary value, has been the driving force behind the 
creation of an increasingly rigid system of intellectual property 
protection.

Global Rights Hegemony

Patents and intellectual property have long been protected by United 
Nations supported treaties such as those which gave rise to the World 
Intellectual Property Organisation (WIPO). International harmonisation 
of these rules remains elusive despite increasing attention in the past 
two decades, spurred on by two major evolutions in the euphemistically 
titled "free market" which in reality has marked the evolution of 
corporatism as a modern economic driver.

The first of these evolutions was that of a united world trade body. 
This has taken shape as the World Trade Organisation that arose out of 
a lengthy series of conferences lasting decades, called GATT or the 
Global Agreements on Tariffs and Trade, created by the victors of World 
War Two, in concert with the World Bank and International Monetary 
Fund. These together create three pillars of what is effectively the 
Bretton Woods triumvirate, enhancing the power of the Organisation of 
Economic Co-Operation and Development, comprised of the so-called 
developed nations, also known as the Global North.

Under GATT and the WTO, the latter created in 1995, the rules 
protecting and harmonising intellectual property have been enhanced to 
principally benefit corporate and neo-colonial interests. The primary 
harmonisation instrument is the WTO Trade Related Intellectual Property 
regime, known as TRIPS. TRIPS is extremely controversial in its failure 
to recognise traditional and communal knowledge systems and rights 
while at the same time insisting on strong protection, enforcement and 
regulation of corporate aligned intellectual property rules.

WIPO has sought to broaden the debate after pressure was applied from
several member countries, mainly from the global South and now aligned
around the so-called megabiodiverse nations, which include Brazil, 
India, China and South Africa. They forced the initiation of a round of 
discussion around the validity and applicability of intellectual 
property rights for traditional and communal knowledge systems.

This flood of acronymic instruments supposed to regulate intellectual
property does not stop here. They extend to, and interrelate with, 
other agreements such as the United Nations Convention on Biological 
Diversity and UPOV, the International Union for the Protection of New 
Varieties of Plants. Each component is relevant to a complex 
international interrelationship of agreements that apply to the 
protection of intellectual property, be it related to patents or 
traditional knowledge systems.

Within all this detail lies the Devil and for the developing world the 
Devil is the threat of the intensification of wealth in the developed 
world while the Global South remains exploited and poor.

Patented humans

The second evolution in human progress that has influenced the entire
intellectual property debate is the genetic revolution. Certainly a
revolution is somewhat more extreme than an evolution but this hints at 
the importance of what has occurred as part of the genetic revolution,
particularly within the health industry. Since the secrets of the 
double helix began to be revealed in 1953, humans have developed the 
ability and means to control the very processes of life through 
technical advances and through applying intellectual property rights to 
living organisms.

The first patent on a living organism was granted to a genetically 
altered bacteria by the US Supreme Court in 1980 launched a new 
speculative gene rush, with over 1, 300 patents granted on full-length 
human genes and many thousands more on other living organisms, from 
marine life to plants and enzymes. Better known examples such as 
genetically modified food crops have been widely discussed but the 
implications of this gene rush on health, gender and economic status 
remains poorly understood by most people.

For instance Myriad Genetics was granted a broad patent on the gene 
BRCA-2 gene that has been linked to a predisposition to breast cancer. 
This controversial patent was overturned by the European Patent Office 
but was later upheld after its wording was altered. This patent grants 
a virtual monopoly to Myriad Genetics for testing for this 
predisposition to breast cancer. Previously tests could be done by 
public service medical facilities at a cost of around US$100. Now the 
price has in some cases risen to more than five times that amount, not 
only placing already vulnerable women at further risk - particularly in 
nations where this procedure is not covered by health insurance or 
social support services - but also placing a completely unnecessary 
burden on public and private health systems. This clearly runs counter 
to the public interest.

And this is just the tip of the iceberg. Genetic testing and possibly
genetic therapies will become a speculative branch of investigation, 
driven, as is the entire pharmaceutical industry toward profit driven 
solutions to health care for Northern markets. Less profitable markets 
and far more serious medical problems such as malaria and sleeping 
sickness remain marginalised.

It is notable that Big Pharma has moved sharply toward adoption of 
genetic technologies in their search for profit. Genetic therapies are 
terribly attractive to corporations as they can theoretically be 
tailored towards the individual. This ignores the fact that the entire 
scientific foundation of our present understanding of genetic 
engineering and its ramifications is poorly founded. This is brought 
into focus by the recent nightmarish experience by six drugs test 
volunteers in the UK who were given a genetically engineered medicine, 
with the most horrific results ? four almost died and two remain in 
serious condition as of this writing. All we hear from the 
manufacturers is that this should not have happened. Too right.

But whether this line of research pays off or not, the important point 
is that the benefits will mainly accrue to those that can afford them 
and more importantly, those that are prepared to pay. Perhaps it is not 
just the intellectual property system we should be questioning but our 
entire system, but I have alluded to that already! 

Rights now and forever

Patents grant monopoly rights for a limited time, theoretically in 
order to repay the Research & Development costs. Yet monopolies on 
genetic data are largely speculative and can through small alterations, 
be reclaimed when the monopoly term approaches closure. This can tend 
to an endless monopoly on various genetic data that may be essential to 
global biological functions.

In South Africa we had a lengthy - but not necessarily profound ? 
debate around the role of Big Pharma in testing and promoting anti-
retrovirals and related HIV and AIDS medicines. International 
intellectual property regimes do grant governments the right to apply 
for a waiver of property protection in case of national emergencies, as 
our HIV and AIDS pandemic so clearly is. However nations are reluctant 
to do so in order to placate investor sentiment.

India and Brazil have both insisted on compulsory licensing - as this 
waiver is termed - yet South Africa, after all of its earlier legal 
bluster in taking Big Pharma to court in a move supported by a morally 
outraged world, has really failed to follow up on forcing the hand on 
matters of intellectual property as they apply to genetics, 
pharmaceuticals or even traditional knowledge systems. Yet South Africa 
has indeed sided with the developing world position, the so called G21, 
in calling for more transparency and fairness in positions taken by the 
WTO Doha round while remaining cautious to not be seen rocking the 
economic stability boat.

Rights in the service of society

Below the radar of international monoliths like the WTO and the so-
called multilateral agenda, lies a series of bilateral agreements 
between developed nations and blocs that present different threats. 
Included amongst these are EU-SA bilaterals, the US driven African 
Growth and Opportunities Act, as well as numerous other treaties 
between single or multiple parties. These treaties often insert clauses 
relating to intellectual property protection that weaken positions 
taken at multilateral fora, often without due reference to national 
democratic structures or public input.

The matter of intellectual property rights and how they relate to life 
and knowledge, be it indigenous or corporate, is one that must be 
engaged with by civil society at all levels. At stake is the last 
frontier of ownership:
The ownership of living organisms and life and metabolic processes. 
Once this frontier is crossed, and when corporate interest trumps 
personal or communal rights, not only health care but also our entire 
existence will become a far more tenuous and risky proposition than has 
ever previously been the case. We cannot permit the usurpation of life 
and knowledge through arcane legal structures. This is an issue that 
demands urgent attention from the widest possible cross-section of 
society, from traditional leaders and healers to medical experts, from 
academia to the man in the street. It is an issue that touches us all 
and one we ignore at our collective peril.

**

Glenn Ashton is a widely published scientific and environmental writer. 
He co-edited the recently released book, "A Patented World? 
Privatisation of Life and Knowledge," a series of essays by global 
experts on issues related to intellectual property and the new 
enclosure movement, and how this stands to affect society as a whole. 
It is published by Jacana Press.

[Critical Health Perspectives is a publication of the Peoples Health
Movement - South Africa (PHM-SA). However, the views expressed here do 
not necessarily reflect the view of all those who have identified with 
PHM-SA. For further information see: http:///www.phmovement.org]

--
Bridget Lloyd 
mailto:bridget@hst.org.za