Jay Kesan (ed.), Agricultural Biotechnology and Intellectual Property: Seeds of Change, CAB, 2007
This chapter considers the dynamics of trade negotiations in the knowledge economy, and the diffe... more This chapter considers the dynamics of trade negotiations in the knowledge economy, and the differences in cultural and economic interests that make these negotiations so strikingly contentious in relation to biological resources and associated knowledge. Divergent value systems lead to questioning of the legitimacy and equity of derivative or imitative innovation: can innovation become an act of unfair competition; what bright line divides biopiracy from legitimate trade? In the negotiating coinage of ‘knowledge diplomacy’ (Ryan, 1998), innovation is offset against the protection of heritage and traditional values; concerns that imitative innovation may be a form of misappropriation can lead to the withdrawal of knowledge resources from the common heritage or from a contested public domain to become ‘a form of national property’ (Kloppenburg, 1988) or a protected collective commons. Rifkin (2001) ponders the emergence of an ‘economy of granters of access’ – but the conditions of access can be determined by new or established notions of property right, as the contours and boundary of the common heritage and public domain mutate under the pressure of trade-related negotiations. What is at stake are the terms of access to technological knowledge (whether traditional or ‘high tech’), genetic resources (GR), traditional methods and product descriptions, descriptive or evocative language, and cultural expressions – in short, access to knowledge resources, the feedstocks of the knowledge economy.
These questions are explored by contrasting multilateral negotiations over GR with bilateral negotiations on trade in wine. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is symbolic of a general reassessment of national ‘capital,’ but the ‘new’ economy is not necessarily seen as an idealized, technologically advanced economy. Genetic resources and related traditional knowledge (TK) are ‘enclosed’ because of their perceived value, or through fear of others unfairly appropriating their value: increasingly claims of unfair competition and illegitimate trade barriers in agriculture will be intertwined with the debate about access to GR and the fading ideal of ‘common heritage.’ Negotiators addressing trade in knowledge are dealing with the tension between the non-rivalrous quality of knowledge resources, and the instinct to enclose to appropriate its value that was notably articulated by Brand (1987): ‘[I]nformation wants to be free because it has become so cheap to distribute, copy, and recombine - too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away. It leads to endless wrenching debate about price, copyright, 'intellectual property', the moral rightness of casual distribution, because each round of new devices makes the tension worse, not better.’
Uploads
Papers by Antony Taubman
The paper concludes with a consideration of the pivotal character of the notion of ‘equity’ and the policy and regulatory responses to perceived inequities arising from the rapidly evolving technological capacity to extract commercial and other benefits from GR. At the heart of the CBD is that the perception of inequitable returns to the original custodians from the downstream extraction of value from genetic resources would negate any incentive to conserve biodiversity in the first place and to use its components sustainably, a normative logic binding together the triple objectives of the treaty. Two broad aspects of equity are considered: fairness of process (procedural equity), and fairness of outcome (distributive equity). The patenting process may also become an equitable fulcrum, a locus for remedying claimed inequities in access to and use of genetic resource. Ideas of equity range from the relatively technical procedural question of whether a patent should be enforceable if it was obtained by inequitable conduct, to a broader sense that the patent system should be used to police distributive equity in the allocation of benefits derived from genetic resources. The impact of technology on perceived equities, and the extensive flow of GR between societies and jurisdictions, taken together make it highly desirable to establish an international and cross-cultural dispensation that is widely seen and accepted to be equitable.. But diverse value systems and different legal rights and interests intersect, overlap, abut and conflict, rendering complex and elusive any form of perceived fairness and equity in the allocation of the value appropriated through research. Source communities and individuals naturally attach high value to their GR, and this ‘value’ goes well beyond immediate economic exchange value and technological utility; it extends to an expectation that the inherent worth of GR be recognized, as an end in itself and as an element of the cultural identity of a community, and the personality of an individual. The call for equity in the dispensation of genetic resources therefore reaches beyond the specific framework of law and regulation to touch on core human rights and the essence of our genetic and cultural identities.
These questions are explored by contrasting multilateral negotiations over GR with bilateral negotiations on trade in wine. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is symbolic of a general reassessment of national ‘capital,’ but the ‘new’ economy is not necessarily seen as an idealized, technologically advanced economy. Genetic resources and related traditional knowledge (TK) are ‘enclosed’ because of their perceived value, or through fear of others unfairly appropriating their value: increasingly claims of unfair competition and illegitimate trade barriers in agriculture will be intertwined with the debate about access to GR and the fading ideal of ‘common heritage.’ Negotiators addressing trade in knowledge are dealing with the tension between the non-rivalrous quality of knowledge resources, and the instinct to enclose to appropriate its value that was notably articulated by Brand (1987): ‘[I]nformation wants to be free because it has become so cheap to distribute, copy, and recombine - too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away. It leads to endless wrenching debate about price, copyright, 'intellectual property', the moral rightness of casual distribution, because each round of new devices makes the tension worse, not better.’
The paper concludes with a consideration of the pivotal character of the notion of ‘equity’ and the policy and regulatory responses to perceived inequities arising from the rapidly evolving technological capacity to extract commercial and other benefits from GR. At the heart of the CBD is that the perception of inequitable returns to the original custodians from the downstream extraction of value from genetic resources would negate any incentive to conserve biodiversity in the first place and to use its components sustainably, a normative logic binding together the triple objectives of the treaty. Two broad aspects of equity are considered: fairness of process (procedural equity), and fairness of outcome (distributive equity). The patenting process may also become an equitable fulcrum, a locus for remedying claimed inequities in access to and use of genetic resource. Ideas of equity range from the relatively technical procedural question of whether a patent should be enforceable if it was obtained by inequitable conduct, to a broader sense that the patent system should be used to police distributive equity in the allocation of benefits derived from genetic resources. The impact of technology on perceived equities, and the extensive flow of GR between societies and jurisdictions, taken together make it highly desirable to establish an international and cross-cultural dispensation that is widely seen and accepted to be equitable.. But diverse value systems and different legal rights and interests intersect, overlap, abut and conflict, rendering complex and elusive any form of perceived fairness and equity in the allocation of the value appropriated through research. Source communities and individuals naturally attach high value to their GR, and this ‘value’ goes well beyond immediate economic exchange value and technological utility; it extends to an expectation that the inherent worth of GR be recognized, as an end in itself and as an element of the cultural identity of a community, and the personality of an individual. The call for equity in the dispensation of genetic resources therefore reaches beyond the specific framework of law and regulation to touch on core human rights and the essence of our genetic and cultural identities.
These questions are explored by contrasting multilateral negotiations over GR with bilateral negotiations on trade in wine. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is symbolic of a general reassessment of national ‘capital,’ but the ‘new’ economy is not necessarily seen as an idealized, technologically advanced economy. Genetic resources and related traditional knowledge (TK) are ‘enclosed’ because of their perceived value, or through fear of others unfairly appropriating their value: increasingly claims of unfair competition and illegitimate trade barriers in agriculture will be intertwined with the debate about access to GR and the fading ideal of ‘common heritage.’ Negotiators addressing trade in knowledge are dealing with the tension between the non-rivalrous quality of knowledge resources, and the instinct to enclose to appropriate its value that was notably articulated by Brand (1987): ‘[I]nformation wants to be free because it has become so cheap to distribute, copy, and recombine - too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away. It leads to endless wrenching debate about price, copyright, 'intellectual property', the moral rightness of casual distribution, because each round of new devices makes the tension worse, not better.’