SLART Feature: Visions of Global Justice

*** THE INTELLECTUAL PROPERTY GARDEN

A child is seen in a field blowing a dandelion. The flower and seeds are composed of copyright symbols, which can also be seen growing wild in the field. To the child the dandelion represents making a wish. To the adult it is a garden pest which stifles the growth of preferred plants. Every adult knows this when they teach a child to blow dandelion seeds, yet they encourage the child to spread the pest throughout their garden. Is this responsible stewardship?

*** What has intellectual property got to do with justice?

The practical application of justice is law. Law, we know, primarily concerns itself with property and ownership. Crime and punishment is a much simpler domain than that of property, where establishment of rights is by definition far more abstract - less universal. Property exists nowhere in the world, only in contract, agreement, or the award of possession through lawful interpretation of a chain of events. (1)

History, however, provides endless examples of the application of law in ways which may offend our natural sense of justice. One need only look to the distribution of ownership by kingdoms, states, politics and corporations in one's lifetime for many examples.

With ideas now increasingly falling under the umbrella of property law, the abstract idea of ownership becomes increasingly ephemeral. Whilst initially conceived as a protection for the individual, copyright is now increasingly owned by corporation - the modern kingdom. Those who wish to trade with us must agree to be annexed into this kingdom - to practice our conception of justice and ownership over ideas. They become subject to our proprietary rights.

There is some protection in justice as applied by law, but can we be sure natural justice is served. Copyright, patent law, access to technologies, educational materials, information in general; the bread and butter of intellectual property is not distributed evenly. (2)

Just as property law divides the map of our land into rectangles representing right of passage or tresspass, intellectual property segments our intellectual environment into no-go zones based on the provenance of thoughts and ideas. Our children grow and are educated in this environment; our business and nation building, and thus the day to day struggles of our people, are practiced within it.

When corporations in far countries can own; the tools and stories we use to educate our children (3), our own genome and thus our ancestry and makeup (4), the genome of the diseases that kill us and the formula for their cures (5), the living structure of the plants we sow and breeds of the animals we harvest (6), the design of the tools of our industry and anything which we invent ourselves which resembles or replaces them (7); then can we be sure natural justice is being served.

Pavig Lok

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***FOOTNOTES

1) We know that property law deals with abstracts in that it's primary unit of exchange, money, is itself ephemeral. The value of these tokens is simply one of agreed consensus within the market - a consensus which shifts to and fro on a daily basis, and thus is removed from any intrinsic value that the Dollar, Euro or Yen may represent. This has arguably been the case since the abolition of the gold standard. http://en.wikipedia.org/wiki/Gold_standard

2) Access to a system of law does not imply a balanced justice system. Intellectual Property law, such as copyright and patent law, requires a large and highly developed infrastructure to establish provenance. When new players enter an IP regulated market - such as is the case through recent “free trade” agreements, where right to trade is contingent on adoption, adherence and acknowlegement of existing intellectual properties and systems of law - we should expect the new entrant to start at a severe disadvantage. A smaller nation trading with the USA is a fine example. In the United States almost anything patentable has been patented. This includes, for example, a button on a website that says “buy” - something which should seem obvious and un-patentable as a pre-requisite for patent is novelty. It is unreasonable to expect a smaller nation to compete with the established body of patent claims which exists on such a granular level in developed nations. For the significant social costs of implementing a patent system on developing nations see: Samuel Oddi, The International Patent System and Third World Development: Reality or Myth?, 1987 Duke Law Journal 831 (1987).

3) Educational use of existing materials covered by copyright comes under either a licensing or fair use provision in law. As the rights under copyright are extended, fair use provisions http://en.wikipedia.org/wiki/Fair_use come under pressure. Now the mere threat of litigation presents an economic burden on educational institutions, who must now practice citation and study of copyrighted works defensively. These increased costs alone, and the restrictions on use of works for education to avoid them, are changing the practice of education even in affluent nations. In jurisdictions where the development of IP law has outpaced complimentary fair use provisions, this burden is correspondingly increased.

4) Since sequencing of the human genome, various parts of it have been subject to ownership under intellectual property law. Particularly famous cases of this pertain to genetic sequencing of indigenous populations, who may have a body of native law concerning ancestry, and thus their genetic heritage. Unwittingly transferring property rights to the unique sequence of their DNA brings native law and intellectual property law into conflict. Can a corporation own what makes one ones-self without informed consent? How are the benefits of ownership of this property distributed? Distribution of advantage can be worth considerable sums in cases where natural immunity to diseases within a genome confer towards a commercial treatment for disease - a situation where western property law is often poorly structured to remunerate donor groups. For further research on ethical and other concerns the “human genome diversity project” http://en.wikipedia.org/wiki/Human_Genome_Diversity_Project and “the genographic project” http://en.wikipedia.org/wiki/The_Genographic_Project and controversies surrounding them are a good starting point.

5) Contention may arise in the patenting of gene sequences of disease. The first company to genetically sequence the SARS virus now owns it - though our natural sense of ownership would say it is owned perhaps by nature or humanity, if the concept of ownership is even an appropriate. This right of ownership under intellectual property law however, allows the company to contest a right to part ownership or interest in any cure which may be developed. It is not hard to see how such a system could be abused. Biological patents http://en.wikipedia.org/wiki/Biological_patent are nothing new, and neither is controversy regarding their use as a barrier to legitimate research. Compliance with a system of biological patent precludes nations with weaker economies from engaging in research on equal terms by eating up research budgets in order to comply with legal licensing against a stronger unit of currency. With over half a million gene patents filed in the last few years http://en.wikipedia.org/wiki/Gene_patents biological patenting has entered a new era, and controversy will continue as law continues to adapt to this new area of intellectual property.

6) For evidence where IP effects crops one need look no further than the “terminator seeds” controversy. http://en.wikipedia.org/wiki/Terminator_Technology In order to protect the biological intellectual property of it's own nation the US Department of Agriculture developed a genetic method to turn second generation seeds sterile - a so called GURT or Genetic Use Restriction Technology. Of course the outcome should this technology hit the market is that smaller nations, indigenous and rural farmers would become dependent on the agricultural industry for seed on a seasonal basis. This undermines the 12,000 year old practice of saving the best seed from each crop for sowing the following season. Similar issues can be found in biological patent and “usage rights” on animals for breeding purposes. Overlap between patent rights to plant materials and long established law such as plant breeders rights http://en.wikipedia.org/wiki/Plant_breeders%27_rights is another source of contention.

7) The use of patent law to stifle technological development is well documented. Arguments of this sort cite a “negative right” the patent holder gains, allowing them to exclude competitors from exploiting a similar invention they may develop independently. The legal burden of producing prior art in such cases can preclude the competition from proving their case even when they may have developed the invention first. When this is the case and a patent is contested, the competitor may be forced to cease development of the invention, or pay a licensing fee for use of the others IP. http://en.wikipedia.org/wiki/Patent

Post script:

I am not taking a stance against intellectual property in principle. The original intent of I.P. law is quite ethically sound. Yet we can clearly see how, in cases where there is a large disparity in power, the structure of I.P. law can be used unscrupulously. It is not safe then to assume that when power is more equal such problems disapear. More likely unethical and unjust practices persist, just to a lesser degree.

In seeking to maintain a just society we must examine all the implications of our laws, even those protections that on first glance appear unambiguous. Intellectual property law is evolving quickly at this time, and thus requires particular scrutiny.

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