‘Intellectual property is a legal fiction; it is itself an invention, but unlike literary fiction it shapes what people and firms do’
While most discussion about the use of modern biotechnology focuses on the technology and what it may do, that is not the only factor driving its use in the market.
The key to the current corporate-driven use of genetic engineering is the law; specifically, laws or rules on patents, plant variety protection and other forms of so-called ‘intellectual property rights’.
A scientific revolution in biology underpins genetic modification (GM) or genetic engineering (GE), which is the better term as it is classic engineering of a material (DNA) that is not fully understood but which can be manipulated and used to build new structures – not bridges or buildings but plants and animals. It is changes in the law, however – initially in the US in the 1980s and globally since then – that drew agrochemical companies, with their patent-based chemical business background, into the messy, long-winded art and science of plant breeding.
Through the looking-glass
The issues at stake are fundamentally about who will have what power and control over the food system in the future; who will have access to what food – even who will eat. The legal framework, the rules to be followed, and the way business is regulated, are the core battleground. And the answers can be found amid a confusing sea of acronyms and agreements often aimed more at protecting company profits than feeding everyone sustainably. For it is these various world agreements, hammered out in tough negotiating sessions often lasting for years, that have become the legal fictions governing our lives. Ecosystems do what they do irrespective of the rules we make up about them, whereas people and institutions behave in the ways they do because of the rules we make up about them. If we want the world to be run differently we need new rules, and to rethink the meanings of the worlds that govern us.
In Lewis Carroll’s Through the Looking-Glass, the following piece of dialogue appears: ‘“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.” “The questions is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master – that’s all.”’
Much of the struggle in international negotiations is about who will decide which words to use and how they will be defi ned – and upon that may rest the fortunes of major corporate or environmental interests. One of the key battlegrounds has been about what is, or is not, patentable, and just exactly what the words used in intellectual property rules – for example, inventive step, industrial application and even microorganism – mean.
A patent is a privilege granted by a government, allowing the holder to exclude others from making, using, importing and selling an invention. Patents provide the holder with an effective monopoly on a particular product or production process. These privileges are national; they apply only in the countries they are granted and for a limited period (the minimum is now 20 years). To prevent some patents harming the public interest, governments retain the right to override them in certain circumstances (using a ‘compulsory licence’).
The patent system is meant to provide incentives for the research and innovations that society might need. However, there is heated debate about whether the patent system is the most effective way to achieve this, and whether it should be extended to life forms. In fact, many patent-based industries base much of their research on previous public sector innovation, fail to address research needs in areas where there is no market, and even use patents to block new research and competition.
Until the 1980s, the use of patents in plant-breeding was very limited – basically to the US and for certain kinds of plants. Europeans did not like the idea of using patents for plants as they were too restrictive. They prevented others using the materials covered by the patent. The European view was also that it was not possible for a plant to be describe as an ‘invention’, as was required in patent law. Following pressure from the European seed industry, and under the UPOV Convention (the French acronym for the International Union for the Protection of New Varieties of Plants), an alternative system for taking out some form of intellectual property protection over the plants they bred was developed, called Plant-Breeders’ Rights (PBRs). These PBRs were less restrictive than patents and allowed any breeder to use any other breeders’ plants in breeding a new variety – a necessity as breeding is a complex process involving crossing many different plants.
As the rules on PBRs were revised periodically, however, they extended the scope of this protection and made it more difficult for farmers to do what they always had, which was
save, share and breed from their own seed if they chose. In Europe, the US and some other OECD (Organisation for Economic Co-operation and Development) countries, farmers had gradually stopped doing this and only public and private breeders produced new varieties. This trend did not affect most developing countries, where farmer-saved seed and breeding still matters a lot, until the creation of the World Trade Organization (WTO) in 1995. New rules on intellectual property (IP) were included in the overall package of agreements countries had to sign up to on joining the WTO. With more than 150 members and some 30 more queuing up to join, this now makes WTO rules more or less global.
TRIPS with everything
The advent of genetic engineering offered a short cut for agrichemical firms to get into plant-breeding, for instance by introducing traits such as resistance to a herbicide they
have produced (and in some cases which was due to go off-patent, meaning a generic company could make it for a fraction of the costs and profits would greatly decline), or by introducing a pesticide into a variety.
But the problem with plants is that they reproduce themselves, so firms wanted mechanisms to prevent farmers simply buying once and then replanting their own homegrown seed.
There are two ways to get such protection – via the law or technological fixes. Hybrid seeds are an example of a technology-based protection measure: they do not reproduce truly and you need to buy more hybrid seed every year. It is possible to develop higher-yielding openpollinated varieties, but there is not the commercial incentive to do so, as farmers would not have to come back for more. The much-talked-about ‘terminator’ or ‘traitor’ technology, whereby plants are bred so their seeds are sterile or will only exhibit particular traits when triggered by the application of a chemical, are the kind of technological lock-in being developed for GE plants.
The other way to do this is to make it illegal for farmers to reuse seed without permission or payment, and extend IPRs in agriculture globally. This is where the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) comes in. It is one of the core set of agreements that countries have to sign up to when they join the WTO.
TRIPS was promoted by transnational corporations in four major business areas whose business model depends on strong IP rules: software, film, music and pharmaceuticals. Because they function in global markets, these businesses want global IP rules to stop people copying their products. The existing UN organisation dealing with IP – the World Intellectual Property Organization (WIPO) – had been unable to deliver those. Even if new rules were agreed in WIPO, member countries did not have to sign up to them, and most developing countries did not. This is because strong minimum IP rules are not in these countries’ interest– ‘kicking away the ladder’, as Cambridge economist Ha Joon Chang calls it, preventing them from doing what most existing rich countries did, i.e. copy each other to catch up and adopt variable IP rules to suit their own economic interests.
The TRIPS Agreement of the WTO requires all member states to allow the patenting of microorganisms. It gives them the option to opt out of patenting plants and animals (which was opposed by the US in the negotiations), but it does require them all to have some form of Plant Variety Protection rules. It is perhaps the biggest ever piece of global regulatory capture by a limited set of vested corporate business interests – and, in the private view of one negotiator from a European country, the most iniquitous agreement ever pushed on to developing countries, for pushed it was, against those countries’ wishes.
TRIPS had the advantage not only of making IP rules global, but also of putting them into a new kind of international institution (the WTO) that has a binding dispute-settlement mechanism, backed by sanctions. It is why TRIPS, and particularly its impact on access to medicines, has drawn strong resistance from developing countries and many NGOs. This concern almost derailed two WTO ministerial conferences and led to an amendment to TRIPS in an attempt to ensure it does not affect access to medicines.
But people only need medicines when ill; everyone needs food, and as the rules are slow to take effect, in developing countries the impact of TRIPS and the extension of IP into agriculture has hardly begun to be felt.
These rules matter because IP is a key driver in determining who will have what wealth and power in the 21st century. It underpins a business model for the future of agriculture and a corporate-led global food system that facilitates the concentration of economic power in fewer and fewer hands, and has helped drive the merging of many seed businesses, so now just a few firms control ever greater shares of the market. IP is the key legal tool the major corporate players require to be involved in GE. Genetic engineering would not go away without these rules, but how it was being developed, what it was being applied to and the balance of public versus private interests, would be very different.
Today, it may be best to think of the IP rules as facilitating a private system of taxation. Firms controlling key patents, copyright or trademarks can set prices at levels far above costs and use them to segment markets so as to extract as much as possible from each, while preventing lower-priced products in one area leaking out to places where they may be charging many times more for the same thing. It is a system that is now de facto global. This was the conclusion of Australian Professor Peter Drahos, a leading researcher on global business regulation and the patent system, from his research for a new book The Global Governance of Knowledge: Patent Offices and their Clients, due out in 2009.
Today there is almost no country where patents cannot be taken out. This is in contrast to the existence of tax havens, which are fiercely defended by the same interests that do
not want any ‘IP-free havens’.
‘But most governments don’t in fact realise that this is the game’, says Drahos. ‘Intellectual property is one of the drivers of the bigger economic system within which are many, often complex niches. For economists, key drivers of change are institutions and institutional arrangements. Property rights are at the centre of these; they determine who controls resources, who does and does not have access, and therefore how resources are used.
‘For ecologists, what matters is the sustainability of systems, their capacity to maintain a diversity of life. Economists don’t think like this. Instead they use property rights to achieve narrowly defined efficiencies. Economists push systems to dangerous tipping points, to the edge of sustainability from the ecological point of view, as it is about maximisation of resource use. It is this view of efficiency that dominates IP – maximise use of resources. What we need is an ecological view of property rights, less an efficiency view, if we want sustainable systems’.
The new enclosures
The detail of the rules on intellectual property, as developed in TRIPS and WIPO, is complex, but negotiations about them have had spill-over effects on negotiations on biodiversity in
the Convention on Biological Diversity (CBD) and on plant genetic resources for food and agriculture in the UN’s Food and Agriculture Organization (FAO). They have poisoned the atmosphere in these other negotiations on various occasions. The kind of new enclosures being promoted by developed countries through the expansion of intellectual property rights in TRIPS led to responses in these other fora that make it more difficult for them to achieve their objectives. These are explored in depth in the print and online book The Future Control of Food (£19.99, Earthscan).
The big picture point, however, is to look beyond the technologies and legal detail to the questions of power and control in the food system. Who has what power to control change and write the rules? Who carries the risks and gets any benefits? How might any changes in the system support or undermine the vision of the future we are being led into?
Currently, we seem to have moved internationally in the wrong direction, with the ever-expanding reach of IP and its movement into agriculture, which had been the quintessential ‘open-source system’ of innovation, grounded in the local environment and the sharing and exchanging of materials. Instead, these new institutional arrangements promote wide dissemination of broadly adapted varieties controlled by a few firms, which feed into industrialised systems of farming.
The current GE approach will lead to a future that is more and more corporately controlled, privatised, with everything turned into a commodity to be traded; one that is centrally driven and which uses science and technology to dominate and control the environment.
It is not too late to change, though. Indeed, the International Assessment of Agricultural Science and Technology for Development, a major new report by more than 400 scientists published earlier this year, argued that the way the world grows its food will have to change radically better to serve the poor and hungry if the world is to cope with a growing population and climate change, while avoiding social breakdown and environmental collapse.
In agriculture, such approaches are being pioneered globally by a diverse group, from peasant and farmers’ movements to scientists. These see a future that is diverse, that melds traditional and scientific knowledge to develop ecologically smart, easily shared innovation that is locally and ecologically adapted and works with our environment. In other fields, e.g. medicines and software, the corporate dominated model is also being challenged.
In conclusion, for effective change in the area of genetic engineering and the food system as a whole, it is not sufficient to focus on science and technology, but also on the increasingly global laws and rules that frame and shape its use. Remember, intellectual property is a legal fiction; it is itself an invention, but unlike literary fiction it shapes what people and firms do. The meaning of the words used in the legal rules, decisions on what may and may not be patentable, are all the result of the interplay of vested interests seeking the rules that suit them. What we need are legal fictions that support the ecological realities we need to live with, not ones that undermine them in a Through the Looking-Glass contortion of language.
Geoff Tansey is a researcher and writer on intellectual property, food and agriculture, a director of the Food Ethics Council and a Joseph Rowntree Visionary for a Just and Peaceful World. The Future Control of Food: A Guide to International Negotiations and Rules on Intellectual Property, Biodiversity and Food Security is available to download here
‘Intellectual property is a legal fiction; it is itself an invention, but unlike literary fiction it shapes what people and firms do’
This article first appeared in the Ecologist November 2008