Current Intellectual Property Systems - Assignment Example

Current Intellectual Property Systems Serves As A Tool Of Economic Colonialism By Which Industrialized Economies Are Able To Exploit Developing And Least Developing Economies: Property rights refer to institutionally protected benefit stream claims. They are meant to provide a clear relationship between property owners, the property itself, and the property users (non-owners). Some of the Intellectual property rights include; Patents, copyrights, trademarks, geographical indications, trade secrets and industrial designs (Graham, 2000.p.57). An Intellectual Property Rights system describes a set of both written and customary rules that are applied in community to define and regulate the manner and scope of access to ideas and inventions. This paper will discuss notion that the current intellectual property systems serves as a tool of economic colonialism by which industrialized economies are able to exploit developing and least developing economies. Current IPR systems are a tool by which industrialized nations have blocked transfer of technology as well as promote piracy of developing economies’ indigenous knowledge and biodiversity (Graham, 2000.p.57). Northern countries could well become monopolies owners of knowledge if the IPRs are not reviewed. Northern countries may monopolize the knowledge which they have derived over the years from indigenous cultures of the developing nations and then sell them expensively to the already weakened Third world countries hence make them even poorer. It is general knowledge that the livelihoods and survival of populations of the South heavily rely on biodiversity. Therefore, the use of IPRs to “rob” them of their knowledge and resources is a direct attack on their livelihood and survival (Shiva, 2001.p.23). To start with, it is important to explain briefly the various IPR categories mentioned above. Trade marks refer to those property rights aimed at protecting symbols, words and marks which businesses use to make different, their goods and/or services from those of others. On the other hand, copyrights are meant to protect an individual’s original ideological expression in material form such as the computer software/databases and scientific publications. In IPR systems, trade secrets are meant to protect the subject matter which for some reason may not be patentable. For instance, scientific knowledge may be protected through trade secrets so that others do not access its subject matter and use it as if it were their own ideas. But unlike patents, trade secrets alone do not have capacity to stop others from generating and applying a differentiated version of the same ideas (Granstrand, 2003.p.560). Patents are a form of property rights which give the originator exclusive rights of ownership for a specified period of time during which no other party is permitted to produce, use, or even trade in the invention so patented. Such an invention is required to be original and novel; not an extension of some existing idea that was previously known. It is also mandatory therefore that upon receiving the patent, the full written description and subject matter of the invention being patented be published. Patents may cover authors of books, scientific publications, utility, and plant patents. Utility patents are those which protect agricultural research works and products and technologies such as plant tissue cultures and plant DNA sequences (Graham, 2000.p.58). Developing economies are relatively rich in biodiversity compared to industrialized nations. This is because the distribution pattern of the world’s biodiversity is such that biodiversity increases towards the equator (where most developing countries are located) and reduces towards the poles (where most industrialized nations are located) G/Egziabher (2000). Developed economies derive biodiversity free of charge from the least developed nations and using their biotechnology, generate many products for sale and make a lot of wealth. Ironically, having developed products from resources gotten from least developed economies, the industrialized economies came up with property rights so as to patent the products. Industrialized nations do not give regard to property holding systems initiated in the least developed nations. Therefore the developing nations find themselves losing their knowledge, biological resources and inventions because of the structural imbalances that exist between them and the developed nations (Shailaja, 2009.p.182). In the gunboat age patents regimes, technology could only colonize the land. However, in the digital age patents regimes, technology can colonize life itself. In the digital age, patents and IPRs possess the same historical elements of conquest that limit prior rights and expunge cultural histories. The creation of a connection between rights and the notion of “one language, one culture and one world” serves to disenfranchise other languages, cultures and worldviews hence promoting the misuse of native knowledge and biodiversity using patents. Whereas the language of Christianity was applied in the colonial period to rob non-Europeans of their land and natural resources, in the digital era, the language of “genes and molecules” has been used to rob biological and intellectual heritage from the least developed economies. In the colonial era, patents were applied in the territorial conquest. In the digital era, patents are directed towards conquest of economies (Shiva, 2001.p.23). In discussing IPRs, indigenous knowledge provide an interesting yet very critical subject since it is unique to a specific group, culture or society. Such knowledge is acquired and developed through skills and unique techniques (i.e. internal creativity) of the cultural group or society to which it is traced and need be protected under the intellectual property systems. This unique knowledge is valuable both to the holder community and to the global community as it contributes to the universal knowledge that is important for generations to come. However, many people tend to perceive/associate indigenous knowledge with “traditional knowledge”, meaning the type of knowledge originating from “those who are not developed”. This view simply means that indigenous knowledge is regarded different from “modern scientific knowledge”. According to Matose and Mukamuri (1993), Knowledge is formulated based on politics, culture, economics, and power relations. As such, it is tailored to favor those who are on the right side of politics, culture, economics, and power relations, at the expense of the “powerless” (the relatively disadvantaged) who therefore have no other option but to acknowledge the knowledge of their powerful counterparts. Put differently, the knowledge of the “powerful” determines what is to be recognized as “knowledge’’ and the powerless should not question. This is the genesis of colonialism extension using intellectual property rights regimes in which the les powerful are subdued by the powerful. The immediate concern would be how such property rights molded along power discourses (specifically from the powerful) could benefit the powerless (Pugatch, 2004.p.136). On the one hand, it is true that developing nations right from onset, never saw the need to attach so much value to indigenous knowledge to the extend that they could protect them under traditional intellectual property systems. It is for this reason that in the wake of globalization, the least developed nations are exposed to the risk of being “robbed” their traditional and cultural knowledge if not protected. On the other hand, the current intellectual property rights regimes do not provide a level playing field since the industrialized economies have taken on both the roles of player and referee at the same time in the biological resources game in which the opponent (developing economies) is only expected to adhere to the rules of the game (Shiva, 2001.p.23). One of the rules of the game advocated for by the developed economies was formulated to provide that biodiversity should be treated as a common heritage and need to be exploited and be preserved to benefit the general mankind (Kameri-Mbote, 2000). Developed nations wanted to use this provision to gain a guaranteed access to the resources. But after they use the resources to develop products, they become rigid (in the name of patents) to prevent others from benefiting. Furthermore, developed countries have taken the advantage of the lack of adequate documentation of resources by the least developed communities to exploit them. In the industrialized nations, intellectual property is clearly defined and regulated through individual or corporate ownership (Richards, 2004.p.12). The current Western intellectual property rights (IPR) systems promote private rights and collective knowledge ideologies. This may also imply that community rights will gain recognition only if the community is a “company”. For this reason, it is highly inappropriate to define IPR regime for traditional communities with reference to modern societies. This is because traditional communities promote the culture of sharing which has characterized their relations for generations. The colonial masters served to transfer communal rights to individuals, thus whatever property/resource that was not owned by either an individual or company could open for use by anyone (Pugatch, 2004.p.136). It has been argued that developed nations tend to pirate indigenous knowledge by utilization of their highly sophisticated research equipment while the least developed economies continue to lag behind not knowing exactly what to do with their wealth of knowledge. Of the active ingredients used by researchers to develop prescription drugs, three quarters derived from usage in traditional medicine (Nijar, 1996a). Nijar also established that 74% of the 120 active compounds which have been separated from higher plants to be used in contemporary medicine display a correlation between the traditional use of the mother plant and their contemporary medicinal use. More so, the plant screening efficiency is said to have been increased through traditional knowledge by about 400% (Nijar, 1996b). It has been argued that the introduction of trade related intellectual property rights (TRIPS) was primarily meant to “impose the western broken IP system to the rest of the world”. Those who support this notion have argued that a quiet revolution was began in the US by an introduction of IPRs strengthening institutional changes which served to extend scope of patents into areas not expected, and also create stiffer penalties for violation of IPRs. One of the key changes to IPRs is associated with the establishment the “Patent Court”, a centralized appellate court created in 1992 to deal with Patent related cases. The main aim was to strengthen the rights patent holders. Another notable change is to do with the 1980 approval of the Bay-Dole Act in the US which served to promote rendering commercial, public sector inventions; a move which permitted the granting of patents and licensing of research contract results by Universities and other public institutions. Some of the activities currently included in the Patent protection regime were previously not eligible. These include for instance, trivial things such as; breast measuring devices for “‘measuring breasts with a tape to determine bra size’, or ‘executing a tennis stroke while wearing a knee pad’ (Pugatch, 2004.p.137). Current IPR systems have made it easier for the firms in industrialized economies to have higher propensity to patent more hence keep to themselves as many technologies as possible so that they can stop other firms from growing while ensuring they are on the safer side not to be blocked themselves. Put simply, they discourage innovation by limiting it to a few firms. Quite a number of concerns have emerged from non-governmental organizations, civil activists and the general public openly denouncing the TRIPS as “a colonialist act imposing the western standard of the IPRs system on the rest of the world”. They argue that the TRIPS have been used as a major tool for extending the “silent IPRs revolution” beyond the west (Shailaja, 2009.p.183). In the colonial past, letters, patents and charters were used to create property rights to cover conquered lands. The dual verb “discover and conquer” was mostly frequently applied in Columbus charter and was usually applied seven times to assert before discovery, rights to all “islands and mainlands”. Following this background, in contemporary society, there have been witnessed conflicts emanating from the GATT and WTO generated patents because both GATT and WTO have been perceived largely by the Third world nations as re-colonization tools. Just like the discovery claim was use to justify colonial conquest in the past, claim to invention is used today to justify the hijacking of economies and markets through patents and IPRs globalization. The promise of reward for inventiveness is aimed at hiding the real motives of the project- to exercise control over the world economy. It is this that has stirred conflict and controversy over patents (Richards, 2004.p.12). Through TRIPS agreements, there was an introduction of mandatory enforcement throughout all the member states hence the previous standards were reinforced. Some of the articles of the WTO provide an example to show the nature of compelling provisions adopted that serve to justify claims that the TRIPS are meant to be imposed to nations beyond the west. These include among others; article 10 of the TRIPS which provides for software and data sets copyright protection and a fixed protection duration of not less than 50 years and article 4 of the TRIPS that stipulates and applies the “most favored nations clause” to IPRS. TRIPS have thus been used to facilitate the exportation of IP systems of the industrialized economies to the least developed economies (Shiva, 2001.p.24). Looking at the historical development of patents, it is evident that the early legislation on U.S patents favored introduction of new methods that were practiced elsewhere though unknown to the U.S. This means that the patents were not in any way related to inventiveness. The U.S laws on monopolies thus methodically overlooked “prior art and prior use” in other nations. Ironically, section 102 of the U.S Patent Act of 1952 recognizes use in the U.S and publication in other countries as a prior art, yet the same Act does not recognize as prior Art, use in foreign countries. Considering that the primary aim of patents is to protect new inventions, any attempt to deny or refuse to recognize prior art elsewhere means giving permission to use of patents to allow use of existing knowledge in other countries. By doing so, a foundation is established for bio-piracy of knowledge and biological resources (Shailaja, 2009.p.183). Denial of prior art is evident in the US statute that was primarily crafted to establish the US as an independent industrial power. The statute was designed such that the ignorance of prior innovation would be used as basis of invention. Instead of playing the intellectual piracy prevention role, the US legal regime is itself premised on legitimizing piracy. This explains why ginger, neem, and turmeric among others have been patented. Taking the turmeric case for instance, turmeric is a medicinal plant used in India to provide some kind of “magic cure”. It is orange rooted and is known to have been part of the components of ayurdermic medicine. Turmeric is the subcontinent’s native plant and has been used to cure inflammatory conditions, cure sprains and heal wounds over the years. In spite of this, two US scientists from Mississippi were granted patent to use the turmeric plant in healing wounds. Even when India filed a suit to challenge the patent, the Indian government was required to submit written proof to the effect that turmeric was used in India specifically for healing wounds and such proof must be presented as a predated academic paper before the appeal can be upheld. While applying for the patent, researchers from US agreed that the turmeric plant had long been used in India to cure inflammatory conditions and treat sprains but they emphasized fact that there was no research that had been done pointing to the same (Graham, 2000.p.58). The irony of it all is that the patent was granted because the Indian discovery process of turmeric as a healer plant could not be sustained as research. It thus implies that no traditional based knowledge can meet the patent threshold. Furthermore, it would mean that indigenous knowledge can be taken by any scientific researcher and without adding any more value, push it through a recognized scientific research process and acquire a patent for selfish gains (Graham, 2000.p.58). Bio-piracy can be traced back to the colonial assumption of “the empty earth” (Terra Nullius) which simply meant that a territory that was empty of “white Christians” was empty indeed. The contemporary analogy of this assumption has substituted “empty life” for “empty earth”. Thus today’s “inventions” are the humans, plants, animals and micro organisms. This is so regardless of fact that life forms can not be said to be human inventions, and knowledge is assumed to be a discovery of western science even when the knowledge has existed in indigenous cultures for several years (Shiva, 2001.p.24). In 1971, the US patent office granted the first ever patent of life to Anand Mohan Chakravarty’s genetically engineered pseudomonas bacteria in what went down in history to be the advent of bio-piracy. Chakravarty transplanted plasmids derived from three types of bacteria to come up with a forth type of bacteria. Asked how? Chakravarty explained; “I simply shuffled genes, changing bacteria that already existed.” The U.S patent office argued that the micro-organism was Chakravarty’s invention and not a product of nature hence qualified for patent. Perhaps as argued by Kimbrell, the Supreme Court never realized that Chakravarty had stated that he only shuffled genes and not created life (Bernier, 2002.p.115). The patent office and not parliamentary deliberations, or public consultative forum generated a major diversion in the scope of patents. These patents on life were later to be internationalized through a decision at the Uruguay Round of GATT which allowed inclusion of IPRS in trade agreements, and life in IPR regimes. The GATT generated TRIPS agreements that were developed gave way for monopolistic control of life forms hence significantly influenced policies aimed at environmental and biodiversity conservation. During the Uruguay Round, there was no adequate deliberation of the key ethical, ecological and economic issues related to the patenting of life forms and thus TRIPS were basically imposed on countries (Stewart 1999.p.557). According to US, it is “impractical” to require that applicants for patents should specify the source of the genetic materials or the source of traditional knowledge they used. Whereas it is important to recognize indigenous knowledge as a test for inventiveness and originality by any given patent system, it is ironical how screening for prior art becomes “impractical” where traditional knowledge is in question. Forcing all nations to change their patent regimes amid protests especially for patents on life forms is not “impractical”. Systematic changing of global cultures and implementing property rights on seed is considered practical. Using resources from the least developed economies to develop products then demand royalties from them is practical. However, it is “impractical” to make amend one clause of the TRIPS or US laws (Stewart 1999.p.557). While the least developed nations including the African group, India, and five Latin and Central American nations expressed their concerns and called for amendments to Article 278.3(b) in their legal right as entrenched in the Agreement, the industrialized nations (US and Europe) have turned their backs on the issue of TRIPS reforms and have displayed determination to block any such attempts because the US and Europe does not want WTO to be subordinated to any other international agreements. It is because of this that the least developed economies have considered the WTO to be an undemocratic governing body through which the industrialized North derives corporate monopoly protection at the expense of nature and the least developed economies and all these take place under the international agreements and national laws umbrella (Shailaja, 2009.p.183). In conclusion, it is important to reiterate fact that current intellectual property systems are a tool by which the industrialized economies re-colonize the least developed economies. It is true that today’s colonization is different to that of “yesterday” in some respects but both are similar in approach and content. In today’s colonization, religion is not the justification tool for the conquest; but the market is the new religion concept behind the secular recolonization project. Whereas territory and mineral deposits were yesterday’s objects of conquest, today, the markets and economies are the objects at stake. Just as land was the property in yesterday’s conquest, today, knowledge, though not a property itself, must be converted into property by labeling it “intellectual property” which literally means “property in the products of the mind”. Of course the intention of this knowledge so invented and patented in the form of patentable product (intellectual property) is to justify that it has been “discovered”, just the same way indigenous land was “discovered” and patented in the colonial era. If not reviewed, the current IPR systems serve to enrich the industrialized economies at the expense of the least developed economies (Shiva, 2001.p.24). References Bernier L. (2002).Justice in Genetics: Intellectual Property and Human Rights from a Cosmopolitan Liberal Perspective, Massachusetts: Edward Elgar Publishing,.p.115 G/Egziabher, T.B.(2000). Intellectual Property Rights in Biological Diversity and Trade Agreements; The Institute for Sustainable Development, Addis Ababa. Graham D. (2000). Intellectual property rights, trade, and biodiversity: seeds and plant varieties, London: Earthscan, p.57 Granstrand O. (2003). Economics, law, and intellectual property: seeking strategies for research and teaching in a developing field, Norwell: Springer, p.560 Kameri-Mbote P. (2000). Community Rights, Farmers and Breeders Rights in Africa: Towards a Legal Framework for Sui Generis Legislation, African Centre for Technology Studies, Nairobi. Draft Working Paper Presented at the FAO/IUCN Regional Workshop on Community Rights, Farmers and Breeders Rights, Nyanga, Zimbabwe, October 29 – November 1, 2000. Matose F. & Mukamuri B.(1996). Trees, People and Communities in Zimbabwe’s Communal Lands): In: Rural People’s Knowledge and Extension Practice: Sustainable Agriculture Development Program of the International Institute for Environment and Development. Research Series Vol. 1 No. 2 Nijar G. S. (1996)a In Defense of Community Knowledge and Biodiversity. A Conceptual Framework and the Essential Elements of a Rights Regime: Third World Network, Penang. Nijar G. S. (1996)b. TRIPs and Biodiversity: The Threat and Responses: A Third World View, Third World Network: Penang. Pugatch M.P. (2004). The international political economy of intellectual property rights, Massachusetts: Edward Elgar Publishing, p.136 Richards D.G. (2004). Intellectual property rights and global capitalism: the political economy of the TRIPS Agreement, New York: M.E. Sharpe, p.12 Shailaja F (2009). Rules, rubrics and riches: the interrelations between legal reform and international development, New York: Taylor & Francis, p.182 Shiva V (2001). Protect or plunder?: understanding intellectual property rights Global issues series-Global issues in a changing world; New Delhi: Zed Books, p.23 Stewart T.P. (1999). The GATT Uruguay Round: a negotiating history (1986-1994), The Hague: Kluwer Law International, p.557 Read More