Rhetoric of invention and stewardship
Invention, innovation and property among indigenuous and local communities
Secret of the "inventive step"
The impact of previous biotechnologies on the Third World has been particularly devastating (Shiva 1991). The unregulated new biotechnology bodes more of the same. Because Third World countries comprise many of the globe's "centers of diversity," regions of the greatest crop genetic and specific diversity, they stand to suffer the most from gene introgression, invasion of weeds and proliferation of new viral elements, described above (Kareiva and Parker 1994). Furthermore, since genetically engineered crop plants, like conventional hybrids, are designed to yield a uniform product (in order to be protected by IPRs in part), their promotion is likely to aggravate the already precipitous "genetic erosion" throughout the Third World and elsewhere (Rissler and Mellon 1993; Shiva 1991). In addition the introduction of genetically engineered crops, protected by IPRs, that require high levels of chemical and technological input promises environmental degradation, the disappearance of essential traditional crops (deemed unimportant or noxious) and the widespread disruption of traditional communities and economies (Shiva 1993).
Because Third World countries in general currently lack legal frameworks for regulating biotechnology, let alone the institutional capacity to enforce such, they are the preferred sites for testing biotechnological inventions. Since the 1980s GEOs have been released unsupervised in thirteen Third World countries; illegal field tests have taken place in four countries, all but one of them in the Third World (Meister and Mayer 1994). Northern companies are also engaged in biotechnological vaccine trials in a number of Southern countries (Shiva 1993).
Rhetoric of invention and stewardship
The IUCN Environmental Law Centre treats in a summary manner the question of industrial IPRs--developed in the North--as they pertain to the CBD process:
These property systems reward human ingenuity, but ignore the nature's handiwork--the value of the raw material that is manipulated. They also fail to take into consideration the informal contribution of indigenous peoples and farmers to the maintenance and development of genetic diversity through years of cultivation and husbandry (Glowka, BurhenneÐGuilmin and Synge 1994: 5).This rhetoric implies that only First World industries, protected by "property systems," are ingenious. The livelihoods of indigenous peoples and farmers are considered ancillary, contributory and maintaining--but not originating. Thus it is easier to argue that they do not deserve the rewards of the "formal" system, embodied in international intellectual property rights law. Furthermore, in this statement nature is either personified or industry transcendentalized. In any case indigenous and traditional societies are given a subordinate status. Senior Officer of the UN Food and Agriculture Organization Cary Fowler's analysis of the development of IPRs in US agriculture is worth quoting at length:
Clearly, [plant breeders' patents] rewarded not the individual inventor, for in this case it would be the tree or bush that cross-pollinated with existing varieties to produce a new combination. In practice, the law even seemed to bypass he new variety's discoverer, typically a lucky farmer, or as in the first thornless rose, an observant 14-year-old boy. Instead the [Plant Patent Act] serves to reward the system which propagates the discovery, takes it to the patent office, and utilizes the patent to exclude others from reproducing and selling the patented discovery (1994: 92).The same applies for the protection of hybrid varieties. In fact, as Fowler points out, the development of intellectual property protection of plant varieties was facilitated by the disappearance of small farmers in the US (118). As the power of plant nurseries and seed companies grew, the property rights of individual farmers--presumably the original inventors--to their product and means of producing it diminished until it was considered a "privilege" (205).
Invention, innovation and property among indigenous and local communities
One of the first questions a Hopi farmer in his 80s asked us suspiciously when we began talking to him about the Hopi bean folk varieties he was harvesting was "Are you going to take Hopi seeds away and make money with them.--Soleri et al. 1994: 24
If IPRs can be divorced from "innovation" and "invention," their relationship with investment is no more certain. Contrary to Fowler's implication above, farmers who have bred plants in traditional, local and indigenous communities have not come by their discoveries simply through serendipity. Indeed, indigenous and local peoples have invested much in cultivating ecosystems and passing on the relevant, highly specialized knowledge--through a greater variety of means than do financiers. Even Fowler (1994) recognizes the parallel situation among US farmers. The traditional knowledge of indigenous and local communities is virtually coextensive with the variety of practices in which they are engaged. Very often the concept of "right" is based on the immemorial settlement of some land and the special relationship that has evolved between a community and its natural environment, including, for example, the web of systems of agriculture, silviculture and animal husbandry (Juma 1989; Shiva 1993).
When asked the question "Is it important to make sure that old Zuni peach varieties are not lost? Why?" the majority of a sample of Zuni farmers in the United States answered "yes"--and of those the majority explained "... for our children" (Soleri et al. 1994: 29). This illustrates the difference between traditional concepts of property and IPRs. Within the current patent system there is no place for concepts of communal or lineal connection to the land, or protection of inherited knowledge. Only "sole inventors" or "teams of inventors" are allowed to apply for claims. Application of such concepts in local and indigenous societies is sure to fracture them.
Feasible solutions have been proffered. Darrell Posey of Oxford University has suggested that diversifying the standards of international trade might lead to exciting prospects, if not obviously beneficial according to received market wisdom:
Minimally, demanding that knowledge of non-literate, indigenous and traditional peoples should be held on par with industrial knowledge of the 'civilized' world, will provoke major change.... GATT and TRIPs would certainly be more interesting than the boring 'free market' discourse of today. WIPO [the World Intellectual Property Organization] might even function in a more dynamic manner with a shaman, not an IPR lawyer, as its head (1994a: 226).The comment about the WIPO pertains also to the new WTO. Posey also suggests diversifying our concepts of property rights. Posey conceives of "traditional resource rights" as a "bundle" of rights covered by local, regional and global contracts and conventions on environment, trade, human rights etc. (Posey 1994b). Such instruments include the Universal Declaration of Human Rights, the International Labor Organisation's (ILO) Conventions 107 and 169, which call for the protection of the "collective" rights of indigenous peoples, and the recently drafted UN Resolution on the Rights of Indigenous Peoples.
Meanwhile, industries do not seem eager to "reward" indigenous peoples for their ingenuity with any sort of property rights. Even Shaman Pharmaceuticals, a US corporation, which publicly applauds itself for its appreciation of traditional knowledge and sensitivity to the needs of indigenous peoples, does not recognize or attempt to come to an agreement about the rights to ownership and protection in communities with which they work--even while acknowledging that these communities consider intellectual property rights and scientific credit for their achievements important. Instead they circumvent the issue by relying on "reciprocity," usually in the from of a few thousand dollars directed to community projects or recompense in the form of material goods (King 1994: 80; King and Tempesta 1993).
Secret of the "inventive step"
An element is still missing from our analysis that helps explain how and why certain products are protected as intellectual property and others not: who recognizes them as useful, novel and non-obvious; how this authority is maintained; what process or complex of practices or circumscribes and constitutes them, what makes certain practices "formal" and others "informal"--in short what the term "inventive step," or "inventive activity," encodes. (See Belcher and Hawtin 1991; Lesser 1990a.) What is the "trade secret" of intellectual property rights? A certain intellectual property claim does not apply to a single object, produced once, after all.
Cary Fowler has given us some illustrative hints (Fowler 1994). In what Walt Reid has referred to as the "botanical chess game" of the European colonial era (1992: 39), during which the colonial powers were accumulating and trading exotic plant species and turning them to industrial uses, Fowler sees the beginnings of process of rationalization in relation to economically valuable botanical materials, involving Weberian [Max Weber, nineteenth-century German sociologist] terms, "the explicit definition of goals and the increasingly precise calculation of the most effective means to achieve them ..." (1994: 22-3). The goals in question were commercial, and the calculations monetary. Already the definition of value and efficiency in European industry and agriculture had been narrowed. What followed was the development of procedures and institutions--botanical gardens, laboratories, processing centers--that realized this way of thinking. Considering a notable example, Fowler writes, "[I]t was ultimately the rationalization process, the development and exercise of the capability to use the material, not exclusive possession, that gave England its most meaningful form of "control" (24).
Juma has seen how this "rationalization" was continued in the Green Revolution, which he calls an "analogue of the production paradigm in industry" (1989: 79). Mass agricultural production requires the use of product-specific machines, in this case HYVs and certain mechanical and chemical inputs, and semi-skilled workers, in order to produce uniform goods. Moreover, mass production requires standardized components and procedures to make products "responsive to economies of scale" (79). The Green Revolution made factories of the fields.
Andrew Kimbrell has asked rhetorically, "What, after all, is the use or profitability of isolating and patenting human or other valuable genetic material unless it can be copied and produced in industrial quantities?" (1993: 214) The process of economic rationalization continues along a single axis. As we have seen, the promotion of biotechnology is an industrial policy aimed at giving countries like the United States and Japan renewed "competitive advantage" when previous ones have reached their structural limits, marginal productivity diminishing to negligible or uncompetitive levels. The cycle of technological change - intensive application - limit - technological change is characteristic of systems with centralized control and obsessed with a single strategy or measure of success.
Vandana Shiva, Director of the Research Foundation for Science, Technology and Natural Resource Policy in India, has elaborated greatly on the relationships among segregation of economic practices, "one-dimensional" productivity, uniformity of product, commoditization, and "external" and centralized control (1991, 1993). As noted at the beginning of this paper, Shiva refers to modern biotechnology as "biological engineering," to distinguish it from other human uses of living biological materials (1993: 109). She chooses these words because, unlike most traditional biotechnology, modern biotechnology is reductionistic and is measured against single scales of productivity and economic profit. In her own words:
The dominant approach to biodiversity is inadequate for conservation both because it values biodiversity only as a commodity, but also because it perceives biodiversity in a fragmented and atomised form. It views biodiversity merely as an arithmetic, numerical, additive category (87).The dominant system, she explains, is different from the "local system" (associated with indigenous peoples and traditional farmers) in several aspects (61). Economic production is divided into separate and unrelated systems, for example forestry versus agriculture. Each of these systems is regarded as one dimensional; each has its own ratio of cost and benefits. Productivity, for example, in the dominant, engineering-oriented system is a "one-dimensional measure unrelated to conservation" (Shiva 1993). Increasing productivity, considered beneficial, is then maximized. One effect is the destruction of diversity in the integrated system, whether it be biological or social. Another is the externalization of control of the system, as each component is exploited as a separate category and by separate processes. To the extent that this control coordinates the separate elements externally, it is also centralized. Speaking of the "dominant system," Calestous Juma has remarked, "The history of industrialization is part a story of the separation of production knowledge form end-use (products)" (1989: 109). That is to say, as control is externalized, knowledge of the functioning of the system becomes more abstract, developing its own attendant practices and institutions: agri-business, banks, company hierarchies, bureaucracies, research. Concerning the last point Walt Reid adds, "IPR regimes compound this bias toward centralized research. The value of a new crop variety developed by the private sector and protected by IPRs is directly related to the size of the market" (1992: 6).
Explaining the ideological roots of the Green Revolution's destruction and the prospects of the new biotechnology revolution, Shiva states, "The engineering paradigm offers technological fixes to complex problems, and by ignoring the complexity, generates new ecological problems which are later defined away as 'unanticipated side effects' and 'negative externalities'." (1993: 109) Thus biotechnology is part of a vicious, centripetal cycle, reproducing an unsustainable system in every more intensive, and alternately, extensive forms--leaving in its wake environmental ruin and social disruption.
Shiva's main contention is that the value of biological diversity is its diversity and complexity. An alternative to the "engineering paradigm" and capital-intensive modern industry, sustainable livelihoods are based on respect for diversity and recognition of multiple, different elements interacting in a dynamic, systematic whole. By definition the control of such a multicomponent system is decentralized and internally regulated. Humans create and nurture the value of diversity, but they do so by putting themselves in the multifarious context of the environment.
The contention by supporters of biotechnology that genetic engineering increases biological diversity is a confusion of the competitive strategy of commodity diversification with the ecological conservation of biodiversity. Shiva, citing Kloppenburg (1988), illustrates this with the example of the engineering of herbicide-resistant tobacco:
It might be said that Calgene [a US biotechnology company] has added variability to the tobacco genepool. But if that gene is a commercial success and is incorporated into most tobacco cultivars, the result may be increased genetic uniformity in that crop (114; see also Juma 1989: 114).
We are posed, therefore, with a difficult, but not intractable, problem. The "inventive step" seems to have turned out to be the process of creating a unique, identifiable, mass-marketable product--a commodity. Intellectual property rights (cf. technological "innovation"), as we know them, is an integral part of a system of commoditization, profit and economic control--an unsustainable system. In the final analysis unregulated biotechnology coupled with intellectual property rights, especially patents, is a contrivance to dominate the market and maximize profit. All its professed goals are merely means to a single end. It has nothing to do with invention and reward, or sustainable economic development and solutions to environmental and social problems. Quite the opposite, it invites ecological and socio-economic disaster.
In the following section some solutions are proposed, based on the idea that diversity is a strategy of survival, as much as a fact of nature.