SPECIAL ARTICLE Intellectual Property Rights: Excluding Other Rights of Other People
Rajshree Chandra
This article interrogates the claims of intellectual property to be a right. Drawing on the political theory of rights, it argues that information, ideas and knowledge fail to meet the basic test of rights and intellectual property right prevents those who do not own it from accessing and exercising their own diverse rights. Thus, it violates the very idea of individual autonomy on which it bases its claims. The article further looks at the contested areas of traditional knowledge, farmers’ rights and health rights to illustrate the unsolved contradiction intellectual property rights poses to the liberal doctrine of rights.
Rajshree Chandra (rchandra_ahuja@yahoo.com) teaches political science in the University of Delhi.
A
Theoretical Foundation for Property Rights
The right to property, in general, belongs to the domain of “negative rights” which have exclusionary aspects built into the claim. To exclude is a basic strategy of property rights. Following Hohfeld, the root idea of a property right can be expressed as follows: “To say that someone has a right is to say there exists a state of affairs in which one person (the right holder) has a claim on act of forbearance from another person (the duty bearer)…”1 The exclusion strategy protects the rights-holders’ interests, who is granted exclusive rights over the use, disposal and transfer of property.
Exclusion strategies are, however, employed differently and with different effects, by tangible and intangible property. Property rights over tangible, finite, scarce objects are a means to regulate ownership and solve the allocation problem in society. Property covers a broad range of resources, from solid objects like land and cars to resources like water to intangibles like debts. But all these objects and resources are united by virtue of their being finite entities, prone to depletion and exhaustion. Depletion and exhaustion of natural resources, leading to scarcity, after all, was the motivation behind the allocational impulse of property rights.
But, as a resource, information is different from all of these. From the consumer’s point of view, information/idea/knowledge
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is non-rival and non-excludable: one person’s enjoyment of the plot of Macbeth does not diminish another’s (if anything, the opposite), and preventing people from using information is difficult. The possession and use of intellectual property (IP) is not limited to one person at a time. If I sing a song, you could be singing it somewhere else at the same time without interfering with my ‘‘use’’. Ideas are, therefore, non-rival, as they can be concurrently used without rivaling another’s use.
IP, further in another point of departure from tangible property, does not get depleted by use. It bears the feature of nonexhaustion. Even land, the quintessential symbol of permanence, loses its capacity to support crops and must be replenished. This depletion does not affect IP because an idea can exist forever and there is an infinite source of ideas. Your singing my song does not wear out the tune. Nor does your use of the idea underlying my patented invention destroy the idea. In other words use neither depletes nor exhausts an idea.
In a third point of departure, earlier forms of property including labour, had a clearly identifiable source and were, therefore, amenable to characterisation as “separate” and individually owned. Knowledge, by contrast, defies such characterisation; it is something that is incremental, contextual, cultural, and clearly not a product of an individual mind alone. The separate and the clearly divisible character of earlier forms of property seem absent here. This comes to have a significant bearing on the exclusionary premises of IP.
Typically, rights do not surround the abstract non-physical e ntity; rather, IPRs control the physical manifestations of expressions.2 IPRs protect ideas by protecting, through rights, the physical manifestations or instantiations of those ideas. It is important to point out that ownership of an idea, or ideal object, effectively gives the IP owners a property right in every physical embodiment of that work or invention. IPRs, at least for patents and copyrights, may therefore be, considered rights in ideal as well as material objects. The ownership of the latter would not be possible without the propertisation of the former.
The classical distinction between what could be considered property was contingent upon the reification of ownership relations. For a thing to be owned, an item had to fulfil the criteria of separatedness, excludability and alienability. Subjective rights, like property in self, person, were considered innate and inalienable, and therefore defied propertisation. However Locke’s theory of property, and the impact it had on liberal conceptions of property as well as on property institutions, began a process of breaking down the earlier ontological association of property with “things”. According to Locke man held property in his person, or in other words, owned himself. Locke’s concept of self-ownership proposed that a man “owns” his labour and therefore, also that with which he mixes his labour. Thus if you mix your labour with clay and make a pot, that pot now conforms to the criteria of being separable, alienable and excludable – it exists as a separate thing that can be owned and the owner could exclude others from its use. Locke’s labour theory thus materialised an intangible like labour, in the material form created.
The principle of self-ownership (s-o) is a powerful way of expressing the principle of individual liberty which claims that
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individuals have full “property rights” over their body, skills and labour, and anything, justly acquired, with which they mix these becomes theirs to own, exclude, use and dispose freely. It forms the intuitive argument which people use for legitimating all forms of property and the initial bias for rights in IP. This theory became the “natural rights” claim for property rights in tangible/ physical property. For Locke, rights over life, liberty and estate were fundamental natural rights essential for self-preservation. Nozick too links property rights over a person’s productive capacities to the preservation of his autonomy and freedom. Andrew Joseph Galambos believes that man has property rights in his own life (primary property) and in all “non-procreative derivatives of his life”.3 There is no doubt that s-o presents a powerful defence for property rights. But it has had problematic implications for IPRs. It poses a “liberal” dilemma even for libertarians who hold that creations of the mind, like tangible property, are entitled to protection.4 The very principle of liberty, that was upheld by Locke and Nozick in defence of property as a natural right, also trumps its extension to the realm of IP.
Excluding ‘Like’ Rights
A general argument, employed for tangible property and extended to IP, is that people deserve property rights because they employ their self-owned labour – physical or mental. However, settling the issue of rewards, especially for IP, is not as straightforward. There are two important considerations: first, who ought to be the bearer of this reward and, second, what ought to be a reward that is commensurate with the labour expended.
The first issue leads us to consider who is the creator of this (intellectual) property? Edwin Hettinger argues that ‘intellectual activity is not creation ex nihilo,5 i e, invention, writing and thought do not happen in a vacuum. The creation of an idea has an unmistakable social and historical component. Ideas, knowledge and thoughts of a person are crucially dependent on ideas and thoughts of the preceding generation. Ideas are therefore fundamentally intergenerational and have a social and cultural constituency. Separating the “creator” from this social and historical component is not easy. Hence if we assume that the l abourer is entitled to a market value of the resultant product then this market value ought to be shared by all contributors to the resultant product. The fact that most contributors may not be identifiable or even present is no reason why the entire market value is to be handed over to the last contributor.6
Further, that this reward ought to be in the form of a patent, for instance, is determined by social policies that have come to dominate trade and exchange and is therefore, not morally incumbent. When this “reward” is in the form of a patent, rather than say a first sale commanding a high premium, the exclusionary impact created is beyond what can be morally defended. To enforce patent laws is to prevent people from making peaceful use of similar ideas and information they may possess. The concurrent or simultaneous use of an idea by more than one person does not inflict any limitation on anyone. On the contrary, an attempt to prevent free use of ideas restricts the unhindered use of ideas by people who already possess them. It infringes their rights of freedom of thought and expression. What IPRs do is not only
SPECIAL ARTICLE
grant the holder property rights over the product of his intellectual labour, but also simultaneously take this right away from others, by prohibiting others’ free use of their self-owned mental labour to create the same product. The fundamental value that our society places on freedom of thought and expression creates a difficulty for justification of IP. Private IP restricts the methods of acquiring ideas, the use of ideas and the expression of ideas. These restrictions militate against the very notion of individual autonomy that IPRs set out to protect.
Since it is violative of others’ rights to their property – both intellectual and physical – there is, thus, a great degree of unease expressed about the protection of IP interests among those who purport to treat individual liberty as the highest good. IPRs, to use a Nozickean expression, do infringe upon the “like liberties of others”. Property rights, in libertarian readings, can be interpreted to be a derivative of the right to liberty all humans are entitled to. It follows logically then that property ought to be consistent with other liberties of other people, liberty being, to use Lawrence Becker’s phrase, the “originating right”.7
So far it has been argued that IPRs, while upholding rights to the fruits of one’s mental labour, have a potential to conflict with others’ rights to their physical or mental labour. But people have rights other than to the fruits of their labour; there are other rights in the system, more critical to sustaining freedoms and liberty than the right to property. The next section argues that the exclusionary premises of IPRs inevitably extend to the consequences that these generates for other rights – right of subsistence, livelihood, community knowledge, etc – rights which have become aspects of human rights owing to their capacity and ability to impact lives.
IP Rights and ‘Other’ Rights
IPRs are a domain of rights that are both “universalistic” in conception as well as in application. It is based on the assumption that rights and property practices need not be culture specific, or that they need not be contextual in nature. The contention here would be that there is a sharp tension between universalistic conceptions of property rights, particularly IPRs and the cultural and contextual nature of intellectual practices. The cultural and intellectual domination that is implied by intellectual property rights impinges and infringes a range of rights like knowledge rights, livelihood rights, right to subsistence, health rights, right to life, etc. All of these latter rights have become an important part of the human rights discourse which has gained acceptability across the globe not only among social movements, intellectual debates and policy forums but also within official and quasi-official protocols.
The range of rights that IP rights seek to infringe, either directly or by implication, are diverse. This paper looks at three such rights: farmers’ rights, health rights and knowledge rights. These three rights represent a domain of rights which are loosely referred to as rights but which usually lack full legal protection that “rights” stipulate. So they are more in nature of claims which are seeking protection, as they stand diminished by IPRs. As
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Thomas Pooge would argue, these are claims which are emanating from non-fulfilment of negative duties on part of the IPRs holders
– the duty not to interfere with the intellectual practices of “other” people. They have been referred to as rights of “other” people for these are rights which have arisen in the context of economic and cultural exclusion for communities who have remained outside of, and unintegrated with, the global economy, polity and international relations law.
Excluding Knowledge Rights
Knowledge rights of “other” people often exist as discrete systems of information and understanding about aspects of nature and held by communities and peoples who are traditional and/or indigenous. Termed as traditional knowledge, they form aspects of their everyday life which link up with subsistence, medicines, livelihood, etc, for the continued survival of the community.8
It is often argued that knowledge rights of the traditional/ indigenous peoples are violated when their knowledges are “pirated” (implying a one-way genetic resource flow) and benefits from their contributions to science, technology and ecology are ignored. This has been attributed, in a large measure, to the IP protection sanctioned by the TRIPS (trade related aspects of intellectual property rights) regime which recognises and rewards innovative activity that is “novel”, “non-obvious” and usually of some benefit to society. It has been argued that what is regarded as innovation ignores the form and the kind of innovative activity undertaken by the traditional and indigenous communities. In doing so, it has been alleged, the TRIPS regime becomes an international, legal institution that fosters the intellectual dominance of the western modern sciences and fails to acknowledge and reward global intellectual pluralism.
Traditional knowledge has two features which are important in the context of IPRs. One, traditional knowledge is often collective in nature and is therefore considered a common resource of the entire community, not belonging to any single individual within the community.9 Two, the development of traditional knowledge, covering all aspects of life, is linked to the subsistence and livelihoods of the people who are part of this ecosystem.10 Thus when we talk of the issue of knowledge rights of the traditional indigenous peoples one has to bear in mind that these are linked to the survival strategies of these communities.
The interface of traditional knowledge and IPRs results in a “double exclusion” for knowledge rights of the indigenous people. The first stems from biopiracy and the inequitability of benefit sharing, the second from the individuation of knowledge rights into systems which reward western scientific endeavours and innovation to the exclusion of “other” ways of negotiating nature.
The first exclusion stems from the growing realisation of the value of traditional knowledge.11 Indigenous knowledge seems to be relevant to the scientific world for a number of reasons including issues of biodiversity protection,12 as a source of alternative pharmaceutical remedies, as the starting point in the construction of a truly alternative agriculture.13
The TRIPS regime, along with other IPR mechanisms such as the International Union for the Protection of New Varieties of Plants (UPOV), has had far-reaching effects in relation to the knowledge and resources of indigenous peoples. First, the agreement greatly altered how biodiversity was to be used and controlled. By conferring a property right to the biotechnological innovators it transferred the tacit rights that local communities had over generations to their local environment and resources, to a legal right that bio-prospectors could hold by freely accessing unprotected commons.
The second “exclusion” stems from the propertisation of knowledge rights in a manner that infringes upon the traditional knowledge rights of indigenous peoples. IP is a legal concept that deals with creations of human ingenuity, provided that their creators meet certain criteria. And there are several characteristics of traditional knowledge that create barriers to protection through the use of existing forms of IPRs.14 These are:
(iii) Traditional and indigenous knowledge mostly resides in the “public domain” which is used to deny its claims for IP protection.
A claim to legal control over traditional knowledge would normally fail, as it does in most cases of traditional or indigenous knowledge, if there is no external manifestation or precise delineation, no identifiable author or inventor, no novelty or originality. Once rendered outside the ambit of IP protection, either these “ collective commons” are freely encroached upon – as were atte mpts in cases of Neem, Turmeric, Basmati, Enola Benas of Mexico, medicinal “Ayahusca” of the Amazon basin, the Peruvian Maca plant and innumerable other instances; or ways and means are evolved to ensure that the knowledge rights of the traditional communities are integrated within the existing framework of TRIPS with certain safeguards for traditional communities. These safeguards however, strip the traditional communities’ rights to their bare minimum in order to ensure an easy compliance with the TRIPS laws.
There has been no agreement reached, for instance, on the incorporation of a “disclosure” clause which could be employed to promote and encourage prior informed consent and equitable sharing of benefits on mutually agreed terms. The July 2008 WTO ministerial failed to come to a consensus, the disclosure provision being blocked by at least 15 countries including Argen tina, Australia, Canada, Chile, Costa Rica, New Zealand, and the US.
Overall, benefit sharing constitutes a useful strategy to ease some of the adverse impacts of biopiracy. Without benefit sharing, such knowledge may be taken from its current holders without any form of acknowledgement or compensation. However, the issue of the form of protection raises a vital question: is the legitimacy and legal recognition of traditional knowledge based on the establishment of prior use and fair disclosures or does it have a broader claim?
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SPECIAL ARTICLE
I argue that the establishment of prior knowledge/use, and the right to benefit sharing is not a sufficient right to put knowledge rights claims at par with western modern sciences. Prior art or use only ensures, temporarily, that the specific knowledge does not belong to a domain over which any individual or institutional IPRs claim can be established, or that the original h olders of that knowledge are entitled to compensation. It does not specify the conditions under which the traditional knowledge holder may claim his right.15 Being protected from piracy and sharing benefits does not contribute to the definition of an alternative regime to patents. Indeed, while they seek to limit the impact of the introduction of patents in the field of biological r esources, they do not seek to accord any property rights to c urrent holders of knowledge.
IP rights, like other property rights, are aggregates of different sorts of rights and rights-correlatives. The right to possess/own is sharply distinguished from mere protection of possession which is what the “‘prior art’ clause or benefit sharing mechanisms seek to do. The right to possess, i e, to have ownership, is not merely the liberty to keep. The liberty to keep” (granted to the traditional knowledge holders as a consequence of a successful challenge or through an entry into traditional knowledge documentation) only states that others have no claim on it in the form of patents or other IP rights; it does not establish the traditional holder’s IPR claims.
Globally, the knowledge rights of the traditional peoples have a purely “derived status”. They are, to use Becker’s classification,16 a secondary right. Secondary rights are those “which are entailed by the existence of another right, and are extinguished when the primary right is extinguished”. Traditional knowledge rights, as a legal claim for being considered as IP, does not exist. There is not much of a legal claim for the consideration of alternate knowledge rights regimes such as “community property rights”. As Joel Feinberg states “the legal power to claim one’s right or the things to which one has a right, seems to be essential to the very notion of a right. A right to which one could not make a claim would be a very ‘imperfect’ right indeed!”.17
TRIPS has no alternate conception of rights that could protect the traditional and indigenous societies’ knowledge and resources, both of which were held communally. Recognising IP of one kind and not recognising the IP rights of the other kind, the one that exists in a “non-scientific” paradigm, reinstates the cultural and epistemic hierarchies of the west. As Pat Mooney of RAFI18 (Rural Advancement Foundation International) stated, “The argument that IP is recognisable when performed in laboratories with white lab coats is fundamentally a racist view of scientific development”. Claims of indigenous knowledge holders are based on completely different cultural norms. The subsumption of diverse knowledge systems under one uniform IP regime raises issues about IPRs being a specific instance of a larger effort at intellectual and cultural domination.
‘Exclusion’ of Farmers’ Rights
Farmers’ Rights (FRs) include the right over resources and associated knowledge; the right to control, the right to decide the future of genetic resources, the rights to define the legal framework of property rights of these resources.19 The concept of FRs developed in the context of the extension of IPRs in agriculture. It was argued that two concerned international agreements, the UPOV 1991 agreement, which was set up to give crop plant breeders exclusive rights over the new “improved varieties” they develop, and the TRIPS agreement, disregard the traditional rights of indigenous and farming communities to their genetic resources and associated knowledge. They substantially broadened the gap between source materials and improved varieties in terms of value and ownership rights attached to them.20
Legal protection in the form of IPRs ensures that breeders receive adequate remuneration when they market the propagating material of those improved varieties.21 IP protection is introduced, through breeders’ rights, to new improved varieties, gene patents, genetically altered seeds and so on. This has implications for the manner in which farmers can save seeds of protected varieties, for seed prices, availability, food and livelihood security – not just for the way people practise agriculture but the spaces in which they thrive.
The extension of IPRs in agriculture was, to a large extent, also associated with the development of biotechnology and its extension to the field of agriculture. The use of biotechnology, especially in agriculture, is an extremely layered process with enormously diverse ramifications. It is so because it is a process which begins with industry but seeks to transform the basis of agriculture and alter the space that the beneficiaries occupy in the agricultural matrix. Issues of food security, livelihood rights, traditional knowledge rights, seed security all linked to issues of patent protected biotechnological innovations, emerge and devolve into rights claims, broadly covered under the rubric of FRs – claims which are restricted, diminished or excluded by the IPR regime.
Recent controversies surrounding use of transgenic techno logy for patenting reveal that the issues that have acquired centrality are chiefly two: first, ecological and food safety and second, socioeconomic concerns relating to increased dependence on novel technologies that may be controlled by external actors. In the global North, some of the main debates have revolved around issues of environmental impacts and food safety. In the South, where a majority of the population is engaged in agriculture, these aspects are raised in conjunction with the socio-economic impact of transgenic technology. IPRs in plant varieties become controversial because they directly confront the pre-existing systems of agricultural management that were mostly based on traditional knowledge, free exchange and public sector involvement. In the North, the farmers as stakeholders are numerically much smaller than their counterparts in the South. While the issue of FRs in the North raises the issue of rights within the framework of the “equal respect” principle, of like IPRs for farmers (of FRs as a counter to breeders’ rights, etc),22 the issues and debates around FRs in developing countries are located within the emerging conception of rights as human development.
As breeders, conservers and protectors of agricultural genetic resources for centuries, farmers never had any defined rights over their knowledge or the genetic resources that they held. Commercial breeding, fuelled by biotechnological innovations in agriculture, transformed these farmers from owners of their gene pool to donors who then received the commercially bred plant varieties
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and their seeds at a fee. In a developed country like the US, a farmer like McFarling23 loses his right to save seeds. In developing countries, like India, with sui generis protection, farmers may not lose the right to save seeds,24 but is threatened in innumerable other ways – local seed varieties disappear from the seed disbursing agencies, significantly higher prices are charged for patented, protected genetically modified (GM) varieties, GM seeds, developed and launched globally, may not be found suitable to local climate and soil conditions and so on. The BT cotton launch in the Vidarbha and Warangal districts is a case in point. The use of biotechnology and protection offered by the IP regimes to its products has, in critical ways, edged out the small farmers.
The inequitable relation between the owners of germplasm and the owners of technology spawned a debate at various international forums. The result was the institutionalisation of FRs in the form of two main instruments: the Food and Agricultural Organisation’s (FAO) 1983 document
terms of bargaining themselves are likely to be asymmetrical given legal access and knowledge that a common farmer has. In developing countries of the South, infringement of FRs may only be an indirect consequence of a system that does not promote the realisation of FRs. When FRs have been conceived and instituted more as a counter to breeders’ rights and less as developmental rights, designed to protect and enhance the domain of their rights to livelihood, food security, access to resources, etc, the terms of exclusion are implied in its conceptualisation. Stripped to their bare minimum, so that they do not run contrary to IPRs, FRs seldom have the teeth to counter the exclusionary premises of IPRs.
‘Exclusion‘ of Health Rights
Some 18 million human beings die prematurely each year from medical conditions.29 Hundreds of millions more suffer grievously from these conditions. The lives of additional hundreds of millions are shattered by severe ill
and the International Treaty on Plant Genetic Resources for Food and Agriculture (IT PGRFA)25 in November 2001. There have also been several attempts in different directions to develop operational d omestic guidelines and acts of legislation for the implementation of FRs. TRIPS allows for the development of a sui generis (unique to the system) scheme which will give countries free-
Table 1: Comparison of Retail Prices of Innovators Brands of Nine Essential Drugs and Their Generic Equivalents, July 2002
Drug Retail Prices Difference as Percentage of Generic Innovators Brand Branded Price to Retail Price
Amoxycillin 1.75 9.90 465
Cotrimoxazole 0.80 9.19 1,050
Diazepam 0.07 7.84 1,020
Diclofenac 0.58 24.70 4,160
Erythromycin 4.00 7.23 80
Furosemide 0.35 1.68 380
Propranolol 0.40 3.75 840
Ranitidine 1.64 13.98 750
nesses. It is in this context that the exclusion of health rights by the TRIPS regime has to be seen.
The TRIPS agreement has imposed worldwide a single regime for encouraging pharmaceutical innovation through monopoly patents. Pricing advanced medicines out of the reach of poor patients, this regime produces avoidable disease and death on a mas
dom to retain or devise their own sys-Source: K Bala “Towards Affordable and Quality Medicines to All sive scale. The regime has exacerbated
Sri Lankans”, compiled from Sales figures at the Rajaya Osu Sala,
tem of plant variety protection. Bambalapitiya, Sri Lanka.
However, by and large, FRs have been incorporated as customary rights arising from the practice of farmers during the past 10,000 years to reuse and exchange seeds from their harvests. Most of these treaties have dealt with the right of farmers to, (a) control seeds and propagate material they grow and (b) receive a fair and equitable share of the benefits arising from the commercial use of their genetic resources. There is no mention of property rights over farmers’ propagating material – a property right which entails an act of forbearance on part of other plant breeders. For instance, India’s Protection of Plant Varieties and Farmers’ Rights Act, 2001 does provide legal protection to the farmers within the narrow confines of a sui generis system permitted by Article 27.3b of the TRIPS. However, it only deals with plant variety management from the point of view of its commercialisation and fails to take into account the fact that commercial activity cannot be separated, either legally or in practice, from conservation of agricultural biodiversity and the rights of the farmers.26 The forms in which these rights are recognised, are residual rights like the right to use, exchange and sell farm-saved seeds.
Perhaps this is the reason why institutionalisation of FRs has not always protected the farmer. In India, the same act grants rights to both farmers and breeders, each having multiple claims over separate plant varieties, with these multiple claims having different ramifications.27 It poses problems of overlapping claims and result in complicated bargaining requirements for utilisation of varieties.28 It is often here that the lag between the rights available to the farmer and the ones accessed by him occurs. The
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the huge gap between the health needs
that confront people and the means that are available to satisfy them, especially in poorer nations.30
Rights like health are, to use Henry Shue’s term, “basic rights” of people – basic because they precondition the enjoyment of all other rights.31 The classification of health as a basic right is useful in order to qualify this right as vital to a minimally adequate existence and, in doing so, to justify the priority of this right over rights like IPRs which are more in the nature of economic rewards stimulating innovation and not, rights that precondition survival. The effects that IPRs generate for rights like health are significant, for the latter is linked to issues of survival and dignified, disability free existence. How they relate to each other, the way these rights are given content and are upheld juridically is always a subject of examination and concern.
IPRs, it is believed, constitute an incentive for research and innovation in general, as also for encouraging research by the pharmaceutical industry. Patents, in a way, constitute a precondition for the involvement of the private sector in the development and production of new medicines, given high research inputs and long gestation periods of RD. By obliging all governments to grant minimum 20-year patents, TRIPS shields pharmaceutical companies from generic competition globally. This results in higher prices for vital, new, medicines in rich and poor countries alike. The end result is that patented drugs are, usually, significantly more expensive than generic drugs (drugs not protected by patents). High prices of drugs becomes a primary and a necessary outcome of the patent regime.
SPECIAL ARTICLE
| Table 2: Price Differentials between Branded and Generic Drug Prices of ARVs | ramifications for drug access and consequently have enormous |
| FY04 FY05 | implications for access to health. Globally, life-saving drugs re- |
| Stocrin 600mg (30 TAB) 32.50 32.76 | main beyond the reach of the majority of people with HIV/AIDS. |
| Efavirenz 600mg (30 TAB)* n/a 23.30 Retrovir 300mg 21.67 34.78 Zidovudine 300mg* n/a 14.48 Zerit 15mg (60 CAP) 4.88 9.22 Stavudine 15mg (60 CAP)* n/a 5.18 | For instance, of the six million people worldwide who needed antiretrovirals (ARVs) in 2003, fewer than 8% were receiving them.38 Millions of people still cannot access existing vaccines, and drugs for tuberculosis, malaria, cancer, neglected diseases |
| Zerit 1mg/ml 10.73 8.71 | and many others. |
| Stavudine 1mg/ml* n/a 7.15 | What the patent regime does is to eliminate cheaper generic |
| Zerit 20mg (60 CAP) 6.36 5.99 | drugs from the market. Generics today have come to play a vital |
| Stavudine 20mg (60 CAP)* n/a 5.64 | role in public health agendas with the realisation that access can |
| Zerit 30mg (60 CAP) 6.48 6.20 | be affected at the practical level by the introduction of patents on |
| Stavudine 30mg (60 CAP)* n/a 3.83 | medicines. By excluding generics, essential-drug patents have |
| Zerit 40mg 6.60 6.14 | the potential to undermine access to medicines for HIV/AIDS, for |
| Stavudine 40mg* n/a 4.32 Viramune 10mg/ml 24.81 24.30 Nevirapine 10mg/ml* n/a 7.50 Viramune 200mg 50.23 59.86 Nevirapine 200mg* n/a 5.79 | heart disease, for diabetes, in fact for every new medicine needed by the poor in developing and poorer countries. In every case, generic prices present an opportunity for cost savings. A 2006 report from the (US) President’s Emergency Plan for AIDS Relief |
| Viramune 50mg/5ml 26.19 34.79 | (PEPFAR) states that in some cases, the branded price per pack of |
| Nevirapine 50mg/5ml* n/a 7.50 | a drug is up to 11 times the cost of the approved generic version.39 |
| Epivir 150mg 7.22 13.56 | The tables indicate price differentials of up to 4,160% in the case |
| Lamivudine 150mg* n/a 4.93 | of Diclofenac (drug to reduce inflammation and pain). |
| Epivir 10mg/ml 7.34 9.12 | The price differentials between the generics and patented |
| Lamivudine 10mg/ml* n/a 5.35 | drugs are instructive. They highlight the fact that absence of ge- |
| Combivir 300/150mg 24.87 24.23 | nerics might greatly restrict access to life saving and life sustain- |
| Zidovudine/Lamivudine 300/150mg* n/a 17.51 Generics have an asterisk. Mean Pack Price $ | ing drugs. Access rights are crucial for the realisation of health |
| Source: The President’s Emergency Plan for AIDS Relief (PEPFAR) Report on Antiretroviral Drugs for HIV/AIDS Treatment.40 | rights. Patents increase the threshold of accessibility and reduce the number of people who can afford them. Denial of access is de- |
| A second outcome is a market orientation of RD and market | nial of the right to health. TRIPS does not provide much guidance |
| ing of drugs. Because patents are the primary rewards that | concerning its links with other rights. Examples from South |
| p rovide research incentives it logically follows that the patent | Africa, Brazil, and more recently India (the Glivec patent claim |
| system would stimulate innovation only where industry sees the | by Novartis) indicate that TRIPS cannot be implemented in isola |
| opportunity for increasing sales and market share. This is one of | tion. There are a number of other international obligations, in |
| the prime reasons why there has been a significant growth in the | particular in the field of health as a human right which are of |
| research and development of lifestyle drugs,32 and why there has | prime importance. IPRs coexist with them with a great degree of |
| been a significant neglect of diseases of developing and least | unease and context dependent interpretations. |
| developed countries, broadly termed as neglected diseases.33 | |
| Troullier noted that 1,393 new medicines were launched globally | Conclusions |
| between 1975 and 1999, but only 16 were for tropical diseases, | The concern with understanding the exclusionary aspects of IPRs |
| 13 drugs (less than 1%) were for tropical infectious diseases | has been greatly influenced by an understanding that sees rights |
| and three for tuberculosis. Ten of these 13 drugs were developed | as social products that necessarily must have moral premises – |
| for veterinary or military purposes, leaving only three that were | their morality as derived from the purpose of according a politico |
| the result of genuine efforts to create drugs for neglected | legal status to the needs and wants of people who differ in their |
| diseases. This enormous discrepancy is captured by the notion | substantive conceptions of the good. |
| of the “10/90 gap”: 90% of the global disease burden attracts | There has taken place, in the last two or three decades, a pro |
| 10% of research investments.34 There is no indication that drug | found shift in the way rights are conceptualised and contested. |
| development for the most neglected diseases by pharmaceutical | The alignment of rights with needs and culture goes a long way |
| companies will significantly improve in the near future.35 | in defining the space and content of rights’ contestations and |
| While RD of new therapies against tropical diseases has ground | claims. Conditions of moral and cultural pluralism ought to be |
| to a standstill, about 14 million people die from infectious | met for rights to be consistent with the enterprise of liberal de |
| diseases each year, predominantly in developing countries.36 | mocracy. While there is a shared basis for universalism of rights |
| It implies that neglected diseases, which are areas of weak | (that rights should exist), there is also a shared perception that |
| monetary reward, remain outside the interest of patent-seeking | particular rights need to be located in the cultural and contextual |
| drug companies.37 | milieu of different societies. The danger of universal rights is that |
| The prohibitive prices of patented drugs and low availability of | it encourages the imposition of dominant ideals and standards on |
| efficacious drugs for neglected diseases, together have huge | other cultures, often through an implied cultural denigration and |
| 92 | august 1, 2009 vol xliv no 31 Economic Political Weekly |
EPWreplacement of local customary ways of being in the world. In t hemselves against issues of life, liberty or property, the fundathis imposition lie the roots of exclusion – exclusion of rights, of mental libertarian claims, or with issues of equity and human people, of economies, of cultures. Whether IPRs measure rights, they fail as moral claims.
Notes
1 W N Hohfeld (1919): “Fundamental Legal Conceptions”, Yale Law Journal. 2 Adam D Moore (2004), IP and Information Control (London: Transaction Publishers), 13.
3 Andrew J Galambos, The Theory of Volition, Vol 1, Reference from Evan R Soulé, Jr, “What Is Volitional Science?” http://www.tuspco.com/what_ is_v-50_.html accessed on 2 April 2009.
4 Adam D Moore (ed.) (1997), IP: Moral, Legal, and Intellectual Dilemmas (Oxford: Rowman Litllefield), Adam D Moore (2004), IP and Information Control (London: Transaction Press), Ayn Rand (1967), “Patents and Copy rights” in Capitalism: The Unknown Ideal (New York: New American Library), 133.
5 Edwin C Hettinger (1989), “Justifying IP”, Philosophy and Public Affairs, Vol 18, No 1 (winter). 6 Ibid 38.
7 Lawrence C Becker (1977), Property Rights, Philosophical Foundations (London: Routledge Kegan Paul), 39.
8 The term “traditional” used in describing this knowledge does not imply that this knowledge is old or untechnical in nature, but tradition based. It is “traditional” because it is created in a manner that reflects the traditions of the communities, therefore not relating to the nature of the knowledge itself, but to the way in which that knowledge is created, preserved and disseminated.
9 Exceptions like witchcraft, tantric skills, etc, do exist where the form of knowledge is closely held by a family or a very small group of individuals.
10 An important facet of traditional knowledge/ indigenous knowledge is that it exists in a symbiotic relationship with the ecology which sustains it. Perhaps that is the reason some theorists like Firket Berkes have preferred the usage of the term “traditional ecological knowledge”. Firket Berkes, “Traditional Ecological Knowledge in Perspective” in J T Inglis (ed.), (1993), Traditional Eco logical Knowledge: Concept and Cases (Ottawa: International Development Research Centre), 1-9.
11 Marcel Viergever (1999), “Indigenous Knowledge: an Interpretation of Views from Indigenous Peoples” in M Ladislaus Semali and Joe L Kincheloe (ed.), What Is Indigenous Knowledge? Voices from the Academy (New York and London: Falmer Press), 341.
12 Masa Iwanaga (1998), “In situ Conservation and the Development Process” in Debra I Jarvis and Toby Hodgkin (ed.), Strengthening the Scientific Basis of In situ Conservation of Agricultural Biodiversity On-Farm: Options for Data Collecting and Analysis. Proceedings of a workshop to develop tools and procedures for in situ conservation onfarm, 25-29 August 1997 (Rome: Italy: International Plant Genetic Resources Institute).
13 Jack Kloppenburg (ed.) (1988), Seeds and Sovereignty: The Use and Control of Plant Genetic Resources (London: Duke University Press), Jack Kloppenburg (1991), “Social Theory and the De/ Reconstruction of Agricultural Science: Local Knowledge for an Alternative Agriculture”, Rural Sociology 56(4): 519-48. Some agricultural research centres look at indigenous knowledge as a key component of sustainable agricultural practices; others have been in charge of researching and cataloguing existing indigenous knowledge. The Center for Indigenous Knowledge for Agriculture and Rural Development (CIKARD), established in 1987 at Iowa State University, is an example of this.
14 For a few cases of existing IP mechanisms, geographical indications, copyrights, trademarks and patents, that have been used to protect a few instances of traditional knowledge see the World Intellectual Property Organisation (WIPO) document WIPO: Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore. 2002, points no 9-12 on how. Available at http://www.wipo.int/edocs/mdocs/tk/en/wipo_ grtkf_ic_3/wipo_grtkf_ic_3_7.doc. Accessed on 10 January 2008.
15 Ibid 8-14. 16 Lawrence C Becker, Property Rights, Philosophical Foundations (London: RKP, 1977): 7. 17 Joel Feinberg (1992), “The Nature and Value of Rights” in Carlos Santiago Nino (ed.), Rights (New York: NYU Press), 194. 18 RAFI has been tracking US patent data bases for controversial ownership claims. In 1985 Pat Mooney of RAFI developed the concept of FRs as a counter weight to plant breeders’ rights. 19 Definition of FRs from the 1996 Intervention to the FAO/PGRFA by Via Campesina, an international movement coordinating peasant rights. Text on FRs available at http://www.ukabc.org/ Via_Camp.html, accessed on 10 January 2008. 20 See for instance, Jose Esquinas-Alcazar (1996), “The Realisation of Farmer’s Right” in M S Swaminathan (ed.), Agrobiodiversity and FRs (New Delhi: Konark). 21 Laurence R Helfer, IP Rights in Plant Varieties: International Legal Regimes and Policy Options for National Governments. For the Development Law Service, FAO Legal Office. FAO Corporate Document Repository. Section 1.2. Available at http:// www.fao.org/docrep/007/y5714e/y5714e02. htm#bm2.2, accessed on 10 January 2008. 22 Two prominent and representative cases in point are: Monsanto Company vs Homan McFarling, No 4:00 CV84 CDP (United States Court of Appeals for the Federal Circuit 2002), Monsanto Co vs Percy Schmeiser, Federal Court of Canada, 2004 1
S C R 902, 2004 SCC 34.
23 Ibid.
24 However this may not hold true when GURT (genetic use restriction technology), also referred to as the “terminator” seed technology, is adopted.
25 International Treaty on Plant Genetic Resources for Food and Agriculture Resolution 3/2001 ftp:// ftp.fao.org/ag/cgrfa/it/ITPGRe.pdf Accessed on 15 November 2007.
26 Phillippe Cullet and Radhika Koluru (2003), “Plant Variety Protection and FRs – Towards a Broader Understanding”, No 24, Delhi Law Review, 2002: 7.
27 India’s act allows four types of varieties to be registered reflecting the interests of actors: New Variety, Extant Variety, Essentially Derived Variety and Farmers’ Variety. For rights in them see the Plant Varieties Protection and Farmers’ Rights Act, 2001, Section 2.
28 For details of the argument see Anitha Ramanna (2003), “India’s Plant and FRs Legislation: Potential Impact on Stakeholder Access to G enetic Resources”, EPTD Discussion Paper No 96, Washington.
29 In 2002, there were 57 million human deaths. Among the main avoidable causes of death were (with death tolls in thousands): respiratory infections (3,963 mainly pneumonia), HIV/AIDS (2,777), perinatal conditions (2,462), diarrhoea (1,798), tuberculosis (1,566), malaria (1,272), childhood diseases (1,124 mainly measles), maternal conditions (510), malnutrition (485), sexually transmitted diseases (180), menengitis (173), hepatitis (157), and tropical diseases (129). See World Health Organisation (2004), World Health Report, annex Table 2, available at www.who.int/ whr/2004/annex/topic/en/annex_2_en.pdf.
30 The 10/90 gap is instructive in this regard. For d etails see, Global Forum for Health Research (2004):10/90 Report on Health Research 20032004. http://www.globalforumhealth.org/
Media-Publications/Publications/10-90-report
2003-2004 Accessed 13 May 2007.
31 A term used by Henry Shue to qualify these rights as entitlements to basic needs, i e, food, shelter, clothing, clean water, healthcare and minimal standards of education. Henry Shue (1996), Basic Rights: Subsistence, Affluence and US Foreign Policy (Princeton: Princeton University Press, second edition).
32 Consider this: Anti-baldness drugs generated $180 million in sales in 1998, the anti-wrinkle drug Botox earned $90 million in sales in 1997, and Viagra’s sales approached $800 million in its first year. One industry analyst projected that with more than $20 billion now being invested in developing drugs for lifestyle conditions, annual sales of lifestyle drugs will soon reach $11 billion. “Discretionary Drug Dollars”, Journal of Business Strategy Publication, 1 July 2002. http://www. accessmylibrary. com/coms2/ summary _028625645998_ITM. Accessed 26 June 2007.
33 A recent study by the (Drugs for Neglected Diseases) DNDi working group and the Harvard School of Public Health questioned the world’s top 20 pharmaceutical companies on their RD activities for malaria, tuberculosis, African trypanosomiasis, Chagas disease and leishmaniasis (5 of the 13 neglected diseases listed by the WHO). Eleven companies responded, representing 29% of the worldwide pharmaceutical market for 2002. Of these companies, seven reported spending less than 1% of their RD budget over the previous year on any of those five diseases, and eight spent nothing on the most neglected diseases (African trypanosomiasis, Chagas’ disease and leishmaniasis). None of the responding companies has brought a drug to market in the last five years for any of the most neglected diseases included in the survey. P Trouiller et al (2002), “Drug Development for Neglected Disea ses: A Deficient Market and a P ublic-Health Policy Failure”, Lancet, 359: 2188-2194; Also see, Report by the Secretariat, IP Rights, Innovation and Public Health. WHO, 56th WHO Assembly A56/17, 12 May 2003.
34 Global Forum for Health Research (2002), The 10/90 Report on Health Research 2001-2002 (Geneva). http://www.globalforumhealth.org/MediaPublications/Publications/10-90-Report-on HealthResearch-2001-2002. Accessed on 21 April 2007.
35 Von Christian Burri (2004), “High Time to Take Action: Research on Neglected Diseases”, Bulletin von Medicus Mundi Schweiz Nr 92 (April), available at http://www. medicusmundi. ch/mms/ services/bulletin/bulletin200401/kap01/8burri. html. Visited 3 September 2007.
36 P Trouiller et al (2002), “Drug Development for Neglected Diseases: A Deficient Market and a Public-Health Policy Failure”, Lancet, 359, 2188-94.
37 J Gilbert, P Henske and A Singh (2003), “Rebuilding Big Pharma’s Business Model” in Vivo: The Business and Medicine Report, 21:73.
38 K Attawell and J Mundy (2003), “Provision of Antiretroviral Therapy in Resource-Limited Settings: A Review of Experience up to August 2003”, Health Systems Resource Centre (London: Department for International Development), available at: http://www.who.int/3by5/publications/documents/en/ARTpaper_ DFID_WHO.pdf. Accessed 4 April 2005.
39 The United States President’s Emergency Plan for AIDS Relief [PEPSAR] (2006), “Bringing Hope: Supplying ARVs for HIV/AIDS treatment”, May.
40 Available at http://www.state.gov/documents/ organisations /66513.pdf (Accessed 3 September 2007). Also available in this report are data and figures on the increasing role that generics have come to play in providing access to ARV drugs in LDCs and developing countries.
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