The world power now uses the IPR treaty to force these countries to pay its companies if they want to eat food grain anymore. This is no silly Hollywood B movie. This is TRIPS for you and if you think paying American companies royalty for the privilege of eating rice in India is a fantastic notion, Google for the RiceTec case. I am not here to engage in US bashing. I am merely demonstrating to you that at a very basic level, there is something deeply immoral about the idea that elements of nature, or indeed knowledge itself, can be 'owned'.
It really comes down to what we believe can be 'owned' by an individual. We are accustomed to the idea that land can be privately owned. One hundred years ago, this was certainly not so for the forest dwelling people of Madhya Pradesh. In this, they were not alone.
Native Americans found the idea outrageous. How can anyone 'own' the earth, the sky, the rivers, the birds, the beasts? They could not understand how they could be forced to 'keep off the white man's land'. It wasn't because they were tribal nomads. South Africans have no trouble with the idea that entire savannah grasslands, and the lions that live on it, can be privately owned. Not so Indians.
Can a company own the tigers of Corbett National Park? Indians still cannot accept that rivers can be privately owned. You couldn't sell the Narmada if you wanted to. If you think about it, what can or cannot be owned is a perfectly arbitrary ideological construct. There is nothing obvious about the idea of IPR.
Naturally, not all manner of IPRs raise this issue in quite the same way. Since I don't have a book to write here, I will confine myself to Patents. The US Supreme Court, for instance, has ruled that only three subjects are not patentable: laws of nature, natural phenomenon and abstract ideas. That does not prevent you from patenting a Liger if you can get a lion to love a tiger. Don't laugh. Ligers only exist in captivity but there are mules in this world. If the Americans had been around when they first showed up, the Indian Army would be paying the Americans royalty to haul up supplies to Siachen.
Part of the problem is the way IPR laws operate. Most of us men of business see ownership of land as a store of value, and if we are wise, a revenue stream. The difference between us and the forest dweller is not that they don't have 'income' from land. The difference is that we believe we can prevent others from using land we own without paying us for the privilege. It's the same with knowledge. Knowledge brings revenue but there is nothing 'natural' about recognising the right to prevent others from using that same knowledge for free.
When you set up a system of exclusive ownership, the heart of the moral issue general revolves around who you exclude. When open pasture lands were sealed off under new English law in the early 1700s as part of the Enclosure Movement, those engaged in agriculture appropriated the right to economically exploit land to the exclusion of herders, thus impoverishing them. When the British established the Indian Forests Act, they suppressed the community rights of those who lived in or around the forests and cut off their resources. The extent to which any society supports IPR determines the extent to which certain excluded classes are impoverished, and forced to pay for things that were formerly freely available to them. IPR is a kind of expropriation, however you look at it. How do you justify that?
Generally speaking, IPR is defended most often on the basis that it promotes human welfare through economic advancement. We view IPR from the prism of their economic outcomes. Is protecting IPR more economically efficient? Will it bring better and faster innovation? Will the profits from this round of innovations more efficiently fund the next round of innovations? In making these economic calculations, we do not concern ourselves with the morality of appropriating knowledge in the first place. That is the heart of the moral issue around ownership of IPR. The results sometimes can be very disturbing. Let's take some examples.
The first world has been very quick to grant agriculture patents to food companies engaged in the genetic engineering of new varieties of food. These companies have forced farmers to buy seeds from them year after year, preventing them from using part of the produce of the previous year as seed for this year, even though they have last year's produce (which is much cheaper) sitting in their store.
This has delivered control of the food chain to food companies, increasing the food insecurity of those who engage in small scale farming and cannot afford to buy these high priced seeds. In turn, small scale farmers have been compelled to use lower yielding seeds, increasing their per unit cost of production squeezing them out of the market and into a cycle of subsistence production. The immorality of the situation is grounded in the fact that these seeds were not created from thin air. Agricultural companies took seeds that occur in nature, seeds in which all farmers have a collective community right, and then genetically modified them to yield more, or be more disease resistant. Over a period of time, because of the increased profits, the original 'naturally occurring' seeds disappear from stock leaving only the GM seeds behind. In this way, nature's gift comes under exclusive private ownership. Thus are community rights converted to individual rights to the exclusion of the very community that owned those seeds.
This problem has now become much bigger than GM foods and threatens many common cultural rights. Indian grandmothers have a motherlode of home remedies passed down from generation to generation: turmeric as skin conditioner, neem as insect repellent, cloves as analgesic, and so forth. The law as it stands today allows innovators to modify these substances, or add them to others to create a cocktail which they can then claim as new and therefore protectable IPR. What belongs to everyone does not of course belong to anyone so a movement to combat this appropriation is always weak. We are witnessing a phenomenon where common knowledge is being progressively appropriated by companies. The larger problem though is that legal procedures prescribed to fight off such attacks have two built in biases: (a) those without a generous budget are shut out of the redressal system, and (b) the conceptual framework of what is good 'evidence' to 'prove' the existence of prior traditional knowledge is heavily located in a paradigm foreign to indigenous communities. In this paradigm, knowledge is only knowledge if it exists in a journal or a database or is otherwise recorded somewhere. You goose is cooked if your grand mum didn't go to school or faithfully publish her remedies in Good Housewife when she had the chance.
This moral hazard becomes particularly prickly when we deal with health-related issues. Let us assume that a devastating epidemic hits the globe. It is found that a patented drug is capable of combating the disease but costs a very great deal of money. Should we allow the patent holder to earn super profits as the formulation flies off the shelf and into the blood stream of wealthy sufferers, even as millions die because they haven't the price of the remedy? Whose welfare are we talking about here: the rich, the unwashed millions or the corporate shareholders of pharma companies? You could argue the Social Darwinism case. You could argue that even if 20 per cent of humanity die, the other 80 per cent who could afford the drug profit from the pro-research incentive regime we have because it will guarantee that another drug will be available when the next epidemic comes around. But is it really just a numbers game? Are the poor what they are because they are too dumb to do better? Or is it all about access to education and training?
At the end of the day, it comes down to a simple question: Does everyone have fundamental rights, or is there some sort of financial caste system in place by which, the variety of rights we can claim depends on our purchasing power? Are all human beings entitled to basic food, healthcare, dignity and respect? Or do we need to buy these basic rights? There are no simple answers here because in life, nothing is free: someone somewhere always pays the bill. What makes the IPR issue particularly prickly is the idea that someone didn't lose his life because no one wanted to foot a medical bill; he lost his life because someone else needed to turn a higher corporate profit a great deal more than he needed to live.
The author is Managing Partner of the Gurgaon-based corporate law firm N South. His bestselling expose' of the real world of Indian courts "Legal Confidential", released in November 2015.
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