Microsoft word - public vs[1]. private final- atula.doc

Public vs. Private: TRIPs and its Implications for
the Third World
Atula Samarakoon
October 2007
Position Paper 1
IGD Project
SPARC, Faculty of Arts
University of Colombo
Introduction
This essay intends to shed some lights on the debate over the public-private ownership in the context of an emerging universal trade related legislative and legal mechanism. A better example for such a regulatory system with a universal presence would be the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) initiated under the auspices of the World Trade Organization (WTO) in the mid 1990s. The changing scenario of the world political-economy and its impact on the poverty stricken regions can be critically viewed in a sort of deconstructive reading of the TRIPs agreement. The concept of globalization, the diminishing character of the welfare state and the commoditization of the basic vital resources such as water and HIV/AIDS drugs can all be encapsulated in a text that narrates on the latest trade regime and its norms that manifests in the guise of benign treaties like TRIPs. The TRIPs agreement has accumulated a plethora of pessimistic criticisms from world over for its disguised nature and ambiguity. This narrative would make the TRIPs agreement the focal point in rereading the conception of the private and public ownership. Also the study of intellectual property rights is primarily intended to rethink the private and public partnership, the privatization of state assets, public services (Public health and Aids Drugs) and the fate of the welfare state in the context of increasing globalization. The essay will first look into the world economic and political context in which the TRIPs agreement emerged and then move on to read TRIPs and its powers on patent. The discussion of the TRIPs agreement will include the critiques of it from the global North and South. Further the discussion will attempt to measure the impact of TRIPs on the sovereignty of the state, the public domain, commons, and some basic vital services. It should be noted that the essay does not necessarily follow a clear order of sub-topics but the whole discussion revolves around the central argument that the introduction of universal regulations on the trade related intellectual property have largely contributed to the fast disappearance of the public domain and the increasing dominance of the private ownership of the global resources Nation-state besieged by techno capitalism (or globalization)
With the collapse of the Soviet bloc in the early 1989 the pace of the techno- capitalist project increased by and large while the privatization –‘the transfer of public assets, infrastructure, and service function to the private sector’ (Hanke 1985:101) - seemingly became the precondition for capital to penetrate the nation-state. The free flow of capital winged by information technology was predicted to be creating a seamless web of global activity. From the point of view of economic determinism this is a force strengthening the dominance of the world capitalist economic system. In view of the fast-paced plot of an international economy the diminishing role of the nation-state is increasingly discussed among academics, politicians and ordinary people as well. As globalization became the buzz word after 1990, private ownership was contextualized by some scholars within the hegemonized ideology of a neo-liberal agenda executed by an international capitalist class represented by the leading TNCs and the international financial and economic treaties and institutions ( Petras and Veltmeyer: 2001).The historical and structural circumstances had determined the emergence of globalization in the past but as an economic strategy its origin points to the ‘consequences of an ideological project’ within a political framework created by the state in terms of deregulation in overseas flows and elimination of welfare state. The nation state seems to operate as the appointee of the international financial institutions and therefore in terms of sovereignty it seems to undergo a transformation because it is inclined to locally present the international legislative reforms of the IMF, WB and WTO, and TNCs - all these constitute an agency for international legislation- on the private and corporatist ownership (Evans 2005). The TRIPS agreement was designed with the increasing influence and the intervention of this global capitalist class and its institutional representation. In an attempt to reformulate the ideological hegemony of the globalist conceptions of globalization some scholars view it as a class phenomenon or an imperialist project (Petras and Veltmeyer 2001, Callinicos 2003). The ‘corporate rule making’ has eroded the state ability to exist as the central actor in the political and economic sphere. In fact it is made to be bound to implement the corporate-led international legislative and legalistic scheme within its own boundary. Salient features of TRIPs
The Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPs; 1994) is one of the three pillars of the World Trade Organization (WTO), other two being the agreements on goods and services. The agreement has three dimensions; first it sets high standards for the protection of Intellectual Property (IP), second it contains procedural guidelines for its actual implementation and third there is the dispute settlement procedure for the WTO member countries. It is said that Intellectual property rights have been brought to ‘an international approximation of legislation’ on their protection under a global economy (German Development Institute, Briefing paper 2001) by the TRIPS. The WTO within the scope of the TRIPS attempts to bring most important spheres of intellectual property; patents, copy right protection, trade marks ,geographical indications, industrial designs, lay-out designs of integrated circuits and undisclosed information. The agreement seems to place much emphasis on the protection of intellectual property and less limits on such protection. In an effort to a realization of the retreat and the decline of the welfare state a critical reading of the text of the TRIPS agreement would be of much importance in the present context of increasing economic, political and cultural globalization. Diverse criticisms of the TRIPs help construct a basic hypothetical view highlighting the corporate- led current economic phase of capitalism (Porta, de-Slanes,Shleifer 1999) that has polarized the world between an international capitalist class and a disadvantaged majority . Critiques on TRIPs
The impact of the TRIPS can be discussed from several dimensions, namely economic, socio-political, legal and fundamental rights. Also criticisms of the TRIPS have been leveled from several perspectives, for instance the global North views the agreement not as a result of democratic negotiations between the larger public and the commercial interests, or between industrialized countries and the Third World. For them it is the ‘imposition of values and interests of Northern MNCs on the diverse societies and cultures of the world’ (Shiva 2004). The debate over the TRIPS needs to be looked at from a critical third world point of view and a Human Rights perspective so as to circumvent the optimism of the neo-liberal critiques. There is an extensive body of literature on TRIPS which is written from legal or economic perspectives (Evans 2003). The first political scientist to present a comprehensive analysis was Susan K. Sell in Private Power; Public Law: the Globalization of Intellectual Property Rights (2003). In addition, as Evans shows, Christopher May (A global Economy of Intellectual Property Rights 2000) and Michael Ryan (Knowledge Diplomacy 1998) explore the problematic nature of the global justification for the global protection of the Intellectual Property and the continuity of the second stage in the process of trade liberalization with the The emergence of the TRIPS at the conclusion of the Uruguay Round of Multilateral Trade Negotiations raise two initial questions as suggested by Sell; “How did a group of private actors succeed in establishing a comprehensive framework of rules for the global protection of Intellectual Property” (IP) and “What sort of factors determined the success of the enterprise as an international legislative mechanism?” (Evans 2005:70). In her analysis of the knowledge based transnational corporations she brings in the argument that corporatist class is armed with “a structure, resource base, and a planning horizon approaching that of governments” (Evans 2005:70). Seemingly, this capability of them results in a global project of promoting the globalization of IP implemented through supranational institutions. Moreover the power of the World Intellectual Property Committee (WIPO) penetrates into the nation-state’s impenetrable shell of sovereignty making them incapacitated to make locally viable decision on their rights of patents or copyrights of IP. The case of “Indian Patent Protection” reflects the impact of the IP law on the generic drug industry of the country. The pharmaceutical MNCs of US needs India to patent her medicines because the failure to do so will provide the chance for the global pharmaceutical agencies to claim the rights of patents on rich diversity of indigenous medicines and their related products. The MNCs fight for the removal of all the “limits on the patentability” that in turn enable them to pirate indigenous knowledge and attempt to claim patents on “nature’s processes and indigenous knowledge as inventions” (Shiva 2004). The Western critique of the TRIPS mainly looks into the problems of the syntax in the text of the TRIPs and the lack of institutional mechanism for the enforcement and implementation of the agreement in a strong manner. For instance they may point at the vague terminology, its ineffectiveness in curtailing anti-competitive practices and etc. In an attempt to link the internationalization of the IPRs, the TRIPS agreement and collective interests as they relate to the European pharmaceutical industry Meir Perez Pugatch in International Political economy and the Intellectual Property Rights argues ( Pugatch 2004 quoted from Gregson 2005) that contrary to the downgrading attitude of the developing and least developed countries on the IPRs the EU pharmaceutical industry and its allies had premeditated their position and showed a high-level of consensus and alignment with EU policy-makers during the formulation of the TRIPS agreement (Pugatch 2004).Thus it is evident that position and strategy of the Northern countries had been to bind the third world to an internationally viable body of laws that in turn would be beneficial for those with technological know –how. The book International Political economy and the Intellectual Property Rights in fact bases its critique on a European point of view and laments the fact that the WTO has not taken enough measures for the implementation and enforcement of TRIPS. Further it explains that the terms of IPR protection are significantly advantageous to developed countries and the pharmaceutical industry in particular and assumed by their very nature to be detrimental to Trading in death
As is shown by many critics the patents have a direct impact on public health. The big pharmaceutical companies create a monopoly over essential medicines through patents and this collective action among pharmaceutical industries will restrain the third world attempt to downgrade the IPRs. The impact of the TRIPs on essential medications such as life saving drugs for AIDS patients has been much debated. The patent law can be applied to a wide variety of drugs developed and manufactured by pharmaceutical companies but the TRIPs has not clearly differentiated between the patents for non-essential and essential drugs. For instance the critics have shown that the agreement tend to recognize patents for the HIV/AIDS drugs and Viagra in the same capacity. However the third world AIDS patients have been deprived of their fundamental right to a standard of living adequate for health and well-being by not giving concessions for such essential medications. Junaid Subhan suggesting some recommendations for the TRIPs says that “by creating separate categories of drugs, the TRIPS Agreement can more properly balance IP protection of drugs with their purpose of healing as many of the ills as possible” (Subhan 2006). In criticizing the Agreement Norm Chomsky says that “there is nothing liberal about it. It is a highly protected system, designed to ensure that private tyrannies, which is what corporations are, monopolize the technology and the knowledge of the future” (Subhan 2006). His criticism indeed is against the very existence of the agreement itself and reveals the inhuman nature of capitalism that maximizes profit even in death. Sovereignty and traditional knowledge
The TRIPS has also been seen as a force that erodes state sovereignty. This thesis is much prevalent among the anti-globalists with a state centric view of the international system. It has been argued that the TRIPS agreement’s scope of patentable material could affect the rights of the state accorded by other Treaties. For instance the Convention on Biological Diversity (CBD) and the TRIPS has been viewed to possess mutually conflicting rights that in turn will be a threat on the sovereign power of the state when it comes to deal with its biological diversity (IISD Trade and development Brief 2003). However countries like China and India being signatories to the WTO and TRIPs have been careful enough to think of the pernicious IP laws. The West has accused China of pirated products and counterfeit but Chinese attitude in implementation of the IP laws envisions that the fencing of knowledge-related products should not deprive the whole society of benefits from them. Thus China has exempted the copyrighted products from the law while India has freed medicines from the IP laws saving the poor masses from expensive drugs. As Vandana Shiva points out Indian drugs have remained the cheapest because they are not governed by the IP laws. The response of the Asian giants to the IP laws uncovers the “Achchilles’ heel of the TRIPs” i.e. its enforcement aspect. The international norms of the IP have proved costly for the global south as they have to bear the rising prices of the knowledge intensive products and impediment of technological progress. The developing and least developed countries often seem to follow the dictates of the international financial institutions and the legislative bodies. There are numerous cases in those countries in which the patents are issued to the MNCs on indigenous medicines and other resources by the highly corrupt ruling bodies. Then it seems that the dissemination of the knowledge related to the IP laws is vital in the first place for creating awareness for action. The critics of TRIPS also recognize its impact on traditional knowledge. The Article 8(j) of the Convention on Biological Diversity (CBD) requires the parties to “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity”. How ever it is undeniable that the TRIPS has not paid due attention to the protection of traditional knowledge of the third world but it has offered unprecedented protection to formal innovation. The traditional Indian farmers or the ‘Bushmen’ might have used a medicinal plant or a seed variety for generations but the patent on this product might go to the MNCs who assert the claim on the rights of those varieties. This indeed is called the bio-piracy and the TRIPS in some respects have contributed for it. The ambiguity of the terms “discoveries” and “inventions” used in defining a new product clearly visualize the Western interest that aim at the third world biodiversity and traditional knowledge of the medicines and the seeds. In Whose Trade Organization? Corporate Globalization and the Erosion of Democracy, Wallach and Sforya argue that the cultural knowledge generated by distinct communities over generations has been regarded as free and give exclusive economic rights (through patents) to MNCs that derivatively improve it for the market purposes (Bollier 2002). Some critics of TRIPS such as RAFI, Global Trade Watch, and the Multi National Monitor argue that the MNCs are “simply crafting international law to legalize the theft of commonly owned cultural and biological property” (Bollier 2000:81). The problematic of the commonly inherited knowledge, art and culture that comprise the public domain can also be discussed in an analysis of the TRIPS. The IPR Law has been utilized to enclose the public domain, says David Bollier. Professor David Lange sees that the public domain has always been something of “a dark star in the constellation of intellectual property” (Bollier 2000:122). He argues, as Bollier shows, “that the copyright law with its greater reverence for individual “originality”, the basis on which property rights are granted, has neglected the public domain. The copyright industry of books, news media, music, film, information etc. consider them to be original work that deserve the property rights and the public domain is seen as a limitless resource left to take care of itself” (2000:122). The copy rights law in USA and several other countries has constrained the public’s access to the great cultural heritage of the literature, art, music, films and etc. The copyrighted works earn several millions of dollars and they are banned to enter the public domain. The danger of this is that it restrains the public domain via the claim of proprietary control of public facts and words that result in the elimination of creativity and discussion which is the whole mark of societal well-being. Public vs. Private – Commodification of Public Services
It is understood that there are certain aspects in any economic system which are never or rarely left to be cared by the free market. History tells us that the Romans had believed that some forms of property, by their very nature, should not be privately owned. Drawing upon the Roman tradition the American Courts have also identified some forms of public property including natural resources, roads, and navigable waters. The idea of this is that throughout the history humans have respected the notion of public property or services which today have become a problematic under capitalist globalization. The problem of essential public services deserves much discussion as the changing character of the public ownership under the aegis of liberalization programs or the international legislations such s TRIPS has impacted upon the life of the ordinary masses. In case of some essential services such as primary education, basic health, roads, electric power, and water supply the compulsory involvement of the public sector needs to be highlighted. Several critics have argued for the retention of the public enterprise on grounds that private venture into the public sphere has not brought the desired results. In “Market forces vs. Public Control of Basic Vital Services” Kulathuramaiyer and Maurer explore ‘the responsibility of governments in combination with the role of market forces in shaping the provision and delivery of public services’. Among the vital public services they mention are water, electricity, natural resources, education, telephone, mobile phones and internet and web search. According to them, the access to resources such as water, energy, healthcare, and natural heritage should be recognized as a right of every citizen. Moreover the paper has highlighted the importance of state – intervention and responsibility in securing the public with the essential needs and expects the governments to bring sound policies and regulations in realizing this. From an ecological perspective some critics have warned of the privatization of water resources. They have shown that the idea of a global market for water comes with benign or even humanitarian cover-ups. The commodified water is sold according to the logic of the market that “blithely ignores the real necessity or the imperatives of nature” (Bollier 2002). The commodification of the public services and property thus has further expanded the space of the affluent classes, business and cities to buy what they want while the large masses would be left without water, education etc. In Blue Gold: The Global Water Crisis and the Commodification of the World’s Water Supply Maude Barlow cites the words of the vice President of the World Bank delivering a speech at International forum on Globalization in 1999 in Sanfrancisco. According to him, “the public should be given a voice in deciding whether an overseas-based transnational corporation whose primary interests is profit maximization, should control those critical resources. Water is life- giving scarce resource which therefore must remain in the hands of the community through public sector delivery. Water must not be provided for profit, but to meet needs” (quoted from Bollier 2002). This statement by an official of the World Bank implies that not only the water but several other essential public services merit to be judged by the public on whether they should be delivered as commodities by the private sector or not. Concluding Remarks
The picture of the world political economy in the panoply of the Globalization’s privatization mantra was a rather different story some fifty years ago. Then the economists were quick to favor government ownership of firms when the monopoly of the private industries was recognized to be not in the favor of the larger public. The latest phase of globalization after the collapse of the Socialist bloc in the early 1990s has, as suggested through this discussion, expedited the process of erasure of conventional notions of welfare state, public services and private ownership of the “commons” and the public assets. The supranational bodies that provides legislation and control the politics of the world economy today has held sway in deciding the fate of the lager public complying only with the logic of capital. The TRIPS agreement, as the extensive literature on it displays, is one of the instrumental and institutional aspects for the justification of the “future” of the production industries which is completely going to be dependent upon knowledge and technical know –how. The knowledgeable and technological Center and the resourceful periphery have once again been tied in a relationship of exploiter and exploited. In a way it is the neo-colonization of the third world with the civilized means of law and order that is taking place today. The neo- Marxian interpretation of globalization as a project of imperialist powers uncovers the shady sides of the international system in an economic deterministic view. A comprehensive study of globalization should also probe into restructuring of the capitalist system through technology and other institutional and legislative instruments. The TRIPS initiated by the WTO is one such attempt by the global north to take possession of the global natural and intellectual properties. The nation state is today besieged by the dilemma of protecting its own sovereign rights over local resources while confronting the ‘monster’ of the market economy that has crawled into each and every apparatus of state. The response to the IP laws from the global south has not matured into a vibrant political slogan against the global north’s enforcement of such regimes on them. India and China have been exceptions as they have taken some preventive mechanisms for the benefits of the larger public and small entrepreneurs. The creation of advanced awareness among the public on the IP laws and their own resources is only a one step toward awakening the local rulers and the international The globalization of economy has brought no panacea to the global economic crisis which has resulted from the over consumption of limited resources of the world by a very few percent of its population based in the global North. In an analysis of globalization through an “interpretative strategy that mixes a deconstructive analysis and an empirico-materialist accounting” Victor Li in “What is in a name? Questioning Globalization” examines that there is a ‘greater disparity between the material reality and rhetoric of globalization’. He suggests, as he questions the ontologizing uses of globalization, that we should look at the world with new ways and “forget the globalization” (Li 2000). In the same way the meaning of the agreements such as TRIPS should be subject to double “interpretations”, to adopt a Derridian strategy of examining the “plagues of the new world order, and it would uncover the gap between the ideal and the ‘sorry empirical realities of the world’. Many critics of the agreement have suggested that the TRIPS would be a burden on the third world. Vandana Shiva has clearly shown that “knowledge monopolies linked to patents” could bar the poor access to health care, both indigenous health systems as well as through medicines. Taking the same argumentative further several other critics have shown that the neoliberal agenda of globalization has resulted in the decline of the welfare state and loss of public domain and essential services and thus created an illiberal regime of market forces deciding the fate of References:
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