Search the archive.

2 THEORETICAL BACKGROUND AND LITERATURE REVIEW 2.1 Linkages between judicial efficiency and economic activity A large strand of the literature provides empirical evidence of a strong positive relationship between judicial efficiency and various aspects of economic performance, such as firm size, foreign direct investments, investment and credit supply, which, in turn, support economic growth. The first pillar of the literature examines the relationship between the efficiency and quality of judicial systems with the firms' size and productivity. In general, an increase in the average size of firms implies productivity gains for the economy, fostering growth dynamics through the enhancement of scale economies. According to Lorizio and Gurrieri (2014), an inefficient judicial system may have adverse effects on several areas of businesses' performance, hampering employment decisions (through failures in the enforcement of the employment legislation) and investment plans (through failures in the contract enforcement) affecting negatively firms' size. Kumar et al. (2001) corroborate a positive relationship between the judicial efficiency and the average firm size, especially for the lower capital-intensive firms. Beck et al. (2006) provide evidence of a positive relationship between the protection of property rights and the firms' size. Chakraborty (2016), using data for Indian manufacturing, provides evidence that judicial quality is positively related to businesses' performance. Chemin (2020) suggests that judicial reforms financed by foreign aid agencies have positive effects on firms' perceptions about judicial efficiency, leading to significant gains in firms' productivity. Several country-specific studies confirm the positive implications of a well-functional justice system to the firm size. Laeven and Woodruff (2007) find that the Mexican states with more efficient legal systems exhibit larger firms, mainly through a lower idiosyncratic risk faced by entrepreneurs, facilitating the smooth completion of their investment plans. García-Posada and Mora-Sanguinetti (2013) confirm this positive relationship between firm size and judicial efficiency in Spain. Giacomelli and Menon (2013) show that a reduction in trial length leads to an increase in the average Italian firm size. Ippoliti et al. (2015) find that judicial efficiency lowers market uncertainty and supports entrepreneurship. A second pillar of the related literature focuses on the effect of judicial efficiency on foreign direct investment (FDI). Foreign equity financing via FDI inflows is considered one of the major sources of capital inflows, fostering growth perspectives through the acceleration of technological progress and the adoption of innovative production techniques. Benassy-Quere et al. (2007) examine the role of institutions in the host and the source country of FDI flows for OECD countries, providing evidence that more efficient protection of civil and property rights, among others, tend to increase FDI inflows. Lorenzani and Lucidi (2014) suggest that improvements in judicial efficiency may profoundly affect business activity and FDI. Comi et al. (2019) and Tag (2021) provide evidence of a positive relationship between judicial efficiency and attractiveness to FDI in Italian municipalities and in developing economies, respectively. The third pillar of the related empirical literature is oriented toward the effects of inefficient justice systems on credit provision. Borrowing restrictions and increases in the cost of lending due to inefficiencies of justice undermine growth perspectives. As Djankov et al. (2008) point out, debt financing is a crucial determinant of economic performance, allowing businesses to finance their investment plans and households to underpin their consumption expenditure. La Porta et al. (1997) find that the legal environment has positive effects on capital markets across countries. Levine (1998) provides evidence that countries with legal codes that protect creditors' rights, highly dependent on the legal origin, are characterized by more developed banking systems. Chemin (2009) examines the effect of the speed of decision-making in judicial system upon several aspects of economic activity in India, such as loans' market and agricultural and manufacturing production. Laeven and Majnoni (2003) suggest that efficiency-enhancing judicial reforms achieve better enforcement of contracts, decrease interest rate spreads across countries, and the cost of borrowing, facilitating the attraction of new investment. Djankov et al. (2008) show that more efficient debt enforcement of contracts is associated with improvements in debt markets, as measured by the ratio of private credit to GDP, as well as that the legal origin plays a crucial role in the efficiency level of debt enforcement. Bae and Goyal (2009) provide evidence that weak contract enforcement is related to compressed loan provision and elevated interest rates. Several studies confirm the negative consequences of inefficient judicial systems on debt financing at a country level (e.g., Jappelli et al., 2005, for Italy and Fabbri, 2010, for Spain). To recapitulate, judicial efficiency plays a crucial role in strengthening economic growth through the attraction of fresh investment, the upholding of the firm growth and productivity gains and the finance of businesses activity through credit. However, there are also several fundamentals that shape the relationship between efficiency and growth. These conditions that determine the magnitude of the effect of judicial efficiency on economic growth are discussed in the following section.

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 157-161. LJS

Processes of exclusion need to be understood as a separate strategic power exercise of the IP system, as shown in the previous chapter. This chapter argues that the IP system exercises power not only by bestowing exclusive rights on the IP holder, but also by operating in relative isolation on the international level. The continuing international division between IP on information derived from human genetic materials and the places of source of this material highlights IP’s exclusionary role in its starkest terms. On the basis of this realisation, the chapter then explores strategies challenging IP’s institutional isolation on the international level within an emerging frame of reference centred on life, which requires new legitimations from the previously entirely separate IP system. These responses are better understood as instances of governing. This thesis’ analytical perspective on IP as an emerging tactics of governing highlights how IP’s exclusivity is beginning to be contested in debates about IP and health, and IP and human rights, held within pro-IP international organisations such as the WTO and WIPO. The IP system continues to fulfil its economic role, however, this now needs to accommodate demands made on the basis of life and health, leading to a process of accommodation in which IP begins to act as a tactics of governing between life and the market. 1.1. Deriving exclusive rights from international bioprospecting and biobanking projects The relation between IP and genetic conceptions of life on the international level has been marked by several highly controversial instances of “bioprospecting” (Robinson 2010, 11) in developing countries followed by registration of gene patents on the gathered ‘materials’ in industrialised countries. Most notable amongst these was the Human Genome Diversity Project (HGDP)82, which collected a diverse range of genetic samples from different distinct peoples across the world, and gave rise to allegations of racism and ‘biocolonialism’. Indigenous peoples referred to it as the “Vampire Project” and strongly criticised the range of chosen donor populations and the patents derived from the samples later on (see Thacker 2005a, 134). An unrelated patent application on a leukaemia-resistant human T-cell line derived from a Papua New Guinean, filed by the US Department of Health and Human Services and the National Institutes of Health in 1993 (Oriola 2007, 6; Thacker 2005a, 134) was also heavily criticised for the cursory way in which it dealt with the original donor. These issues were addressed in the later Human Genome Project (HGP) in a dedicated ‘ELSI’ (Ethical, Legal and Social Implications) programme, entirely funded as part of the larger project itself. This programme focused in particular on the question of informed consent. IP is usually not included in such formal considerations of bioethics beyond the question of informed consent. The HGP proved less controversial due to the ELSI programme and the project’s less racially charged connotations, however, further controversies arose when an Australian pharmaceutical company named Autogen attempted to create a biobank containing blood samples and DNA of Tonga’s people in 2000 – also seeking to capitalise on this community’s relative isolation and distinctiveness. The project was dropped in the face of vociferous criticism from Tonga’s population, which complained that the informed consent procedures disregarded Tonga’s particular social structure and the importance of the family unit within it. Consent could thus not be obtained from the individual alone, but needed to take into account the views from the extended family group (Nwabueze 2007, 167). However, Autogen’s project addressed previous criticisms made of ‘bioprospecting’ programmes by promising to share the proceeds of any commercial products derived from the research, establishing laboratories on Tonga and assigning property rights over individual genetic samples to Tonga’s government – effectively nationalising this property (Ibid.). A similar approach to property was taken by deCode’s Icelandic Population Biobank. However, in the Icelandic case “informed consent was claimed on behalf of the people of Iceland through an act of parliament” (Senituli and Boyes 2002, 4; see also Fortun 2008). This model differs from other biobanks, which adopted a much more protectionist position towards the material and background information, as for example was the case in Sweden (Nilsson and Rose 1999, 894). Part of the Icelandic plan was to establish a Health Sector Database (HSD) in the Act on a Health Sector Database (No. 139/1998), passed by the Icelandic parliament on 17.12.1998, “which would link its clinical and research data to both the Icelandic health care system records and the genealogies” (H. Rose 2003, 78).83 The Icelandic government created a tissue bank “to complement the HSD” in the Act on Biobanks No. 110/2000 (Nwabueze 2007, 156). This tissue bank and the HSD operated on the basis of licenses, so that the property in the materials collected remained with the government of Iceland. However, the blanket presumption of consent encountered strong criticism, and “six years later that statute was overturned as unconstitutional, and subsequent national biobanks such as those in Australia, Estonia and the United Kingdom have required explicit consent at the time of donation” (Dickenson 2007, 126). Interestingly, the transfer of IP was not directly discussed in ethical debates, even in these very contentious examples of biobanks and bioprospecting projects. Bioethics debates usually revolve around the issue of informed consent to counter allegations of ‘biocolonialism’ perpetrated by companies based in industrial countries, and are slowly also including problems of IP in informed consent structure (Dickenson 2004). The assumption of IP rights by the Icelandic government did not give rise to a debate similar to that of its presumed consent – and still does not, as the details of the transfer of rights in the recently established structures of UK Biobank show. Where it comes to intellectual property, the consent form of UK Biobank clearly states: “I […] relinquish all rights to these samples which I am donating to UK Biobank” (UK Biobank 2011). There is an option for withdrawal from the programme promising “UK Biobank would destroy your samples (although it may not be possible to trace all distributed sample remnants)” (UK Biobank 2010). Thus the transfer of property rights is permanent, even though the samples themselves may be destroyed at a later date. UK Biobank then grants licenses to private corporations and scientists for the use of the genetic information (UK Biobank 2007, 13). Exclusive rights are derived from individually donated samples in all these examples of bioprospecting and biobanking projects – held either directly by a private company or in some cases by the respective national government. These rights are not directly contested in bioethics debates – but they are nonetheless criticised strongly by the Biopiracy and New Enclosure literature. In response, demands for Access and Benefit Sharing (ABS) aim to ensure a more direct connection between the donation of the materials and the eventual profits made from the intellectual property and commercialised products derived from this donation – albeit only in the area of plant genetic material. ABS agreements such as the Nagoya Protocol have been debated extensively for example under the CBD, suggesting amongst others a requirement for the disclosure of the provenance of the sample used for a particular patent application – but have not been included into the list of minimum provisions for patentability under TRIPS. The IP system thus remains doubly exclusionary – assigning exclusive monopoly rights to private entities and at the same time excluding any reference to the origin of samples used for the genetic ‘invention’ in question. This detachedness is mirrored in the division of debates between pro-IP international organisations such as WTO and WIPO, and pro-ABS organisations such as the CBD. This separation between sites of debate also masks a division of interests between industrial, IP-producing countries and developing countries, which are often the location of provenance of samples used in the production of IP. As the next section will show, this division of debates perpetuates the exclusive status of IP, as ABS agreements fail to make inroads on the TRIPS system. While the relation between the Nagoya Protocol and TRIPS is still under discussion, the exclusivity of the IP system remains especially effective in the area of IPRs on information derived from human genetic materials, where no similar ABS agreement has been negotiated.

Biopolitics is as old as the organization of the first cities, when the term was used, more specifically, in relation to the way the State appropriated the bodies and sexualities of its citizens, in order to sustain a determined political and economic model. But, with technological evolution, the center of the political dispute has changed, becoming biological life and the possibility of "making" or "modifying" it in its essence, which had never occurred before in history. With this change in focus, biopolitics added new issues, that is, new material-biological realities, such as cells, chromosomes, molecules, genes, which, in the case of biotechnology, for example, have economic utility and become a desire for appropriation by large capitalist corporations. In this context, technique, science and industry, which are intimately related, become pillars of the economic system1 . The true dimension and conception of biopolitics was born with Foucault, in his work "The Birth of Biopolitics". Based on an examination of the modes of domination operated by the practices of local biopowers in the context of Nazism and socialism, the author brings the vision of the constitution of the newest technologies of domination, elaborated at the level of market economies under the aegis of the economic neoliberalism of the Chicago School. Thus, there emerges what he calls the figure of the homo economicus that transcends the individual's autonomous juridical-political personality, making the individual a simple pawn of the globalized market's economic rules. In this way, the homo economicus becomes an economic agent, who responds to the stimuli of the market logic and assumes the responsibility for the constitution of his professional capital and for the maintenance of his competitive capacity in the labor market, which will be made possible and potentiated by the manipulation of biogenetics, possibly beyond any ethical discussion2 . In light of this new paradigm, biopolitics has become a field that allows the aggregation, approximation and association of sectors of reality related to life, nature and knowledge, whose changes over time have been provoked by industry, science and technology, which today dispute the global politicaleconomic field. Thus, among the sectors of reality and branches of science that can be grouped in the field of biopolitics are biotechnology, genetic engineering, biosecurity, biopiracy, the water problem, the privatization and computerization of knowledge, the accelerated development of biomedicine, scientific experiments, the artificiality and commodification of human reproduction, research using embryonic tissue, and bionanotechnology. These sectors are part of an economy and a politics that transform life and nature as a whole into market slices and objects of commodification3 . This study focuses on the issue of biopiracy, which can be defined as the illegal exploitation of natural resources, including plants, animals, seeds and any other source of genetic material, from national forests, with the intention of using this material for commercial, medicinal or cosmetic purposes, together with the appropriation and monopolization of traditional knowledge of traditional peoples and communities for economic profit4 . In the latter case is the characterization of the current mode of colonization, where large international corporations send employees disguised as "emissaries" to countries that hold a wealth of biodiversity, in order to find out for what purposes and functions traditional local peoples and communities use this biodiversity. Thus, they appropriate this knowledge and then claim that they have invented something that has actually been used for a long time by these populations .5 On the other hand, it is possible to do this in a legitimate way, through the Sharing of Benefits, which consists of sharing the benefits derived from the economic exploitation of finished products or reproductive material developed from access to genetic heritage or associated traditional knowledge6 . However, this sharing of knowledge is not always done in a legal way and, unfortunately, all the biodiversity existing in Brazil, as well as the knowledge of the traditional peoples and communities about it, have attracted the action of international biopiracy, which is considered the third largest traffic in the world7 . Biopiracy has become a multi-billion dollar business, with Brazil being one of the main targets of this criminal business. In light of this, the losses suffered are great, and are related to the loss of knowledge and bioproducts. This damage is estimated at R$ 33.3 billion per year and is linked not only to the illegal trade in genetic heritage, but also to the financial loss for not receiving royalties resulting from the patenting that these corporations do, of active ingredients present in pharmaceuticals, cosmetics and other products, which are obtained from the Brazilian biodiversity and the knowledge of traditional peoples and communities, which are registered in other countries .8 Given these facts, the general objective of this study was to verify whether the Brazilian government has been defending the right of traditional peoples and communities to benefit sharing, as well as how it acts in the fight against biopiracy, which can be considered a crime against the country. The methodology used for this article was the deductive method , which starts from general arguments to particular ones. It was established as sources of consultation books, doctrines, articles and legislation , many accessed via the Internet, through specialized sites such as Scielo, CAPES, Google Academic, the Public Domain, the Library of the Federal Senate and others. This research also had a qualitative approach to the data collected, with a descriptive objective, where the content was evaluated seeking a more global understanding of the information, favoring its quality and its context with the theme.

Rosemary J., Professor, Canada Research Chair, Graduate Program Director of Anthropology in Law & Society (LASO), Socio-Legal Studies (SLST), and Social and Political Thought (SPTH) @ York University; Susannah, PhD Anthropology from University of Georgia, research fellow @ University of Queensland. “Ethnographic Explorations of Intellectual Propertyfree,” Oxford Research Encyclopedias: Anthropology. 27 August 2020. LJS

Amid growing concerns about the reproduction and decontextualization of cultural and biological materials through commodification and the spread of digital technologies, anthropological debates about property and propriety proliferated. Anthropological interest in indigenous heritage rights and property rights, first voiced in terms of the politics of cultural appropriation, evolved into a larger set of questions around the ethics of anthropological and archaeological research more generally in an era in which community relationships to knowledge were the subject of human rights deliberations. In many instances, this reshaped the nature of relationships between anthropologists and their communities of research. Appropriation and the Ethics of Research Just as postmodern celebrations of cultural hybridity, borrowing, and remix gained particular traction in anthropological theory, considerations of cultural appropriation drew new attention to collective cultural rights (Berson 2010; Coombe 2009). Self-identified Indigenous peoples, diasporic communities, and their advocates pointed to the various types of injury enabled by presuppositions of a free, open, and undifferentiated commons (Howes 1996; Ziff and Rao 1997). Such critiques raised acute questions about the ramifications of anthropological research. To what extent may the publication of indigenous knowledge and cultural heritage facilitate misappropriation by placing such material in the public domain (Christen 2005, 2011; Holcombe 2010)? Recognizing that cultural rights—understood as the human rights of communities—could be violated by the unauthorized reproduction and circulation of heritage goods posed new challenges to anthropological research methods, sparking reflection on how the terms and aims of research are established and how knowledge is produced and by whom. For whose or what ends is research justified? Who should decide how research materials should (or should not) be made available (Nagy 2011; Pels et al. 2018)? These issues were considered central in efforts to decolonize research methodologies (Smith 2012). Questions about the management and ownership of anthropological data, the production and circulation of tangible and intangible materials via research and publication, and new expectations about the repatriation of research outputs characterized a new era of scholarly ethics. Within archeology, the capacity of publication to enable information, images, and artifacts to circulate in ways that may negatively impact Indigenous community recognition and rights prompted the creation of new legal tools and ethical protocols with respect to the use of cultural knowledge and property (Nicholas and Bannister 2004; Nicholas and Wylie 2009; Smith 2010). In environmental and ecological anthropology, increased awareness of how publication of ethnobotanical information could facilitate misappropriation of traditional knowledge led ethnobiologists working with indigenous organizations to craft a code of research ethics. The code emphasized the necessity of community participation, informed consent, reciprocity in benefits, and recognition of the customary rights and cultural responsibilities of Indigenous peoples (Bannister et al. 2009). Largely driven by the early Brazilian fieldwork and international advocacy of Darrell A. Posey (1990, 1999), this undertaking was influential in bringing principles of benefit-sharing and compensation for indigenous work into international biodiversity policy and linking such practices to internationally recognized Indigenous peoples’ rights of self-determination (Garcés and de Robert 2012). In other anthropological subfields, the acknowledged inability of IP regimes to accommodate indigenous values and customary practices led scholars to consider alternative strategies for documenting, repatriating, and protecting data, recordings, and other cultural materials. For example, concerns that the circulation of ethnographic music recordings beyond source communities may misrepresent traditions, deny compensation to creators, and offend community norms led ethnomusicologists to explore different means of vesting rights in recorded music to collective holders of intangible cultural heritage (e.g., Aubert 2010; Fox 2017). In the archeology of the Americas, collaborative and community-based research practices developed, using local norms for managing cultural heritage and knowledge as guides for scholarly research practice (Atalay 2012). Applied Methodologies: Alternative Knowledge Management Strategies Digital technologies posed further ethical issues; while they provided new opportunities for source community curation of research, museum, and archival materials, they also created problems for social groups seeking to control the conditions under which cultural resources circulated (Bell et al. 2013). This recognition sparked efforts to create mechanisms for the protection of intangible cultural heritage that would reflect community values, support sustainable development, and foster self-determination (Brown and Nicholas 2012). Anthropologists began to work with local heritage centers, museums, and community leaders to help repatriate materials historically collected under colonial conditions of dispossession (e.g., Nagy 2011). Some created interactive online databases with Australian aboriginal and North American tribal communities which embedded culturally specific terms for accessing and interpreting data (e.g., Christen 2011). Others developed protocols to guide practice and set the terms of knowledge collection and management (Anderson and Younging 2015) and tools such as traditional knowledge labels and licenses to help communities better manage their cultural heritage in digital environments (Anderson and Christen 2013; Anderson and Montenegro 2017; Christen 2015). Many communities learned to define and assert their customary knowledge practices within the context of research relationships, archival repatriations, and digital rights management. Such articulations made communities and their interests more legible to dominant research and curatorial institutions (Coombe and Kisin 2020) and encouraged both parties to critically (re)interpret IP rights for new ends (Colwell-Chanthaphonh 2011). Increasingly organized and internationally networked Indigenous peoples began to exchange knowledge and experience of their practices of digital database management and heritage protection. In the face of widespread state reluctance to revise national IP legislation to address the needs of Indigenous communities, these collaborations helped to establish what became known as international “best practices” for the management and return of archival materials and other culturally significant heritage goods. New cultural policies were thereby recursively produced through collaborations in which anthropological knowledge became enmeshed in broader struggles for community political, legal, and social recognition.

Rosemary J., Professor, Canada Research Chair, Graduate Program Director of Anthropology in Law & Society (LASO), Socio-Legal Studies (SLST), and Social and Political Thought (SPTH) @ York University; Susannah, PhD Anthropology from University of Georgia, research fellow @ University of Queensland. “Ethnographic Explorations of Intellectual Propertyfree,” Oxford Research Encyclopedias: Anthropology. 27 August 2020. LJS

Critically exploring modern liberal political understandings of Western societies as structured by divisions between public and private spheres of activity, concern, and deliberation (e.g., Habermas 1989), anthropologists undermined the narrow conception of IP as merely an economic domain. Rather, they insisted that IP fundamentally shaped the social life of human communications by commodifying cultural forms. Conceiving of the public as a communicative space along Habermasian lines enabled counter-publics to come into view and revealed IP’s role in restricting counter-hegemonic cultural expression (Coombe 1998). Challenging the modern, liberal concept of a singular public domain, anthropologists explored multiple publics as politically significant zones of cultural production and communicative exchange (e.g., Goodman 2005; Hayden 2003). Ethnographic studies of digital workers and software developers showed how non-proprietary digital goods served as a means of communicative deliberation that created patterns of sociality and innovation challenging IP’s distributions of power (e.g., Coleman 2013; Kelty 2008). In the creation of legal frameworks supporting the creation of open source software, for example, anthropologists revealed how IP was strategically used in new social movements that challenged Western understandings of politics (e.g., Chan 2014). Poststructuralist understandings of the public domain explored it as a spatial metaphor, dependent upon law while seeming to function independently as somehow outside it (e.g., “before the law” [Flessas 2008]); the concept of the commons established and policed thresholds that shifted historically according to new capacities for proprietary acquisition and thereby served to justify appropriations. For example, as research in Indonesia and India showed, a state could deem local, collectively created knowledge or artistic creations to be part of the public domain—a declaration that transformed goods previously subject to traditional authorities and norms of transmission into national cultural patrimony (Aragon 2012; Aragon and Leach 2008; Halliburton 2017). Public domains could be “scaled” to create new arenas of jurisdiction. As social movements promoting open and unfettered access to creative productions gained momentum, scholarship showed how valorizations of the public domain mirrored and validated colonial histories of appropriation and dispossession (Bowrey and Anderson 2009; Christen 2015). Transnational ethnographic research suggested that open access advocates working against the extension of IP may be more interested in Western individual expressive freedoms than the cultural rights of communities when trumpeting the public domain (Fish 2014). The Western legal tradition of IP legitimates certain goods as private properties based on individuated authorship and innovation, but often ignores collective genres of novel productivity. Under this framework, the works of many kinds of creative industry—from traditional cultural expression to crop varieties developed by farmers—are considered free for general use. Such elisions are especially consequential because states routinely misrecognize the forms of creativity, territorial inscription, and cultural work of minorities, particularly Indigenous peoples in settler colonies who have been deliberately marginalized by policies of cultural assimilation (Anderson 2009). Anthropologists explored the political consequences of decontextualized distinctions between the public and the private within postcolonial contexts and in decolonizing agendas. They considered the historical conditions under which “the public domain” was forged, the illusions of equality and inclusion it projected, and the means by which modern nation-states thereby assume sovereignty over the products of certain human energies (Aragon 2012; Brush 1999; Christen 2012). In an era of biodiversity loss in which biotechnological innovation was prioritized for agricultural futures, IP regimes clearly privileged the work of laboratory and field science as innovation, denying the contributions made by farmers and peasants to the world’s plant genetic resources (Brush and Stabinsky 1996; Cleveland and Murray 1997). The historical categorization of crop germ plasm as the common heritage of humankind, despite its distinctive development in culturally and ecologically discrete fields of human endeavor, obscured practices of farmer innovation (Brush 2004). Like the public domain, the common heritage concept denied non-individuated, situated agencies (other than corporate ones), and licensed accumulation by dispossession (Harvey 2003; Kloppenburg 2010). Just as the “tragedy of the commons” (Hardin 1968) was recognized as a central myth justifying private property (Rose 1986), exposing a fictitious “commons” as IP’s other helped shift attention to possessive relations beyond the exclusive market-based rights characteristic of Western models of protection. Anthropological consideration turned to other concepts of attachment (e.g., stewardship [Brosius 1999; Fish 2006; Ogden et al. 2013]) to understand human management of culturally and ecologically significant knowledges, practices, and goods. As anthropologists began to explore a diversity of publics with distinct moral economies of cultural circulation, they became more concerned with issues of governance and types of publicity. Other structuring dichotomies of the law such as discovery and innovation, imitations and originals, tradition and modernity, and other variants of what Lévi-Strauss (1964) described as “the raw and the cooked” came into view. Showing how IP discourse figured in local social imaginaries, ethnographic research from Latin America, Africa, and the Pacific illustrated that the places perceived of as “outside” IP’s governance were not simply places of license, but sites of cultural memory (Goodman 2002, 2005), moral economies of care (Hartigan 2017; Nazarea et al. 2013), significant spaces of responsibility (e.g., Solomon 2004; Wright 2008), and aspirations for global belonging (Larkin 2008). Whether they were considering the meaning of open source software in animating understandings of democracy and speech in the United States (e.g., Coleman 2013), the protection of plant varieties in Costa Rica (Aistara 2012), the political work of making and marking traditional medicine in Tanzania (Langwick 2015), or the social life of generic drugs in Mexico (Hayden 2007), anthropologists challenged proponents of liberal public goods to attend to significant social relations co-produced through IP regulation.3

Rosemary J., Professor, Canada Research Chair, Graduate Program Director of Anthropology in Law & Society (LASO), Socio-Legal Studies (SLST), and Social and Political Thought (SPTH) @ York University; Susannah, PhD Anthropology from University of Georgia, research fellow @ University of Queensland. “Ethnographic Explorations of Intellectual Propertyfree,” Oxford Research Encyclopedias: Anthropology. 27 August 2020. LJS

As anthropologists reassessed their research and publication practices with respect to marginalized communities, digital technologies were transforming the means by which texts could be shared in the discipline, spurring new social movements concerned with the production and circulation of informational goods, which attracted ethnographic inquiry. FLOSS (free [libre] and open source software) and open access publishing (OAP) movements were based on beliefs that new technologies should facilitate the dissemination of knowledge and democratize an informational commons. OAP offered an especially attractive antidote in an environment marked by increasingly expansive IP rights, escalating prices, and industry concentration that threatened to undermine the dissemination of anthropological knowledge. Scholar advocates encouraged their professional associations to adopt new publishing practices to enhance the circulation of scholarship; lively debates ensued about the meaning of open access and its relationship to research ethics and creative alternatives for managing and disseminating research data (Golub 2004; Kelty 2008). OAP ideally made anthropological knowledge more available to subject communities, providing a new means for crafting more ethical research practice (Boellstorf et al. 2008). A number of journals dedicated to making anthropological work more accessible to broader publics emerged. The journal Cultural Anthropology, HAU books, the HAU journal Journal of Ethnographic Theory, and various blogs published ethnographic reviews, commentaries, and conversations for ever-broader publics. Such projects prompted a new wave of scholarship exploring the economic, technical, and institutional constraints shaping publishing practices. As open access became increasingly monetized, however, questions emerged about the financial and organizational capacity of publishers to prioritize accessibility. Conversations about access turned to more general deliberations over openness and inclusivity in the production of knowledge and in knowledge exchange (Gershon 2018; West 2018). Deliberations on the nature of relationships and obligations that were carried into op en access projects (e.g., LaFlamme and Boyer 2018; Mahi Tahi Collective 2018) tended to echo earlier criticisms of the advocacy of an overly romanticized public domain that failed to recognize how old exclusions may be reproduced and new forms of dispossession facilitated when “freedom” was celebrated but structural positions of privilege and precarity remained unchallenged.

This tension surfaced with Marcel Mauss’s 1925 publication of The Gift, which Esposito (1995:193) aptly describes as “l’architexte” of a line of discourse that presents the gift as a critique of the ever-expanding utilitarianism of modernity. Mauss ([1925] 1990:76) presented anthropological accounts of archaic gift-exchange societies precisely to challenge the instrumental view of human beings as the “‘economic animal’ . . . homo oeconomicus.” As an alternative to the commodity-exchange societies produced by these economic animals, Mauss was particularly intrigued by potlatch communities, such as the Kwakiutl of Northwest America. In such communities, gifts were reciprocally exchanged in an obligatory and selfinterested manner rather than a gratuitous and altruistic one, and social status was determined not by the accumulation of wealth but by the ability and willingness to return even greater gifts than those received (Mauss [1925] 1990). Despite being governed by a “principle of rivalry and hostility that . . . takes on an extremely marked agonistic character” (p. 6), Mauss nevertheless claimed that the three obligations of the potlatch—“to give, to receive, to reciprocate” (pp. 39–43)—were the foundation of social integration in these premodern cultures. He recognized vestiges of gift exchange in contemporary culture and sought to cultivate them as a check on the “constant, icy, utilitarian calculation” of capitalist societies (p. 76). When the first widespread intermingling of body parts occurred, with the transfusion of blood during the world wars, the tension between gift and commodity exchange intensified, and it has shaped the bioeconomy ever since. As would be expected in this nationalistic context, voluntary donation was the standard practice for blood procurement among combatant nations; after the wars, the gift remained the prevalent model for gathering blood. England established the Blood Transfusion Service in 1946, which eventually became the National Blood Service, and the American Red Cross began a national civilian donation system in 1948. Blood donation was of particular symbolic potency in France, where it was viewed as a heroic gesture during the Resistance. In 1949, France established the Centre National de Transfusion Sanguine (CNTS), which “was organized and run according to three sacred guiding principles: benevolence, donor anonymity, absence of profit” (Rabinow 1999:79). Nearly half a century after The Gift, Richard Titmuss (1971) praised this voluntary blood donation model in The Gift Relationship: From Human Blood to Social Policy, claiming that this form of gift was morally superior to Mauss’s potlatch because it involved no obligation of reciprocity; blood was exchanged anonymously among strangers, and “[n]o givers require or wish for corresponding gifts in return. They do not expect and would not wish to have a blood transfusion” (Titmuss 1971:74; see also Waldby and Mitchell 2006). Titmuss (1971) was effusive in praising this allogenic gift model, but he was equally scathing in his criticism of the way some blood was procured in the United States. Voluntary donation was the prevalent technique for procuring blood in the United States during and 362 Sociological Theory 34(4) after the Second World War, but local blood banks also appeared that paid for “donations” or required recipients to make a deposit of their own blood or that of a proxy (Titmuss 1971; see also Waldby and Mitchell 2006). Titmuss (1971:158) condemned this commodified exchange of blood and warned quite presciently: blood as living tissue may now constitute in Western societies one of the ultimate tests of where the “social” begins and the “economic” ends. If blood is considered in theory, in law, and is treated in practice as a trading commodity then ultimately human hearts, kidneys, eyes and other organs of the body may also come to be treated as commodities to be bought and sold in the marketplace. Titmuss’s warning was late, however: U.S. biomedical practices had already infiltrated the voluntary donation systems of England and France. The practice of private blood banking encouraged U.S. pharmaceutical companies to develop techniques for separating blood plasma from red blood cells and “fractioning” the plasma into biovaluable components, such as Factor VIII, a concentrated clotting agent that greatly increased hemophiliacs’ life expectancy. These U.S. companies began to purchase blood from developing countries in the 1970s in order to produce enough Factor VIII to distribute internationally as a bio-commodity. Because France and England could not produce enough Factor VIII through their voluntary donation systems, they imported this life-saving product from U.S. pharmaceutical companies (Waldby and Mitchell 2006; see also Rabinow 1999), “tainting” their gift models by participating in the profitable, commercial exchange of blood. I will return to this tension between the treatment of blood as a gift and a commodity in the third section, when I discuss the second line’s criticisms of the gift model, but here I want to emphasize that the circulation of blood as a commodity occurred in the particular neoliberal culture that developed in the United States during the postwar period. Foucault examined this American strain of neoliberalism, just as it was about to manifest politically as Reaganism and Thatcherism, in his 1978–1979 Collège de France course La naissance de la biopolitique. These lectures were published in French in 2004, along with the lectures from his 1977–1978 course, Sécurité, Territoire, Population, as what editor Michel Sennelart describes as a “diptych unified by the problematic of bio-power” (Foucault [2004] 2007:369). These volumes appeared in English as Security, Territory, Population in 2007 and The Birth of Biopolitics in 2008, which was too late for them to be taken into account in many of the second line’s major works on the bioeconomy. In fact, among the works from the second line cited here, only Cooper’s (2008) Life as Surplus actually acknowledges these lectures, and she mentions La naissance de la biopolitique in her Introduction only to emphasize that her analysis begins precisely where Foucault’s analysis ended (Cooper 2008:8–11, see also notes 5 and 6, pp. 177–78).1 I would like to linger a bit on The Birth of Biopolitics, however, because these lectures reveal a facet of American neoliberalism that has proven particularly seductive to some members of the second line, other than Cooper. Foucault distinguished two contrasting models of postwar neoliberalism in The Birth of Biopolitics: German “ordoliberalism,” which developed at the University of Freiburg in the 1930s to 1950s, and American neoliberalism, which flourished at the University of Chicago in the 1960s to 1970s. Ordoliberalism sought to create an “enterprise society” that was conducive to market competition but also supported “the reconstruction of a set of what could be called ‘warm’ moral and cultural values which are presented precisely as antithetical to the ‘cold’ mechanism of competition. . . . The enterprise society imagined by the ordoliberals,” Foucault ([2004] 2008:242) emphasized, “is therefore a society for the market and a society against the market” (see also Lemke 2011b; McNay 2009). There was no such Tierney 363 ambivalence in American neoliberalism, which recognized no values beyond economic rationality. Rather than treating society as a check on the extension of “economic analysis,” as both Titmuss and the ordoliberals had, American neoliberalism instead saw society as an “unexplored domain” that offered “the possibility of giving a strictly economic interpretation of a whole domain previously thought to be non-economic” (Foucault [2004] 2008:219). The epitome of this American neoliberalism was the “human capital” theory developed at the University of Chicago by Nobel laureates Theodore W. Schultz and Gary Becker, which dissolved the “warm” social values of ordoliberalism into nothing more than individual decisions about the use of scarce resources to satisfy competing ends (Foucault [2004] 2008:222– 23; see also Lemke 2011b:109–11).

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 92-95. LJS

In his work, Foucault specifically proposed a different type of analysis to Marxist theory’s overwhelming focus on the power effects of economic relations23, or, the “‘economic functionality’ of power” (Foucault 1997, 14). With regards to law, Foucault intentionally reversed the analysis, arguing that “the juridical is clearly not part of the superstructure” (2008, 162), instead “the juridical gives form to the economic” in “an economic-juridical order” (Ibid., 163). The functioning market is no longer understood as a product of nature but as a deliberately constituted system that is being kept in its desired form by means of a juridical order. For example, the conditions for competition in the market are put in place by “formal privileges”: “[t]he beneficial effects of competition are not due to a pre-existing nature, to a natural given that it brings with it. They are due to a formal privilege. [….] [C]ompetition as an essential economic logic will only appear and produce its effects under certain conditions which have to be carefully and artificially constructed” (Ibid., 120, emphasis added). In similar way, IPRs are formal privileges conferring property rights necessary for creating value in a market economy. For a functioning market, the objects of property need to be stable and clearly identifiable – even more so in the case of scientific knowledge objects, which need to be artificially constructed in the form of exclusive monopolies in order to gain particular economic value. Without this, the dissemination of knowledge would remain “nonrivalrous”, as the sharing of knowledge does not diminish the value of the information itself (see for example Boyle 2008, 3). Emphasising the constitutive role of law for the market, especially in the technical field of law comprising the rules of property and trust, consequently shows: “that the relation between an economy of competition and a state can no longer be one of the reciprocal delimitation of different domains. [….] Government must accompany the market economy from start to finish. The market economy does not take something away from government. [….] One must govern for the market, rather than because of the market.” (Foucault 2008, 121, emphasis added) This understanding reverses Marxist theory’s analysis of the relation between the forces of the market and of government, and instead stresses that the economy is a product of law. Connecting this point of reference for law with an understanding of law’s changes towards the norm shows that especially technical fields of law such as IP law are governing for the market – and in this function also increasingly contributing to the governing of the problematization of life. IP’s growing relevance thus confronts this field of law with tensions between two aims of governing, which need to be resolved incrementally by IP policy and jurisprudence. Law’s constitutive relation to the economy emphasises the political relevance of the field of law, and highlights that it also constitutes an important site for resistance: “we must be able to act on this ensemble and intervene in such a way as to invent a different capitalism” states Foucault, and stresses that instead of “economic interventionism”, interventions need to take the shape of “maximum legal interventionism” (Ibid., 167). This makes a clear case for renewed attention to economic law, understanding tensions within this sector as modes of resistance that can influence the constitution of the economy. Law therefore ceases to be an afterthought for political analysis, and rather becomes a central site of analysis. The change towards a norm thus entails more than a change in status, it is rather a change towards becoming a site of contestation at which law is acting as a tactics governing challenges. Golder and Fitzpatrick show that law operates in two different modalities in governmentality, as a norm and also “in a constitutive engagement […][with] resistance and transgression”, in which it “extends itself illimitably in its attempt to encompass and respond to what lies outside its definite content” (Golder and Fitzpatrick 2009, 71). In this responsive mode, law can even “[disrupt] itself through becoming receptive of resistances that constantly challenge its position, its content, its being” (Ibid.). Using this understanding of law’s responsiveness to challenges sheds light on the role of law as a “tactics” determining “the right disposition of things” (Foucault 2000, 211). At the intersection of governing for the market and governing for life, tensions are growing around the influence of genetic conceptions of life (the ‘genetic dispositif’) and the rising importance of IPRs for deriving economic value from life. Here, IPRs begin to respond to challenges regarding their relation to life while maintaining their economic function – thus becoming operative in the determination of the “right disposition of things”, as a tactics that accommodates challenges while maintaining order. Golder and Fitzpatrick’s understanding of law’s responsiveness towards challenges highlights that this accommodation of resistance can even lead to a disruption of law. The analysis of contestations surrounding IP’s relation to life in the coming chapters shows how engaging with different ‘truths’ of life could very quickly disrupt the economic function of IPRs, and how challenges relying on human rights and the notion of ‘market failure’ could contest IP’s legitimacy even on a fundamental economic level. However, it is also shown that as a tactics of government, IPs continue to play a variety of roles that maintain the function of the economy by limiting the participation of donors in the further use of their donated material, transferring ownership to other participants in the bioeconomy, and by normalising scientific knowledge that ensures certainty and predictability instead of a complex genetic conception of life. As IPRs negotiate these pressures and roles, they change from a “mundane” form of technical knowledge to an important site of contestation in an unfolding governmentality.

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 51-56. LJS

However, attempts at categorizing IPRs as gift or commodity reveal a more complex situation. IPRs on information derived from human genetic materials incorporate elements of both categories of the commodity and the gift, as IP ‘commodifies’ information in a manner that actively separates any connection between the donor and the owner of IPRs derived from the donation. Titmuss pointed out that the free donation of blood ensured a higher quality of the donation compared to that of paying donors– arguably because of “an altruistic motive” (Titmuss 1997, 124 and 125). But in the case of IP, donors are “legally excluded from any stake in […][IP’s] profitability” (Waldby and Mitchell 2006, 24). Instead of giving rise to the socially beneficial effects of the gift relation observed by Titmuss in the area of blood donation, IPRs preclude donors from any form of societal recognition – especially on the international level. In the case of IP, the dichotomy of gift and commodity results in a rather cynical situation, in which “[Titmuss’] strategy to make the human body a bulwark against the commodification of social life, a strategy now institutionalized in bioethical procedure, has simply rendered the body an open source of free biological material for commercial use” (Ibid.). This opportunistic exploitation of altruistic motives for donation goes beyond a dichotomous relation between gift and commodity, and needs to be understood as more than a coincidence. While the contrast between commodity exchange and gift economies can reveal some of the limits of an analysis determined by a focus on economic relations in a market, it cannot further explain the connection between the “moral enforcement” of donations and the exploitative function of IPRs with regards to donations. Rather than producing societal cohesion, the moral duty to provide voluntary donations here becomes embroiled in a different political project, as chapter V of this thesis argues. Using the example of active patients who participate in research in the endeavour to improve their own condition, this chapter points out that patients are encouraged to take responsibility for their physical condition, now defined in genetic terms according to a new “somatic ethics” (N. Rose 2008a), and become actively engaged in improving their self in an entrepreneurial manner (McNay 2009). Focusing on reinstating a more ‘appropriate’ kind of property cannot account for the way in which these patients challenge exclusion from research by using IPRs in order to promote their own well-being. This behaviour confronts IP with a new ethics based on genetic truth, which challenges IP’s exclusionary role towards patients, preventing them from participating in the use of their donation. After briefly drawing attention to the limitations of the commodification critique’s focus on market relations as the determining force of IP’s relation to life, the last section of this chapter then shows how other analyses of the biotech/ life science sector have begun to engage with the ways in which “life as a productive force” (Yoxen 1981) is harnessed by the economy but also continues to produce problems and challenges for governing. 2.3. The Limits of the Commodification Paradigm – ‘Forgetting’ Life Critical perspectives on IP’s ‘commodification’ of life thus debate the appropriateness of the underlying parameters of IP, and in this way “serve to reproduce the very processes that they criticise” (Pottage 1998, 758). This focus on the parameters of commodification engenders an economically determined understanding of social relations, and marginalizes a wider politics of life. A deeper understanding of the notion of ‘commodifcation’ derived from the work of Marx and the Frankfurt School reveals the extent of the economic determination implied in the commodification critique. While IP’s role in the commodification of life certainly needs to be seen critically, the “paradoxes” (Waldby and Mitchell 2006, 163) at the intersection of the economy and knowledge over life demand a less unidirectional understanding of IP’s role in this. Genetic conceptions of life also challenge IPRs, by undermining the distinction between inventions and discoveries (see chapter IV), and by giving rise to new demands on laws and policies regarding the treatment of life (see chapter V and VI). This thesis argues that in the management of these challenges, law takes on a new role as a mode of governing tensions – which goes beyond IP’s unidirectional role in the economy as a tool for commodification. Marx’s critical analysis of capitalism centres on the relation of labour to the commodity, which is constituted by a process of abstraction or alienation not from its use or purpose, but with reference to the amount of human labour spent on it (Marx 1990, 127). This objectification of labour in the commodity gives rise to its “fetish character” 7: “A commodity is […] a mysterious thing, simply because in it the social character of men’s labour appears to them as an objective character stamped upon the product of that labour; because the relation of the producers to the sum total of their own labour is presented to them as a social relation, existing not between themselves, but between the products of their labour.” (Ibid., 164) The objectification of “men’s labour” in the commodity by means of contingent processes of value attribution is here seen as the basis for social relations. It “transforms every product of labour into a social hieroglyphic… [which] [l]ater on, men try to decipher […] to get behind the secret of their own social product” (Ibid., 167). The process of commodification thus has objective and subjective implications: “Objectively a world of objects and relations between things springs into being […] [whose] laws confront [man] as invisible forces that generate their own power. Subjectively […] a man’s activity becomes estranged from himself, it turns into a commodity which, subject to the non-human objectivity of the natural laws of society, must go its own way independently of man just like any consumer article.” (Lukáçs 1971, 87) This determination of the social realm by a system of meaning formed with reference to the exchange value of the commodity is decisive for the understanding of critiques of commodification – which thus focus their critique on a sphere of politics fundamentally determined by the exchange value of commodities. Crucially, this critical focus on commodification entails a marginalisation of understandings and content of social relations that do not fit this economic rationale, as the processes of abstraction already entail a “forgetting” of those less commodifiable contents. As Adorno and Horkheimer point out, “[a]ll objectification is a forgetting” (1979, 230). The use of the concept of commodification in critical theory thus serves as a reminder of the processes of abstraction and alienation involved in the constitution of the commodity, and the net of social relations that emerges from this process, enveloping the individual. The commodification of human tissue, in extension, folds the individual into these relations (determined by exchange value) on the level of physical existence, and critiques focus on the ever-increasing sphere of this economically determined net of social relations. This critique of commodification has a particular normative content, as Honneth notes: “it signifies a type of human behavior that violates moral or ethical principles by not treating other subjects in accordance with their characteristics as human beings, but instead as numb and lifeless objects – as ‘things’ or ‘commodities’.” (Honneth 2005, 94) Importantly, pervasive “invisible forces” created through economic relations of exchange are “confront[ing] [man]” (Lukáçs 1971, 87) and bringing about these morally reprehensible effects of commodification. From this perspective, IP’s economic role on the one hand confronts the individual as an abstract regime that is virtually unchangeable, and on the other, turns the subject’s involvement in research into a commodity which “must go its own way independently of man just like any consumer article” (Ibid.). In this vein, Haraway for example criticises IP as “the kind of relationality that poses as the-thing-in-itself, the commodity, the thing outside relationship, the thing that can be exhaustively measured, mapped, owned, appropriated, disposed” (Haraway 1997, 8). But she also notes that this relationality prefers measurable and knowable content at the expense of all other “bumptious” qualities of nature and life, which are sidelined (Ibid., 135) – for example in the overwhelming focus on the mapping of the human genome, and the discarding of “junk” DNA. This ‘forgetting’ or dismissing of a vast array of nature’s ‘content’ highlights IP’s reliance on measurable forms of knowledge, but it also assumes a clear unproblematic complementarity between genetic understandings of life and IP, and does not further complicate this relation. But genetic sequences, as the Myriad judgement shows, can pose significant problems to the IP regime, which in response struck a compromise ensuring some patentability while also acknowledging the informational content of genetic sequences. Also, as chapter V shows, patients often freely volunteer their genetic information and even in some cases actively patent their own condition to exert control over research in this area. This thesis argues that these uses of IP require a different perspective, which places emphasis on changes in the use of IPRs beyond the sheer provision of commodities for the market. Foucault’s critique takes a “different direction” to that of the Frankfurt School, especially where it comes to the construction of notions of selfhood (McNay 2009, 62; Burchell 1993). It “understands the commodification of subjective experience not so much through ideas of passive consumerism, standardization and heteronomy, as through ideas of active differentiation, regulated self-responsibility and depoliticized autonomy” (McNay 2009, 62). Instead of looking at processes of homogenisation through the production of false freedoms, Foucault’s accounts look at how processes of “active differentiation” for instance encouraged by the notion of the “self as enterprise” give rise to a more resilient neoliberal system (Ibid., 63). As the next chapter sets out in more detail, this productive way of governing through inciting “active” forms of self-actualisation is explored on three different levels in the remainder of this thesis, exploring the contributions of IP law to the governing of life on the level of knowledge, the subject, and the exercise of power. An emphasis on processes of identity formation and governance has also been applied in some recent analyses of the life science/ biotech sector (N. Rose 2007b; Rajan 2006; Cooper 2008; Rouvroy 2008). While none of them focus on the role of IP in this context in a comprehensive and rigorous manner, the last section of this chapter shows how they account for the wide influence of the genetic vision of life in their analyses.

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 19-20. LJS

The focus on the ‘commodification’ of aspects of life presents a clear normative critique of this process’ detrimental effects on developing countries and the availability of knowledge for research and development. However, this critique places overwhelming emphasis on the economic determination of legal and social relations, in which IPRs are understood as a unidirectional mechanism enabling processes of commodification for exchange in the economy. This unilateral reading of IP’s role in the economy detracts from a deeper understanding of its conflicted and less unidirectional role in the normalisation of knowledge and in the regulation of participation of patients and developing countries within the bioeconomy. It also does not account for the variety of motivations for participation in such undertakings, not all of which are driven by economic concerns. This thesis argues that an analysis of IP’s encounter with life needs to account for IP’s functions within a developing political sphere based on genetic conceptions of life. In contrast with the commodification critique’s unidirectional determination of IP’s role, Foucault’s notion of governmentality “understands the commodification of subjective experience not so much through ideas of passive consumerism, standardization and heteronomy, as through ideas of active differentiation, regulated self-responsibility and depoliticized autonomy” (McNay 2009, 62). Instead of looking at the homogenisation of society with reference to an alienating system of abstract value creation, Foucault’s concepts highlight how active processes of differentiation for instance contained in the notion of the “self as enterprise” give rise to a more resilient neoliberal system (Ibid., 63). The genetic conception of life here provides novel parameters for responsible conduct in a new “somatic ethics” (N. Rose 2008a). Importantly, these active processes of self-governing can both reinforce and also challenge the IP system, as in the case of PXE International’s use of patents on the genetic condition pseudoxanthoma elasticum (PXE) for the purpose of exerting control over research agendas without following commercial aims (see chapter V). IPRs on genetic conceptions of life are thus used in a less unidirectional way than the notion of commodification suggests, and are rather becoming part of a diffuse net of power relations. This perspective on the governing of life directs attention to the role of law in setting out the conditions on which the economic system operates – for example putting in place the rules necessary to guarantee a ‘free’ market. These conditions conduct the behaviour of individuals within this market, rather than just operating as restrictions, or punishments. Law thus is “productive” in this function, and becomes increasingly included in the “governing” of economic and social relations. Foucault’s concept of governmentality points to the central relevance of knowledge or ‘truth’ for the determination of appropriate conditions that “conduct the conduct” of individuals for example in the market (Foucault 2008, 186). These parameters also seek to enable a form of governing that intervenes as little as possible in the form of direct punishments or orders – heeding an “economic” calculus for determining an optimum amount of governmental intervention (Ibid., 19, 208, 319; N. Rose and Miller 2010). This economic calculus can however be challenged by emerging biopolitical strategies, which focus on fostering the life and wellbeing of populations on the basis of knowledge over life itself (Foucault 1978, 138). This thesis argues that IPRs are increasingly embroiled in tensions between the operation of the market and the significance of genetic knowledge for the governing of life. At the intersection of knowledge and the market, the IP regime is doing more than merely creating commodities for exchange in the market: it elevates certain forms of knowledge over others, normalises an official canon of knowledge, enables specific forms of participation in the economy, and prevents others. In fulfilling these roles, the IP regime “governs” challenges arising from a genetic conception of life – which give rise to a particular politics of life. This analysis certainly does not mean to suggest that IPRs do no longer produce commodities for the economy, or that the entire apparatus of IPRs is undergoing a radical change, but rather seeks to trace an emerging engagement with a political sphere of life that can pose significant challenges to the IP regime on the international and the national level.

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 9-10. LJS

This thesis argues that these “paradoxes plaguing the intersection of the human body and intellectual property regimes in the present moment” (Waldby and Mitchell 2006, 136) cannot be explained through the prism of the “commodification” of life alone. Rather, analyses need to account for the emergence of a “new moral economy of R&D” (Lezaun and Montgomery 2015) and IP’s role within a “new somatic ethics” (N. Rose 2008a; 2007a), in which patients are incited to take active responsibility for their wellbeing. It argues that IP is becoming a central site that governs the increasing “problematization” of life (Foucault 1994, 114). Here, the predominant informational-genetic dispositif of life gives rise to intensifying tensions between the patenting of genetic sequences and emerging practices of self-governing on the basis of genetic knowledge. This thesis analyses the role of IP in confrontation with this shifting terrain of a politics of molecular life, and argues that it does more than provide commodities in the bioeconomy: IP governs participation and normalises knowledge, and thus acts as a “tactics” of government (Foucault 2000, 211), engaging “responsively” (Golder and Fitzpatrick 2009, 56) with challenges to these roles. IP’s relation to genetic conceptions of life thus goes beyond the “commodification” of life, and is better conceptualised as a confrontation with biopower, which can shed new light on the “paradoxes” at the intersection of genetic conceptions of life and IP law. The following chapters provide an in-depth analysis of IP’s contribution to the governing of life by managing tensions around truth discourses over life, the subject’s participation in the bioeconomy, and IP strategies for control over research agendas. This highlights two trajectories of challenges that are neglected in an overwhelming emphasis on commodification: the role of IP as a regime that excludes participation in the bioeconomy, and the role of IP in establishing control over a normalised version of knowledge over life.

Nicholas, School of Law, Criminology and Government, University of Plymouth, Plymouth, UK. “Information biopolitics: copyright law and the regulation of life in the network society.” International Review of Law, Computers & Technology, DOI: 10.1080/13600869.2020.1784563. LJS

The dispersal of power which biopolitics attains to is characteristic of liberalism, which, as a principle and method for rationalising the exercise of government, ‘obeys the internal rule of maximum economy’ (Foucault 2008, 318). The modern state’s aims of health and social productivity, as discussed above, called for updating governmental reason towards complying with rational behaviour, as in foreseeing and managing the allocation of scarce resources towards alternative ends (Grenier and Orléan 2007). Governmental action would not be evaluated on moral grounds of its legitimacy or illegitimacy, but rather on its success and capability to reflect on its own necessity, usefulness and potentially delivered harms: the principle of government shifted ‘from external congruence to internal regulation’ (Lemke 2011, 46). This would be optimally served in the spirit of governmental self-limitation, by dispersing governmental knowledge across institutions, structures and forces that operate within the social body – the market included. On the other hand, liberal governmentality of this mode and spread restrained state authority ‘through the invention of universal individual rights and subordinated it to the interests of civil society through the gradual introduction of liberal democratic representative institutions’ (McFalls and Pandolfi 2014, 177). Linking liberalism with political economy, Foucault points how the limited state prospect forwarded the – rational – imperative of self-regulation. Biopolitics also instils this imperative into individuals as self-discipline: an internalised obligation to look after their self (in terms of health, lifestyle and so on) in order to be productive subjects (see also Macherey 2015). Within this context Foucault credits biopower ‘as one of the basic tools for the establishment of industrial capitalism and the corresponding type of society’ (2003, 36), acknowledging that capitalism ‘would not have been possible without the controlled insertion of bodies into the machinery of production and the adjustment of the phenomena of population to economic processes’ (1978, 141). An important transition started taking place in the second half of the twentieth century, where Foucault traced the development of neoliberal governmentality as a response to liberalism’s inflating state-phobia. He observes the conversion from Europe-based social market economies to extreme ‘too much government’ stances of American neo-liberalism, which seeks to extend the rationality of the market, the schemas of analysis it offers and the decisionmaking criteria it suggests, to domains which are not exclusively or not primarily economic: the family and the birth rate, for example, or delinquency and penal policy. (2008, 323) The implications which we may distinguish in this are crucial. First, in continuation of liberalism’s state limitation project, neoliberalism ‘subordinated the state to market veridiction by reducing its role to the encouragement of biopolitical techniques of individual and societal self-government’ (McFalls and Pandolfi 2014, 177). Moreover, the dispersal of power is closely followed by increasing privatisations of management and administration aspects, including the transfer of dispersed biopolitical technologies and their socially permeating effects under private control. Second, liberalism referred to the rule of maximum economy to optimise life; neoliberalism in the name of life maximises economy. This indicates a key reorientation of focus for biopolitics. Whereas biopower ‘endeavours to life, subjecting it to precise controls and comprehensive regulations’ (Foucault 1978, 137) its ends are now aligned to inserting life processes into the market. It may thus serve ‘the interests of capitalist accumulation and market forces by eliciting and optimizing the life forces of a state’s population, maximizing their capacity as human resources and their utility for market capitalization’ (Nadesan 2008, 3). If biopolitics connotes interventions at the levels of the body, birthrates, sexuality, conduct and everyday life, and especially where such interventions are aimed at reproducing a prevailing sense of normalisation, neoliberalism subjects biopolitics and encompassed flows of life processes to market rationality and the cynicism, perhaps, of applying to this context the purely economic instrumentality of terms such as ‘utility’, ‘budget’, ‘investment risk’, ‘liquidation’ and so on. To summarise the first caveat, neoliberal developments denote along with privatising state power the privatisation of biopolitics, and then a qualitative shift towards intensifying control of life processes as market resources. 4.2.2. New biopolitical technologies Biopolitics in the past included efforts in public health, medicine, psychiatry, public policing and sexuality sciences; for the twenty-first century it has evolved to employ now genetic technologies, biological weapons, global communication networks, and advanced digital analytical tools (Koopman 2014). On top of that, political technologies of control14 seem now fully submerged in the widespread use of globally distributed, ubiquitous and pervasive digital technologies: a fast-expanding chaotic structure of intersecting apparatuses (dispositifs), within the operation of which are absorbed all notions of ‘the Internet of Things’, ‘algorithmic governance’ and so on – even the over-encompassing concept of the ‘Network Society’. Therefore, the reach of biopower deepens across populations, its impacts are becoming more immediate and intensified, whereas uncontrollable diversities of private and public entities get involved in determining how, when and towards whom power is exercised, by virtue of their access to or ownership of the intertwining hardware and software setups and their management. 4.3. Biopolitics revisited Foucault’s death meant that the link he began to establish between biopolitics and neoliberalism remained unclear. In addition, it coincided with a turning point in neoliberalism’s development, that is the rise of neoliberal capitalism during the Reagan-Thatcher era (Harvey 2005). The emerging neoliberal state, according to its critics, would tend to intervene in the marketplace to protect financial interests, while principles of competition and fairness – otherwise championed by neoliberal theory – would be increasingly negated in ‘the extraordinary monopolization, centralization, and internationalization of corporate and financial power’ (Harvey 2005, 203). The gap left by Foucault, invited several reformulations of his biopolitics concepts. Among those, the following discussion will engage with the work of Hardt and Negri, which allows some direct connections to IPrelated issues. In their ongoing project (2000, 2004, 2011, 2017), they have revised the notions of biopolitics, biopower and governmentality towards constructing a critical response to late neoliberal capitalist globalisation. Significantly, their work blends biopower with neo-Marxist perspectives of labour and, although criticised for overstretching or even blurring Foucault’s original take on biopolitics, it is recognised for breathing into it a fresh activist dynamic (Lemke 2011; Koopman 2014) by creatively constructing the positive biopolitical subjectivity of the ‘Multitude’. Of interest to this discussion is their extended consideration of immaterial and social production, as well as the development of the concept of the ‘common’, notably as their writing evidences links with some of the literature discussed in previous parts of this article. 4.3.1. Immaterial labour Hardt and Negri view global informatisation forming a crucial paradigm shift and marking a break with modernity (2000). Τhe information era has been most prominently characterised by the rise of immaterial labour: labour that creates immaterial products, such as knowledge, information, communication, but also imagination, relationships, affection, and emotional response (2000, 2004). Under these terms, ‘immaterial’ production reaches beyond ‘intellectual labour’ (also in the sense of creativity and artistic works) to also include the social capital of social networks, personal connections, affective and digital labour (2017). However, immaterial production remains deeply material, as it involves brains and their bodies – like all forms of labour. Therefore, immaterial labour emerges as deeply biopolitical. At the same time, whereas material production provides the main means on which we build social life – cars, clothes, televisions but also computers, smartphones and so on – ‘immaterial production, including the production of ideas, images, knowledges, communication, cooperation, and affective relations,15 tends to create not the means of social life but social life itself’ (2004, 146). It is production that also delivers material goods, as well as relationships and, ultimately, social life. 4.3.2. The ‘common’ Hardt and Negri highlight that either at the sides of immaterial labour in the strict sense (employment) or mainly through our casual, common participation in such networks of communications and relationships, we are creating in common ‘the means of interaction, communication, and cooperation for production directly’ (2004, 147). There [o]ur common knowledge is the foundation of all new production of knowledge; linguistic community is the basis of all linguistic innovation; our existing affective relationships ground all production of affects; and our common social image bank makes possible the creation of new images. (2004, 148) This frames Hardt’s and Negri’s definition of the ‘common’, which integrates, next to physical natural environments and resources, ‘the languages we create, the social practices we establish, the modes of sociality that define our relationships and so on’ (2011, 139). Their notion of a common comprises the products of immaterial labour (which serve as the foundation for future creations, knowledge and ideas about living) as well as the processes of immaterial production themselves, due to their common, collaborative, and communicative character (2004). 4.3.3. The online biopolitical common Hardt’s and Negri’s common is distinguished by being placed within a re-envisioned biopolitical configuration, blending Marxist critical readings into socio-economic globalisation and understandings of the network(ed) society. We may bring the discussion’s main context under this scope of comprehension. Our time living within and across online settings, connecting with others, creating new knowledges and communication practices or building on the existing ones, generates in proportion with the numbers of interconnected populations a vast informational surplus, which is exploited in manifold ways. Our common interactions translate instantly into social network production, which includes online content and data – both traffic and personal. Informational surplus accrues from direct forms of original and derivative alike user-generated creative and generally cultural contributions (Lessig 2004, 2008; Jenkins 2006; Boyle 2008; Bruns 2008; Hayes 2008; Tushnet 2008; Jamar 2010; Fuchs 2015); from the indirect generation of content in the shape of communities coming together and taking form in shared social, cultural, knowledge exchange and even gaming spaces (Jenkins 2006; Benkler 2006); from ‘irregular, unpaid, precarious, outsourced, crowd-sourced, and click-worked digital labour’ on platforms, such as YouTube, LinkedIn and Pinterest, and through activities that include online reviews, surveys and improving online service performance (for example, reporting spam email) (Fuchs 2017, 71). Furthermore, Cohen (2017) discusses the non-stop production of a ‘biopolitical public domain’ of personal data, being harvested, refined and then distributed across data markets. Taking all this into consideration, there is a great deal of value deriving from endlessly flowing in information surplus, for the content industries (for example, promotion, appropriation of fandom, possible royalties); for the Internet media of all kinds and sizes (infrastructures, online services, content hosts, social media and so on); for corporations, benefiting from unpaid digital labour reducing their wage-sum to therefore increase profits (Fuchs 2017); and, of course, for advertisers. The Internet becomes a most illustrative example of what Hardt and Negri envisage when arguing that ‘labor and value have become biopolitical in the sense that living and producing tend to be indistinguishable’ (2004, 148). This we may take further, in relation to the network society, and analyse down into two different components. The first reflects on Foucault’s biopower and biopolitics conceptualisations. We have already discussed on various instances the connection between biological life and the online setting. The Internet context actualises the dispersal of power across the network; across uncountable infrastructures, knowledge structures, applications and online platforms. At the same time, the neoliberal shift is projected upon this context: states have important online presence and access to network infrastructure control, but the management and government (in Foucauldian terms) of everyday online life is mainly distributed across (and owned by) market forces and private entities. The network incorporates biopower in its (re)production of life; across the architecture of its operations and fundamentally within its makeup of computer code (Lessig 2006), it integrates norms, both social and regulatory, surveillance, optimisation and security mechanisms, in and through its various operations, controlling individuals towards a productive existence and thus forwarding the interconnected human species. Finally, it recreates the contours of political economy, where the horizon of productivity is realised through the production of life – in online terms: the production of information, by which life is otherwise sustained and organised. The second component comes closer to Hardt’s and Negri’s contemplations, in recognition of the link they make between the Internet’s biopolitical production and the common. They use communication as an example to denote how the common is produced and it also becomes productive, by suggesting that we ‘communicate only on the basis of languages, symbols, ideas, and relationships we share in common, and in turn the results of our communication are new common languages, symbols, ideas, and relationships’ (2004, 197). The common denotes a raw material that is ‘not consumed in production but actually increases with use’ (2004, 147). Yet, Hardt and Negri warn that, the same way production of value is understood in terms of the common, where the common has become the locus of surplus value, its exploitation equals to its expropriation. Exploitation denotes ‘private appropriation of part or all of the value that has been produced as common’ (2004, 150), even if that refers to relations or communications that are common by their nature, and results in turning what is common into private property and controlling it. Hardt and Negri also note that most often we focus on conflicts between the common and private property, yet it is equally important to keep the common conceptually separate from the public, suggesting the (negative) example of institutional arrangements aiming to regulate common knowledge and culture (2011).

Rosemary J., Professor, Canada Research Chair, Graduate Program Director of Anthropology in Law & Society (LASO), Socio-Legal Studies (SLST), and Social and Political Thought (SPTH) @ York University; Susannah, PhD Anthropology from University of Georgia, research fellow @ University of Queensland. “Ethnographic Explorations of Intellectual Propertyfree,” Oxford Research Encyclopedias: Anthropology. 27 August 2020. LJS

Just as the extension of the IP into new markets and jurisdictions has enabled the production of new subjectivities, it also has provoked processes of territorialization.7 Such processes may include the inscription, delineation, and valuation of place and regional heritage through legal mechanisms such as geographical indications as well as deliberations over territory, sovereignty, and authority that arise in the extension of regulatory frameworks to new jurisdictions. Most ethnographic work in this vein has engaged with two related processes that accompany such legal change: the (re)signification of product origins and attachments to place, and the authorization of space, territory, and markets that stirs struggles over sovereignty and citizenship. Place, Terroir, Authenticity, and Heritage As markers of natural distinction and cultural difference gained value within global informational markets, IP protections that signified the origins of products were elaborated and extended to new regions. These include older vehicles such as appellations of origin and collective and certification marks as well as new geographical indications (GIs) such as European marks for “typical products.” As marks indicating conditions of origin, these protected designations signify that specific product attributes are a result of the qualities of a particular place and its environment (or terroir). They may also signify social or economic aspects of production, including cultivation techniques, methods of labor, or culturally unique production practices—often asserted to be based on a region’s heritage (which may be quite newly minted). Hailed for their potential to protect biodiversity, foster sustainable economic development, support traditional knowledge practices, and add value to biocultural goods, marks indicating conditions of origin are both a means to secure monopoly rents and vehicles to express identity (Coombe and Aylwin 2011). Ethnographic studies of GIs consider how place-based product protections affect local understandings of identity, heritage, and history. GIs may provide a vehicle for artisan communities, such as producers of clay whistles in Matera, Italy, to assert long-standing, affective attachments to the goods they produce and to guarantee their authenticity (Bortolotto 2010). GIs may also redefine geographical boundaries, notions of authenticity, and conceptions of belonging and indigeneity (Bérard and Marchenay 1996; Grasseni 2016; Ives 2017). In France, for example, where the formalization of GIs under the appellation d’origine contrôlée system dates to the early 20th century, the law is meant to reflect the confluence of terroir and local standards of production. Although the law often registers local consensus on geographic and cultural boundaries, it has also been an important tool for socially reworking them, as excluded producers struggle to obtain membership in the exclusive clubs who control these designations (Farmer 2014). GI protections may provoke assertions of belonging that are at odds with policies valorizing placed- based heritage. For example, bemoaning the fact that in France, GIs are so hegemonic that without a cheese you are deemed to lack a culture, people have nonetheless crafted a sense of place and shared local identity by emphasizing their very lack of the types of products that GI designations protect (Filippucci 2004). Even where attempts to attain GI protection fail, campaigns to demonstrate the heritage status or the regional typicality of a product may transform its cultural and regional significance (Terrio 2014). Thus, unsuccessful efforts in Italy to obtain a GI designation for the Zolfino bean nonetheless transformed the crop from a sharecropper’s staple into a heritage food whose new market value attracted the attention of large, wealthy farmers (Badii 2013). Such efforts often activate deliberations over the meaning and history of place at the same time that they heighten economic reliance upon increasingly distant markets for the continued production of locally authentic products (Grasseni 2014). Marks indicating conditions of origin are often embraced as a means to foster rural development by providing small-scale producers a distinctive edge in increasingly competitive and homogeneous global food markets. The use of GIs may, however, have deleterious social effects on the communities they are meant to serve (Coombe et al. 2014). GIs function ideologically to convey harmonious social imaginaries of territories that integrate production activities, communities, and natural environments, but in practice they enable forms of fetishization that may obscure and support unfair and exploitative labor conditions (Coombe and Malik 2018; West 2012). In India, for example, the GI for Darjeeling tea harnessed discourses of terroir and place-based distinction to fashion a luxury commodity for global markets, but in the process, the exploitative, racialized labor relations of colonial-era tea plantations were further entrenched (Besky 2014a, 2014b). Likewise, attempts to define and enforce GIs may commodify traditions of practice in ways that foment competition and exploitation, thereby eroding feelings of shared social interest and collective identification. In Peru, state efforts to use GIs to bolster artisanal ceramic production led, ironically, to the codification of traditional practices and ultimately their industrialization as rural towns and producers were linked to international markets only to the extent that “native” goods were produced using standardized practices that enabled them to be mass-marketed (Chan 2014). State projects to promote GIs for rural development may favor larger, wealthier actors who are already positioned to take advantage of emerging markets. In crafting GIs for tequila in Mexico, only elite landed farmers possessed the infrastructure and networks to profit from these new origin-based protections, and in the process, both traditional knowledge and traditional terroir were lost (Bowen 2010). Nonetheless, under specific conditions of governance, such marks may enable alternative assertions of value and attachments to place while linking producers and consumers in relations of recognition and identification (Coombe and Aylwin 2011). To these ends, a third generation of certification for place-based goods is evolving to communicate new forms of production and distribution grounded in environmental norms and an ethic of agroecology and socio-natural or cultural reproduction (Coombe and Malik 2018). Local actors may push for place-based marks that go beyond indices of terroir, heritage, or authenticity to capture other aspects of production, such as labor conditions and environmental standards. Farmers and their intermediaries may us n e GIs to build place-based economies that are more varied than any single, legally structured, place-based marketing initiative (Ofstehage 2011). In Bolivia, for example, farmers in the region of Los Lipez worked with NGOs and industry actors to create GI protection for their quinoa in an effort to distinguish the unique qualities of the region’s crop and its ritual origins. This unique mark of origin did not omit other economic avenues for farmers in the region, but became one among many pathways for bringing quinoa to market (Ofstehage 2012). Territorialization: Sovereignty, Jurisdiction, Securitization, and Markets If ethnographic work on GIs has tracked the social and political negotiations over authenticity, heritage, and belonging that are activated by place-based IP protections, anthropologists have also explored how other vehicles of IP protection, such as copyright, patent, and benefit-sharing contracts for the use of traditional knowledge and cultural expression, may prompt political conflicts over sovereignty and jurisdiction. The roots of this anthropological inquiry may be traced to early critiques of state sovereignty over biological resources and its implications for Indigenous peoples and small farmers (e.g., Brush 1993). More recently, anthropologists have explored “the politics of scale” in the creation of national patrimony, which depends upon the usurpation of local traditional arts (e.g., Aragon and Leach 2008 exploring this in Indonesia). Anthropological consideration of such processes as new modes of territorialization gained traction in the 2010s. Bioprospecting, for example, spurs territorialization through the extraction and regulation of plant life. As a long-standing companion to both colonialism and capitalism, it continues to be central to state expansion (Besky and Padwe 2016). Where bioprospecting involves plants and resources territorialized through their globally recognized association with local and native knowledge, as it did in South Africa, struggles over the ownership of patents and the benefits arising from projects to commercialize those resources may provide fertile ground for peoples historically marginalized by the state to assert alternative forms of national belonging (Foster 2017). Industries built upon copying and counterfeit products create marked zones that contain both new goods and new values. In cases where technologies of reproduction and distribution are more powerful than the state economic structures that may constrain them, as they were in Nigeria, piracy transforms the infrastructures through which globalization—as the flow of informational goods and media imagery—takes place (Larkin 2008). The extension of IP into new jurisdictions effects territorialization by demarcating zones of licit and illicit production and distribution. In some cases, this may give rise to counterfeit economies that enable marginalized peoples to generate livelihoods and enclaves of production and distribution, but it may also provoke new forms of state intervention and surveillance. Ethnographic work in Brazil showed how acts of piracy enabled often marginalized actors to gain some control over strategic spaces, even where formal state powers work to control, surveil, and set the boundaries of licit market activity (Dent 2016, 2020). In South Africa, the threat to public health posed by the counterfeiting of medication was used by the state as a rationale to transform drug safety regimes into more territorialized drug security regimes, linking pharmaceutical corporations and state authorities in ways that exacerbated predatory police interventions and encouraged the territorializations of security industries (Hornberger 2018). Piracy also tends to produce new networks that traverse state boundaries, facilitating traffic in cultural goods, and, where technologies of reproduction and distribution are more powerful than state economic structures, affective connections to new territorial infrastructures of global belonging (Larkin 2008; Reinberg 2015).

Laura A., Assistant Professor of Gender Studies, Indiana University, Bloomington; Faculty Affiliate, Center for Intellectual Property Research, Indiana University Maurer School of Law. “Patents, Biopolitics, and Feminisms: Locating Patent Law Struggles over Breast Cancer Genes and the Hoodia Plant.” International Journal of Cultural Property (2012) 19. Pp 379-381. LJS

Responding to the emphasis on an open public domain, critical intellectual property scholarship also offers an alternative conception of a protective public domain.46 Such scholarship is aligned with the theorizing of an open public domain. It similarly advocates the expansion of the public domain by limiting intellectual property (IP) rights, enlarging fair use, and requiring compulsory licensing.47 In contrast, however, scholarship promoting a protective public domain insists upon exceptions for indigenous individuals and groups who have been traditionally excluded from asserting authorial rights over their knowledge, resources, and culture. It is therefore critical of the expansion of a public domain based upon values of sharing and openness, which can produce harm to indigenous peoples. Theorizing of a protective public domain takes into account histories of colonialism and imperialism, while seeking to expand notions of authorship beyond its individualism to fully consider indigenous forms of collective knowledge production and creativity.48 It stresses the need to consider how, given social hierarchies, information within the public domain is not equally accessible and open to all, thus the need for some elements of protection.49 In contrast to an open public domain, a protective public domain challenges articulations of indigenous peoples’ knowledge as raw material and recognizes the inventiveness and dynamism of indigenous traditional knowledge.50 It is also a flexible concept of the public domain. Conceptions of a protective public domain require flexibility in order to provide an adequate balance of protection and access to different forms of indigenous traditional knowledge (e.g., artworks versus medicines) in a variety of geopolitical contexts.51 Coombe thus suggests an “ethics of contingency” recognizing that protection might mean different things to different marginalized groups.52 A protective public domain therefore recognizes inequalities and works to protect indigenous peoples’ knowledge from being exploited as raw material. In contrast to an open public domain model, conceptions of a protective public domain challenge neoliberal, biopolitical modes of governing by placing value upon indigenous peoples’ forms of knowledge and creativity. Normative conditions and discursive framings of free trade and privatization are contested by shifting some control over to indigenous communities. Scholarship in this area argues that free and open sharing of indigenous peoples’ knowledge can be responsible for continuing a legacy of colonial exploitation of their traditional resources.53 Giving indigenous peoples some control over their own knowledge practices is one way to counter this history.54 By granting indigenous communities more control through a protective public domain, neoliberal values of freedom become disrupted. Alternative legal protections are suggested, such as contractual arrangements allowing groups to decide for themselves when, where, how, and to whom they want to grant access to their knowledge.55 For example, models for benefit-sharing contracts are proposed, which would require scientists to give indigenous communities money and resources in exchange for access to and possible ownership over indigenous resources. Prior informed consent agreements are also advocated to allow communities to dictate the terms of granting such access to potentially patentable resources. Indigenous peoples’ knowledge becomes privatized in new ways through these contractual arrangements, yet the primary goal of privatization becomes one of protection, rather than profitability per se. By shifting some control to indigenous communities, a protective public domain produces fissures within neoliberal, biopolitical modes of governing by interjecting an alternative ethic of production. Even when such contractual arrangements bring profits to indigenous communities, these “strategies of indigenous incorporation”56 serve to challenge Western scientific and capitalist logics. For example, benefit-sharing agreements designed around a protective public domain model theoretically engender a space whereby scientists are expected to negotiate and consult with indigenous communities and to recognize the importance of indigenous epistemologies of science, which run counter to Western philosophies of science undergirding new bioeconomies. Theorizing of the protective public domain offers the most potentially liberating space right now for indigenous peoples, but more work is yet to be done. In its current theoretical framing, a protective public domain insufficiently addresses complex gendered social relations. It fails to recognize that many indigenous women have fewer opportunities because of the encroachment of patriarchal models of family and governance into their communities from histories of colonialism and new demands of neoliberal globalization. Little attention is paid to how indigenous peoples’ knowledge is gendered and whether or not benefit sharing agreements serve the interests of indigenous women in the same way as indigenous men.

Laura A., Assistant Professor of Gender Studies, Indiana University, Bloomington; Faculty Affiliate, Center for Intellectual Property Research, Indiana University Maurer School of Law. “Patents, Biopolitics, and Feminisms: Locating Patent Law Struggles over Breast Cancer Genes and the Hoodia Plant.” International Journal of Cultural Property (2012) 19. Pp 372-376. VQ

Patent ownership accompanies novel forms of governing the human body within neoliberal conditions. Neoliberalism, as a set of ideologies and practices, emphasizes privatization and free trade as privileged modes of governance. It is characterized by modes of deregulation that accompany the reduction of the welfare state. It is also beset by increased regulation, in particular, the control and management of knowledge through patent law. This section situates patent law as a juridical tool and mechanism of neoliberalism where biological and genetic material are privatized for the development of capitalist production. This section also positions patent law within understandings of biopolitics and gendered inequalities. Within the architecture of neoliberalism, nature becomes a public good best removed from the public domain and privatized in order to ensure its management through free market mechanisms.5 For example, cell lines are extracted and isolated from the public domain of the human body, and then patented, giving owners exclusive rights to temporarily control the uses of their invention. Such privatization places human bodily tissue into global circuits of capital, where cell lines and DNA sequences take on value as biocapital.6 Patent law also becomes intimately tied to and generative of logics of free trade. This is most clearly articulated by the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights. The Agreement links global trade explicitly to the international harmonization of intellectual property rights among member states. Member states are required to uphold the intellectual property rights of other member states or face restrictions on trade relations. The analytics of patent law are also grounded in an ironic logic whereby temporary monopoly protection is said to ensure the free trade and exchange of biological and genetic material by promoting innovation. As the normative legal argument goes, granting patent rights encourages further innovation through the public disclosure of scientific inventions.7 A world without patent rights would mean an economic terrain in which companies kept their innovations as trade secrets and failed to produce public goods sufficiently. Inventors are thus given temporary, exclusive patent rights to control the use of their inventions. In return, they are required to unveil their scientific work by filing a patent specification document, which is open to public gaze. Patent filings therefore become productive features of the scientific process. Scientists, with the help of their attorneys, refer to specification documents to learn new pathways for scientific research and/or to confirm the novelty of their findings. Further scientific knowledge is thus generated, and additional patent rights are assigned to inventions that are entirely new or improvements thereof. Once patent rights expire, then inventions flow back to the public domain and are freely open for use by others. Patent ownership is therefore justified through a market-mediated, temporal trick whereby short-term monopoly protection is said to encourage a future of freely traded materials within the public domain. Critical intellectual property scholars, as will be discussed, contest this normative justification and argue that expansive patent law rights actually stifle the free exchange of creative ideas and materials. Nevertheless, patent law rights are espoused as both a product and generator of neoliberal economic values of privatization and free trade. This is important for understanding patent law as a technology of biopower designed to function as a norm signifying value. Biopower offers a theoretical framework for understanding contemporary forms of governance within a neoliberal order that includes patent law ownership. Foucault argued that, starting in the seventeenth century, mechanisms of power shifted from the sovereign authority to take a life toward the power to foster life.8 Power became directed at administering and regulating the biological existence of populations. Bodies became subject to “techniques of power”9 through diverse institutions such as schools, churches, hospitals, and the family, which were aimed at managing populations for the development of capitalist production. Power therefore, according to Foucault, transformed into a discursive power that “comes from everywhere.”10 As a consequence, Foucault claims that the juridical system of law gave way and shifted to law as norm. This does not mean that the law is no longer an important site of inquiry. Rather, the law, whose task is to govern life, begins to operate more as a norm and “the judicial institution is increasingly incorporated into a continuum of apparatuses (medical, administrative, etc.) whose functions are for the most part regulatory.”11 This later point is important for our purposes. Law remains a crucial site of analysis to consider within biopolitics. Yet, attention must be paid to the discursive and regulatory power of the law and how it is embedded. How does patent law act as an ethico-legal norm privileging certain forms of knowledge production, bodies, and subjectivities over others? How are patent law, scientific knowledge, and the life science industries co-constituted? How is patent law employed as a technique to optimize and manage life in the service of neoliberal capitalism? These questions begin to frame a feminist analysis of patent law that opens up space to consider the multiple and contradictory implications of patent law on different women’s lives. Critical science studies scholars articulate a more contemporary understanding of biopolitics, which help frame and illuminate patent law. Science in the twenty-first century is a technomedicine and technoscience shaped by capitalization and intellectual property rights.12 It involves the “molecularization”13 of the body where cells, tissues, and DNA are made visible, isolated, stored and can be transferred to others through new circuits of biovalue mediated by patent ownership. Technologies of the self have shifted to become “technologies of optimization” that not only govern bodies, but also “change what it means to be biological.”14 New hierarchies structured through an “informatics of domination”15 no longer stress the perfection of bodies, but rather their optimization. As individuals are obliged to optimize themselves, patent law incites innovations for them to take advantage of. Patent law therefore facilitates the optimization of nature for circuits of capital, so that individuals can optimize themselves. Human beings thus become “nature’s author or inventor”16 as they seek to generate and utilize technoscientific inventions. New forms of subjectivity also emerge as individuals engage in self-techniques to manage their risk and susceptibility for disease. For example, individuals are compelled to take advantage of genetic counseling and screening. In so doing, they form new biosocial relations of “somatic expertise”17 with medical professionals, while also developing new modes of genetic and biological citizenship by lobbying politicians to support genetic causes. Such relations and modes of citizenship also work to contest patent law ownership and its privileging of scientific expertise, as individuals become patent owners themselves (e.g., PXE International) and/or file legal claims against patents on their human tissue (e.g., Moore18). Furthermore, such technologies of optimization are sustained by a “moral economy of hope”19 where the promise of future innovation to treat and/or cure disease is used to stimulate further innovation. Economies of hope similarly drive the approval of patent law rights. Inventors, in filing their applications, only have to demonstrate a potentiality and promise of industrial application for their creations. Approval of a patent then serves as a promise to investors that the invention is worthwhile to finance and develop. Patent law therefore enables technologies of optimization through discourses of hope and promise. Feminist science studies scholarship demonstrates that contemporary biopolitics is itself highly gendered and racialized. Contemporary biopolitics is now aimed at the individual and enhancing the quality of life. In particular, it depends upon women’s reproductive and intellectual labor. As Rose argues, “responsibility now falls not on those who govern, but on those who are responsible for a family and its members.”20 Although he fails to elaborate, Rose explicitly notes that it is women in particular who are responsible for the medical needs of their families and children.21 In contrast, feminist science studies scholars have produced valuable and extensive insights furthering this point. For example, women are often obliged to take advantage of genetic screening to ensure a “normal” child.22 Women’s bodies also become sources of raw material called upon to “donate” or “gift” their eggs for the advancement of reproductive technologies and stem cell research.23 Bodies are also governed through demands for what might be called “epistemic donations.” For example, indigenous women are often compelled to “donate” their epistemic knowledge regarding traditional plants and healing practices for pharmaceutical research. Such forms of governance may lead to important medical advances that benefit individuals and groups of women. The problem, however, is that individuals are obliged to take advantage of medical technologies to ensure their health without being given the necessary resources in which to do so, such as adequate health insurance and education. Biopolitics is accompanied by neoliberal strategies of governing that have reduced governmental support for public health care, while shifting the burden (and guilt) to individuals.24 Thus, many women are left with fewer options to care for their families. In addition, those women who can afford a range of medical care for their families are obliged to do so, and if they fail to utilize all available options then they are left to blame for burdening the welfare state. Biopolitics is therefore variegated and relational, governing different groups of women in variable ways. As a mode of biopolitical governmentality, neoliberalism involves explicit market calculations as to whose ways of living, being, and knowing are deemed more valuable than others. Neoliberalism, according to Ong, involves “technologies of subjection,”25 whereby political strategies are designed to regulate populations differently in order to optimize productivity. Such strategies are increasingly carried out through spatial practices engaged with market forces. For example, global tissue economies increasingly seek out cheaper forms of reproductive labor by enlisting women from the former Soviet Union, China, and South Africa to donate oocytes for use in fertility clinics and experimental research.26 Thus, the optimization of some women’s bodies is at the expense of other women’s bodies. The United States historically relies on the experimental bodies of women such as Henrietta Lacks from the racially poorest areas of the United States.27 It also depends upon the appropriation of medicinal plant knowledge from indigenous women in India.28 Such practices differ and historically shift, but nevertheless express a continuity of inequality where only certain women’s bodies and minds became sites of extraction. Privatization through patent law may or may not occur in all these instances. Yet, patents can potentially be assigned to products or processes associated with the cell lines extracted from Henrietta Lacks, the chemical compounds derived from indigenous women’s medicinal knowledge, or the embryonic stem cells donated by South African women. Technologies of subjection are therefore at work. Some women’s bodies and minds are treated as raw material necessary for the development of new medical technologies, which may or may not benefit them. Their human tissue (with its genetic information) and/or indigenous knowledge become the subject of patent ownership. Patent law therefore privatizes some women’s bodies and their knowledge over others, while promising innovations that may only be accessible to certain groups. A feminist analysis of patent law therefore must analyze how it is intertwined with technologies of subjection within neoliberal biopolitics. A useful analytical for beginning to develop such an examination is the notion of the public domain.

At the same time as the rise of the gene, intellectual property has “become one of the major issues of our global society” (Stiglitz 2008, 103), as a global system of enforceable temporary monopolies on knowledge was enshrined in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as part of the WTO. This IP system became a key component for business strategies of pharmaceutical companies and other entities operating in the life sciences – including for example the “entrepreneurial university”, which actively uses IP for “rapid commercialization of basic research problems”, enabled for example in the US context by the Bayh-Dole Act (1980) (Rajan 2012, 2; Cooper 2008, 27). This commercialisation of research thrived especially at the intersection with the life sciences, where new “high-risk forms of investment” fuelled these “decidedly entrepreneurial, public-private alliances” (Cooper, Ibid., 27). This thesis argues that in the new political economy of life, IPRs became a central concern – not only for the production of commodities for circulation in the economy, but also in a variety of roles asserting control over knowledge and over participation in this economy on the national and the international level. In fulfilling these roles, it is argued throughout this thesis, IPRs are increasingly contributing to the governing of life, and are negotiating tensions between economic priorities and a new sphere of politics surrounding the geneticinformational conception of life. This new sphere of politics reaches far beyond the life science sector and its commercialised research, as it fundamentally re-shapes understandings of “humanness, illness and health” (Kay 2000, xv). The overwhelming influence of the informational-genetic paradigm continues to profoundly affect the individual’s relation to its own body, rendering the accessibility of genetic information an increasingly important marker of personhood. This thesis argues that understanding this fundamental impact on personhood can provide a new perspective on ongoing challenges to the exclusive commercial ownership of genetic sequences enabled by IPRs. Increasingly, patients and developing countries criticise IPRs as detrimental to their health and are actively challenging exclusive rights on testing kits such as for example the breast cancer test containing the BRCA-1 and 2 sequences in the recent Myriad case (Assoc. for Molecular Pathology v. Myriad [2013]). In a decision that came as a surprise to the biotech sector, this landmark case overturned some forms of gene patents, arguing they contained a “product of nature” rather than an invention. The following chapters point out that this challenge to patentability was enabled by containing the essence of life. The Court however still maintained patentability of cDNA, arguing that it was “man-made”. This tenuous compromise shows IP’s precarious position in this new sphere of politics based on genetic knowledge, and at the same time highlights its continued importance to the industry. The analysis of the confrontation between IPRs and life conducted in this thesis re-reads conflicts as an increasing “problematization” of genetic life for questions of governing (Foucault 1994, 114), and argues that in this context IPRs accommodating and resolving tensions between life and the economy. IP’s relation to genetic material is reinterpreted as a confrontation with biopower, in which IP law is being “governmentalized” and begins to negotiate tensions between different priorities of a new way of governing, instead of simply inscribing sovereign claims of power. This reading relies on Foucault’s notion of a new way of governing, or governmentality, which “set[s] up an economy at the level of the entire state, which means exercising […] surveillance and control as attentive as that of the head of a family over his household and his goods” (Ibid., 207). This returns to a more original interpretation of ‘economy’, which emphasises the fostering of life and well-being as part of this new art of governing (Foucault 1978, 138) – and thus leads to the emergence of ‘biopower’. This pastoral economy focused on the life of the population as an important point of reference: “the welfare of the population, the improvement of its condition, the increase of its wealth” (Ibid., 217), giving rise to particular biopolitical strategies. This new point of reference leads to a governmentalisation of the state apparatus, in which previously sovereign features of power increasingly act as tactics of economic governing. Sovereign aspects of power, such as law, thus become involved in the problematization of life for questions of governing, and contribute to the realisation of a pastoral yet economic fostering of life. This process of governmentalisation thus involves a range of adjustments and tensions for law (N. Rose and Valverde 2010, 543; Elbe 2009, 12), and renders it a central site that contributes to the governing of both life and the economy – accommodating two priorities that exist in some tension with each other (Dean 2010, 120). In an “analytics of power” (Dillon and Lobo-Guerrero 2008, 272), this thesis studies IP’s confrontation with the growing influence of a “genetic dispositif” on the level of conflicting truth discourses over life, in challenges to the control of genetic materials voiced by ‘genetic’ subjects, and in new strategies confronting IP’s relation to life on the national and international level. This analysis reveals that IPRs play a wider variety of roles in this political economy than previously suggested by critiques focusing on IP’s function of the ‘commodification’ of life alone. At the intersection of life and the market, IPRs establish commodities for the trade of knowledge over life, but also play other important roles, for example privileging one vision of life over others and thus contributing to the normalisation of knowledge. Furthermore, they establish and maintain a dividing line of exclusion/ inclusion of participation in the area of IP policy making and in the life science economy, keeping challenges by patients and donors at bay. An analysis of debates on the global level shows the IP regime’s function as a regime of exclusion in its starkest terms. The popular author Michael Crichton once argued “[y]ou, or someone you love, may die because of a gene patent that should never have been granted in the first place” (Crichton 2007) – on the international level, the detrimental effects of IP law are already a very painful and widespread truth (Godoy 2013). But even here, where the influence of donors and patients is still mostly excluded from participation in the development of IP policy, this division is coming under increasing pressure, as new strategies begin to contest this exclusion from within the core institutions of the IP apparatus.

Laura A., Assistant Professor of Gender Studies, Indiana University, Bloomington; Faculty Affiliate, Center for Intellectual Property Research, Indiana University Maurer School of Law. “Patents, Biopolitics, and Feminisms: Locating Patent Law Struggles over Breast Cancer Genes and the Hoodia Plant.” International Journal of Cultural Property (2012) 19. Pp 377-379. LJS

Some critical intellectual property scholarship focuses on bolstering an open public domain. It argues that expansive patent ownership rights are obstructing scientific knowledge production and the fundamental practice of “open science.”32 Scientific ideas and materials formerly in the public domain are now privatized. Scientists are forced to negotiate licensing fees, material transfer agreements, and database access agreements with patent owners. This slows down scientific research, rather than incentivizing it. Stricter patent laws have therefore curtailed the culture of open access and sharing within scientific practice. Scholars point out that patent laws have even restricted access to research ideas and practices for experimental purposes.33 The domain of material and ideas publically available to scientists is thus shrinking and curtailing research, rather than incentivizing it. Scholarship in this area responds to this problem by arguing for expanding the public domain. What is needed is an open public domain that is committed to “a system of open science, where results are shared, criticized and, ultimately, utilized to push forward the frontiers of knowledge.”34 Patent ownership rights should therefore be scaled back in order to promote a more robust public domain where materials and ideas can be freely accessible and open to scientists. Theorizing of an open public domain, however, has its limitations. The first is its uncritical acceptance of neoliberal, biopolitical values and its privileging of a certain type of creativity. Conceptions of an open public domain provide a valuable critique against expanding patent law ownership, but can be read as essentially arguing for a free trade model. Creativity, as the argument goes, is best promoted by encouraging the free exchange of materials and ideas supported by a robust public domain. This is considered an alternative to incentivizing creativity by granting temporary patent law ownership. Open sharing of scientific materials and ideas is said to encourage the exchange of ideas among scientists, leading to more and more innovation. Greater value, they argue, should be placed on bolstering an open public domain versus expanding patent rights. Publicly available science databases are commonly cited as ways of promoting a more open public domain such as the GenBank at the National Center for Biotechnology Information. Sharing of DNA sequence information through GenBank, for example, is based upon an open public domain model and is considered the best way to advance genomic research. Yet, upon critical examination, conceptions of an open public domain emerge aligned with neoliberal, biopolitical strategies. Nature is now optimized through logics of free trade and competition. It is assumed that an open public domain can bolster circuits of biocapital even further than patent ownership, ensuring the unrestricted trade of human bodily tissue for scientific experiment and commercialization. This engenders more scientific innovations for individuals to choose from in their self-governing efforts at optimizing themselves. Theorizing of an open public domain might question the privatization of scientific ideas and materials, but it does not challenge market logics entirely. In fact, it relies faithfully on market values of freedom and openness to promote innovation. Yet, only certain forms of creativity emerge and prosper in such an economic terrain, primarily an inventiveness that remains mediated by and through market mechanisms. Privatization through patenting is also not entirely abandoned; it is just deferred. Proponents of an open public domain seem more concerned about patent ownership rights locking up creativity at the temporal stage of its initial inception. An open public domain is meant to incentivize a market-mediated creativity that will eventually lead to patentable products, thus patent law ownership remains sought at a later stage. Uncritical acceptance of values of free trade and privatization unfortunately cloud a discussion of inequality, namely who has access to patented scientific technologies and patent ownership rights. Second, conceptions of an open public domain also fail to account for modes of power and inequality. Values of openness and sharing can be important in facilitating scientific discovery and access to needed medical care and technology. Yet, such cultures of open science have not been available to everyone. In terms of scientific discovery, female scientists have historically been marginalized within science. In particular, lesbian women and women of color scientists have been excluded from the free exchange of scientific ideas and materials due to continued discrimination against them in the science professions.35 Scientific cultures of sharing and borrowing have also led to the violent exploitation of indigenous peoples, their knowledge, and their lands.36 Given these histories and their contemporary residues, only some female scientists may benefit from an open public domain, and indigenous peoples may in fact be harmed. Patent inventorship and ownership itself is also structured by histories of gendered and racialized exclusion. Women have historically been less likely than men to be U.S. patent owners.37 Laws of coverture, cultures of domesticity, and bias in the U.S. Patent and Trademark Office partially explain this inequity.38 Additionally, the majority of patent owners who are female have historically been middleclass white women.39 Histories of slavery and Reconstruction-era laws preventing people of color from pursuing certain occupations may explain why fewer women of color own patents than white women.40 Unfortunately, women continue to lag behind men in terms of patent ownership today. A 1995 report shows that female scientists hold fewer patents than male scientists in both the academic and commercial sectors.41 By remaining faithful to the free trade of scientific ideas and materials to encourage future innovation, an open public domain model fails to recognize gendered and racialized relations of power structuring technoscientific production and patent ownership. Third, an open public domain model obscures recognition of gendered and racialized modes of knowledge production, thereby reinforcing Eurocentric, masculinized styles of thought. Intellectual property law was historically justified through metaphors of men giving birth to wisdom and knowledge.42 These metaphors drew upon and contributed to the collusion of masculinization and whiteness with rational knowledge production. Male intellectual labor was privileged over the mere bodily capacity of women’s reproductive power.43 Patent law is thus historically embedded within explicit gendered discourses privileging the mind as associated with men, over the body as linked to women and people of color. This mind/body dualism persists within contemporary patent law. Dan Burk argues that the distinction between tangible and intangible property within intellectual property law means that it is fundamentally about protecting the original idea of the author and inventor.44 Extending these arguments further, I would suggest that patent law, in protecting intangible ideas, places value upon scientific creativity characterized by reason and rationality, which are epistemologies associated with masculinization and whiteness.45 An open public domain thus fails to recognize that the creativity it seeks to promote is always and already gendered and racialized. Its attention to market-mediated creativity also obscures the importance of and lack of protection for practices of indigenous peoples’ knowledge.

Eva, phD candidate at the University of Sussex. “Intellectual Property and the Genetic Dispositif of Life: The Changing Role of Intellectual Property Law in Governing Participation and Knowledge in the Bioeconomy.” Submitted for the Degree of Doctor of Philosophy University of Sussex, May 2015. Pp 141-144. LJS

Kerr points out that rights and obligations are already contained within the concept of citizenship, understanding “citizenship as a set of inter-linked processes of inclusion and exclusion of individuals based on the allocation of entitlements, obligations and immunities, which depend upon notions of their contribution to society” (Kerr 2003a, 45). However, participatory rights are not the same for experts and citizens. Experts are involved in patients’ decision-making on the personal level (with regards to genetic testing or participation in biobanks) and also contribute to policy-making. In contrast, patients or citizens “are not considered to be sufficiently competent to make a significant contribution to this [policy-making] process. Their rights in this arena are therefore limited, but their responsibilities for self-education and self-surveillance remain” (Kerr 2003b, 221). This division between citizens and experts can be seen for example in the structures of UK Biobank, in which the role of the citizen was set up as “one of self-surveillance and information provision to clinicians rather than as members of any independent overseeing body” (Ibid., 218; see also discussion in Dickenson 2013, 187). In contrast, some other governments consult citizens, for example for Denmark’s biobank or in EU policy making, where patients “help [...] formulate research and ethics policy” (Heath, Rapp, and Taussig 2004, 165; see also discussion at the beginning of this chapter). At best, the involvement of patients/ citizens stretches towards this consultative role, while their general responsibilities have increased, including self-surveillance, involvement in research activities, and the donation of information and samples. The divide between the role of the citizen and the realm of science and the bioeconomy is maintained by institutionalised specialist knowledge, in spite of patients’ increased expertise of their own conditions. Rose and Miller point to the constitutive role of expertise in “advanced liberalism”, where they enable the economy of governing as little as necessary by maintaining the public/private divide (N. Rose 1993; Miller and Rose 2008). In this, experts fulfill a double function: on the one hand “[experts] would ally themselves with political authorities [...] translating political concerns [...] into the vocabulary of management, accounting, medicine [...]”, while also “[o]n the other hand, they would seek to form alliances with individuals themselves, translating their daily worries [...] into a language claiming the power of truth, and offering to teach them the techniques by which they might manage better [...]” (N. Rose and Miller 2010, 206). The discussion in the previous section on the subversive potential of biopolitical challenges showed that this use of the language of truth can contain the potential for challenge to the political discourse, but it also instils “self-regulatory techniques [...] in citizens that will align their personal choices with the ends of government” (Ibid.). As the previous chapter argued, IP normalises specialist knowledge and elevates a particular vision of life over other, more complex versions. In addition to this, the area of IP law needs to be understood as a very specialist area of knowledge itself, which has high entry barriers contained in specialist legal knowledge of IP procedures and in high costs for registration and enforcement of rights. These requirements make it necessary for IP holders to be highly organised and to have sufficient funds for the maintenance of their rights. Specialist lawyers are often required for the actual registration procedure of IPRs – which, in a similar way to medical experts, translate the applications of individuals “into a language claiming the power of truth” and also work with authorities overseeing the area of IP policy, translating policy preferences into the language of IP management. These structures align choices over directions of research with the ends of the IP system – through “self-regulatory techniques” incited by patentability criteria. These criteria ensure the economic utility of research outcomes and enable IP to “govern at a distance”. The specialist area of IPRs thus can be understood as fulfilling the function of experts in the governing of the problematization of life, translating concerns and inciting appropriate behaviour of subjects. In this, IPRs are also instrumental in maintaining the division between the public area of direct government intervention, and the private area in which the priorities of governmentality “govern at a distance”. Criteria for economic utility of research conduct the conduct of IP holders. But importantly, the high hurdles for participation in the IP regime towards all other subjects need to be understood as part IP’s governing of life as well. Examples of challenges by active “biological citizens” show that they are either given the option of using IP themselves (as in the case of PXE), or of participating in a research project by signing a blanket consent form transferring all rights – and thus being entirely excluded from IP. In this way, IP continues to structure the participation of “active” patients in decisions on the further use of information derived from their donation, especially for economic purposes – thus shielding this area from challenges posed by active citizens who may seek to use genetic information for other purposes. This is where the tactical dimension of IP’s role becomes apparent, which maintains the operation of economic circuits of exchange while challenges based on genetic conceptions of life are being kept at bay. The increasing relevance of genetic knowledge as part of the genetic dispositif also intensifies the tactical dimension of this division. IP’s role establishing control over research agendas and economic use of donations needs to be interrogated as a separate power exercise to that of the “commodification” of life. The increasingly tactical use of IPRs as a regime for exclusion from this particular domain is especially obvious in biobanks, where rhetoric emphasises altruistic contributions. Here, IPRs undoubtedly continue to separate the use of donations by the biobank from the sphere of influence of the “biological citizen”. The emergence of new justifications for this exclusion is especially telling, showing that IP is engaging with new demands by patients. Kerr points out how this division is presented as being in the public interest: “In these discussions, the public’s interests (to better drugs and diagnostic tests) are to be secured through the entitlements of the private sector to own genetic knowledge and the public’s obligation to facilitate this by co-operating with research” (Kerr 2003a, 48). The more frequent reference to research as being in the interest of public health shows that IP is responding to new priorities that otherwise would challenge its legitimacy – but this response also has subversive potential. While IP’s intervention continues to ensure the exclusion of direct interferences by “active” citizens in research agendas and in the economic use of samples, it also opens a debate about IP’s relation to life and health that had previously been deemed “settled” (Rajan 2006, 64) by bioethical arrangements outside of IP. This leads to a contestation of IP’s legitimation within a new frame of reference, which is explored in the next sections and the next chapter. Debates about the role of ‘research patients’ show how IP negotiates the demands of patients as a regime for exclusion, encouraging contributions to research but not granting broader rights of participation implied by notions of ‘citizenship’. This is then contrasted with new approaches to IP in citizen’s science projects, which depend even more on the motivation to contribute to research.

Matthew, University of Essex, UK. “Roberto Esposito and the Biopolitics of Property Rights.” Social & Legal Studies 2015, Vol. 24(3) 381–398. LJS

The importance of theories of property and the subject for legal theorists tends to be presented as a philosophical justification for legal rights of ownership. If, as many have argued, the structure of subjectivity justifies a particular model of property relations, then the concept of the subject provides a frame of reference by which questions of property rights can be validated or critiqued (consider the way that Locke’s metaphysical position on freedom allows him to analyze the practice of slavery, e.g. Locke, 2003: 109–110). Esposito allows us to frame the matter in slightly different terms. His intervention is not so much interested in whether an abstract understanding of subjectivity accords with the reality of private ownership claims but rather in the way in which relationships and processes of ownership within society construct our political and legal subjecthood. In other words, one can draw from his approach a reversal in the chain of logic, from the idea of the subject grounding the law of property to the law of property producing some of the constitutive elements of our political and legal embodiment. Of course, such an approach demands that we reject the notion of a subject preceding its engagement with property relations. It is therefore a theory that responds to critiques of the likes of Radin, which point out that her analysis fails to fully appreciate the extent to which personal claims to property (e.g. the way in which ownership of housing supports one’s personhood) are already socially determined, thus lending her theory a pervasive conservatism (Schnably, 1993). Esposito’s work on biopolitics – principally contained in his three books Communitas (2010), Bios (2008) and Immunitas (2011) – is predicated on a study of a tension within political society, which he traces to the etymology of community. Esposito (2010: 3–4) focuses on the Latin word communitas and its relation to the adjective communis, denoting that which is shared or public, as well as the term munus, which is traceable to the notion of obligation. His philosophical starting point with community is therefore its ideational heritage. He begins tracing this lineage by describing a collective bound not by a positive unifying element but by an unreciprocated duty or debt. In drawing out the philosophical implications of this association of community and debt, Esposito avoids the familiar Hobbesean and Hegelian configurations of polity and identity. This constitutive duty is not the rationalization of community’s incorporation into a sovereign, nor a process of intersubjective self-realization. Instead, duty delineates lack because it is precisely pure duty, that is, what is given is not to be replenished through contractual reciprocity or reconciled within an economy of exchange. Community is instead determined by alterity, because it is founded not on reciprocal rights and entitlements but on non- reciprocal duties to others. Community does not grant the subject autonomy and identity, but instead ‘that void, that distance, that extraneousness that constitutes them as being missing from themselves’ (Esposito, 2010: 7). Here, the subject is not moulded and protected but is displaced at its very inception. So any basis of the proprietary subject, and thus of property itself, is decentred in the radical impropriety of community, its underlying lack of property and possession (Esposito, 2010: 6–7). This is not, however, a romantic picture of community. It is unstable and uncertain. The impropriety of community denotes danger, as without proprietary boundaries the subject is vulnerable to its own dissolution, ‘the idea of community is felt as a risk, a threat to the individual identity of the subject’ (Esposito, 2013: 49). Esposito proceeds to identify the response to this tendency towards disintegration and does so with a sustained study of communitas’ negative, that is, immunitas. Immunitas refers to a protective structure that exhibits precisely the opposite characteristics of communitas, such as autonomy, determinacy and independence. Many of the features of modern political and legal philosophy can be seen as expressions of immunitas. The rule of law, the ascen- dance of the individual and the rationality of sovereignty are all expressions of a protective immunitary logic predicated on the absence of constitutive debt or duty. This does not entail the addition of protective apparatuses being assembled ‘on top’ of community but instead a contortion of the structure of community itself, whereby it constitutes itself by incorporating the characteristics of its own negative (Esposito, 2008: 52). There is, therefore, a curious structure of constitutive self-reference here, in which an entity expresses its own opposite as a way of solidifying its autonomy and ensuring that its identity is not determined extrinsically. For example, to take sovereignty as a paradigmatic example of a modern political con- cept carrying an immunitary function, one can appreciate that its underlying essence and purpose as a concept is as the entity that owes nothing, that is not determined by or depen- dent upon something other. Moreover, the function of sovereignty is to preserve (natural) life against its inevitable self-destruction by separating out a transcendent, constitutive site of its negative, the (political) sovereign, thus constituting the modern state (Esposito, 2008: 58). We can therefore understand Esposito’s (2011: 9) seemingly counterintuitive claim that ‘immunity constitutes or reconstitutes community precisely by negating it’. As well as operating at the level of the state, the same logic is also apparent in the modern rights-bearing individual (Esposito, 2011: 24). 4 The structure of the legal subject enables it to be situated in society in a manner that is distinctly self-referential; the individual is constituted by the rights that entrench his/her autonomy and at the same time the individual is doubled back such that he/she can possess those rights. In other words, it is constituted precisely by the fold between a subjective element that exercises ‘dominium’ over its objective counterpart (Esposito, 2012: 11). This immunitary logic manages to empty the property–subjectivity relation of any sort of constitutive duty. It is here that we begin to encounter the crucial significance of property to modern, immunitary politics, and in particular, one sees a clear reflection of Locke. Along with sovereignty and liberty, property is a key category that embodies an immunitary logic within modern political philosophy. In fact, it plays a special role in this respect, as it signals the location of immunitary principle internally within the subject itself. This immunitary subject is determined by its folding back over itself, that is, its capacity to ‘own’ itself and consequently to fortify its sense of self through the ownership of exterior objects. Furthermore, just as sovereignty allows a political community to isolate itself from its outside, property allows the individual to isolate himself/herself from other people. This claim is not merely empirical, in the sense that private property holdings physically separate us from each other but is, moreover, ontological. The logic of prop- erty allows the subject to understand itself as its own autonomous entity. Whilst this conflation of ‘being and having’5 articulates a broadly Lockean variant of property rights, an inversion of part of Locke’s logic must be noted. Whereas in Locke, the privatization of property is a natural consequence of the subject’s autonomy, what is clear from Esposito’s analysis is a reversal of these terms: the subject is an effect of prop- erty. It is the immunitary logic of private property that separates the individual and allows for the experience of freedom and selfhood. Describing subjectivity through empty tautologies such as ‘I am myself’ is symptomatic of subjectivity being constructed through subject and object, person and thing, at once. It is also important to understand that these immunitary practices do not exist to replace prior expressions of the munus. Immunization is instead a protection of community from its own dissolution, ‘preserv[ing] it through the negation of its original horizon of sense’ (Esposito, 2008: 52). What unifies the immunized community is common separation, resulting from the law’s general protection of individuals’ possessive capacity, whether exercised over their intangible rights or, by extension, their material property (Esposito, 2011: 25). Finally, whilst this split structure of the subject is posited as essential to modernity (Esposito, 2008: 55), it is important to understand that its exis- tence is by no means exclusive to the period. For instance, in his recent work, Third Per- son, Esposito (2012: 76) traces the Christian and Roman origins of a notion of personhood defined by ‘the irreducible difference that separates the living being from itself’. What is particular to modernity, however, is the ascendance of immunitary mechanisms to the centre of political and legal ideas.

A coalition composed of the ACLU and several women’s health advocates has launched a powerful and valuable campaign in support of women’s rights to health. Yet, the case provides a limited intervention in support of women’s health because of its biopolitical framing and appeals for an open public domain. Addressing this limitation should not be understood as a criticism of the actors challenging Myriad’s patents. Their work is an important act of feminist solidarity, mobilization, and resistance to the law. Rather, it is a critique aimed at the law’s power to codify dissent into its own language and force oppositional discourses into narrow parameters.67 The plaintiffs filing the complaint and advocates submitting amicus briefs are thus compelled to make their arguments within an acceptable language intelligible to the law, a language of neoliberal, biopolitics and an open public domain. Centered on the metaphor of genes as information, the initial 2009 ACLU complaint argues that Myriad’s BRCA1 and BRCA2 patents restrict the flow of information regarding breast cancer research. Women are prevented from receiving genetic information regarding their susceptibility for the disease because testing can only be done through Myriad laboratories. The complaint points out that many women, particularly women of color, cannot afford the testing. This is because patent law provides Myriad with a temporary monopoly over breast cancer testing involving BRCA1 and BRCA2 genes, allowing Myriad to keep costs high and to be selective in the types of insurance they accept from patients. The legal complaint also argues that gene patents restrict information sharing among researchers, precluding them from developing alternative tests. Female patients at risk for breast cancer are unable to obtain more meaningful genetic testing, and female scientists are hindered from doing breast cancer research. Thus, women’s labor and participation (and health) in the bioeconomy is curtailed. The ACLU argues therefore for overturning genetic sequence patents and keeping them in the public domain. BRCA1 and BRCA2 gene sequences should not be patented, and should remain freely available in the public domain for scientific research. Similar arguments are made in the initial amicus briefs filed on behalf of the plaintiffs. A coalition of women’s health advocates assert that gene patents “prevent women at risk for breast cancer and ovarian cancer from obtaining the information they need about their own bodies to take steps to improve their health outcomes, and possibly save their own lives and the lives of their children.”68. Thus, they argue, it is critical that genetic sequence “knowledge and information are maintained in the public domain.”69 In developing a feminist analysis of patent law, one must think carefully how this case leaves neoliberal, biopolitical values unchallenged. Contemporary biopolitics, as discussed above, obliges women as the primary caretakers to engage in technologies of optimization for themselves and their families. Mechanics of neoliberal, biopolitics argue that patent law is crucial for providing new medical technologies to assist women in the self-management of their health. The ACLU case disputes such claims regarding patent ownership, while leaving biopolitical assumptions intact. The ACLU complaint argues that gene sequence patents actually prevent women from making decisions regarding their health and the well-being of their families. Myriad’s patent ownership rights enable the company to maintain a monopoly control over breast cancer research and testing. Populations of women therefore become regulated differently through legal “technologies of subjection” as high costs and insurance restrictions mean that only some women at risk for breast cancer can obtain testing.70 The case therefore argues that excluding gene sequences from patentable subject matter and placing them in the public domain would promote women’s right to health by giving them alternative testing technologies and better breast cancer research. The case however does not go far enough to challenge the styles of thought driving contemporary bioeconomies. The goal of the case is to facilitate women’s access to genetic testing, thus it reinforces biopolitical obligations for women to donate bodily tissues and utilize medical technologies. Biopolitical values are thus simultaneously challenged, while also being upheld. The legal complaint and amicus briefs make it clear that the plaintiffs are not against patents entirely. In fact, they explicitly agree on patents for genetic testing innovations. What they disagree on is patents over DNA sequences. Foundational to their legal claim is an open public domain model, one in which patent ownership is not suspended, but merely temporally deferred. Faith remains in a neoliberal model of free trade and competition. The ACLU engages within an economy of hope, placing their faith in an open public domain where freely accessible BRCA1 and BRCA2 genes will engender research and genetic testing alternatives, while reducing costs and increasing availability for women to receive testing. The foundational assumptions of the case therefore remain within modes of biopolitical governance. Its aim is to give women more testing alternatives, further entrenching women within a field of biopower compelling them to undergo genetic testing and assessing their potentiality as “pre-patients” for breast cancer.71 Ensuring alternative genetic tests for breast cancer is a worthwhile goal. Concerns over equality and access to such tests continue to be salient. Yet, women are obliged to seek genetic testing within an inequitable terrain that fails to provide the material resources for all women to receive such testing. It remains unclear if testing technologies will in fact materialize once Myriad’s gene patents are invalidated. Even if more testing options do become available, there is uncertainty as to whether or not women will have adequate insurance and levels of income to take advantage of them. It is also unclear if more testing options will lead to more meaningful information for patients and better practices of genetic counseling. Neoliberal, biopolitics governs the health of populations through narrowly constrained choices involving limited technologies. Resources are devoted to genetic screening, while cancer causing carcinogens remain within the very cleaning products and food supplies women consume on a daily basis. In other words, Western epistemologies of science emphasizing genetic research are upheld through normative scripts of scientific knowledge production, while basic public health initiatives are not prioritized. Therefore the ACLU case, while admirably striving for increasing genetic screening technologies, remains within a field of biopolitics regulating women’s bodies and labor within an uneven terrain. Women’s rights to health and conditions of labor continue to be constrained.