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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 81-86. LJS

The second transformation integrated this genetic account of ‘life’ into the economy, in “the transformation of life into value, into the form of commodity and capital, which is taking place under the globalization of capital” (Dillon and Lobo-Guerrero 2009, 2). This transformation was aided by the informational paradigm, which made the genetic code easily transferrable to the economic sphere, in a proliferation of various “bioinformatic artifacts” (Thacker 2005a, 52). Cooper argues that this merging of the life sciences and the economy was further intensified by their “common ambition to overcome the ecological and economic limits to growth associated with the end of industrial production, through a speculative invention of the future” (Cooper 2008, 11). This unlocking of speculative value, she points out, is part of the neoliberal financialization of life - which does “not so much [seek] the generalized commodification of daily life” but in a departure from the previous liberal model rather “installs speculation at the very core of production” (Ibid.). Cooper highlights IP’s central position in this neoliberal financialisation of life using the example of the contested patentability of pluripotent stem cells, which contain the potential of developing into virtually any cell in the human body. In contrast to the emphasis on the commodification of life, she argues that the patenting of stem cells does not aim at establishing “an exchangeable equivalent” value, but rather lays claim to “a self-regenerative surplus value, a biological promise whose future self-valorizations cannot be predetermined or calculated in advance” (Ibid., 148). This turns “biological life […] into speculative surplus value” (Ibid.), and results in an unprecedented preoccupation of IP law with “the ontological problem of our humanness” (Ibid., 146). In this neoliberal economy of speculative surplus value derived from biological life, the field of IP law has emerged as a central site establishing the control of intellectual (potential) value – life’s “future powers of emergence” (Ibid., 190). However, while highlighting this particular relevance of IP for the neoliberal economy, Cooper does not question the relation of IPRs to different genetic conceptions of life in more detail. As IP law becomes fundamentally involved with defining the essence of “humanness” it also normalises predictable informational-genetic conceptions of life at the expense of complexity and environmental influence (see chapter IV). Thus IP contributes to the governing of knowledge and manages tensions between complexity and control in a neoliberal economy. This thesis argues that the emphasis on IPRs and their role in the appropriation of surplus potential value renders them central to the question of the governing of life, where they for example accommodate the challenge of genetic complexity while they also ensure the continued function of economic exchange. The following chapters approach the question of the governing of genetic life on three different levels in a framework that conceptualises this confrontation as an encounter with biopower. Of course, this thesis does not seek to argue that IPRs are not generating commodities for trade, but finds that the problem with IP’s relation to life goes far beyond this function, and rather involves questions of the normalisation of certain types of knowledge and managing challenges to the exclusive power over this knowledge. This analysis re-evaluates the role of law at the intersection of life and the economy using the understanding of an increasing governmentalisation of IP law. The conceptual framework for analysis traces tensions between IP and the productive capacity of life in three different ways. The use of this perspective can show how tensions created by a neoliberal economy of life are met by a changed “responsive” role of law within neoliberal governmentality, in which a deregulation of economy paradoxically caused “regulatory activities of government [to become] hyperactive” (Martin 2011, 271; see last section below). 2.3. Analysing IP’s role(s) in governing ‘life’ - A conceptual framework The two transformations of life into an informational-genetic code and of life into value thus have resulted in IPRs’ increased importance for the economic circulation of life, but also rendered it more central to questions of the governing of life. Both these developments can explain increasing challenges to IP in the name of life, as the growing influence of knowledge over life leads to contestations over its control by ‘genetic’ subjects, while IP’s role in the financialisation of life continues to increase the economic relevance of this control. IPRs have thus become a central site of negotiation of tensions in what Rose terms new “economies of vitality”, where “biopolitics [have] become inextricably intertwined with bioeconomics” (N. Rose 2007b, 6). The question of the government of life thus intensifies not only the relevance of genetic knowledge of the individual and the population, but its relation to the economy. This gives rise to a novel political field that traverses traditional divisions between biology and economy, and between the national and the international as “transnational flows of knowledge, cells, tissues and intellectual property are coupled with local intensifications and regulated by supranational institutions” (Rabinow and Rose 2006, 215). IPRs are a central “power relation” at the intersection of this emerging transnational “economy of vitality”, and the genetic dispositif, and this thesis argues that their function at this intersection needs urgent attention beyond the focus on their role in commodification. The roles of IPRs within this economy and the challenges they are encountering will be analysed in the coming three chapters, which argue that in their confrontation with genetic conceptions of life, IPRs are undergoing a process of governmentalisation in which they are becoming a tactics of government. The chapters investigate IPRs’ exposure to the problematization of life on three separate yet connected levels, in an “analytic”, which seeks to “[detail] the operational logics, forces and dynamics at play in a specific configuration of power relations” (Dillon and Lobo-Guerrero 2008, 272). IPRs are here treated as “epistemic objects”20 that are “constituted through practices of power” (Lobo-Guerrero 2011, 9). They for example reflect struggles between scientific truth discourses, and are involved in and challenged by the formation of new responsibilities and duties. This thesis interrogates contestations of IP as an exposure to biopower and its productive logic as a part of govermentality. A conceptual framework for analysis accounts for the ways in which biopower problematizes life for questions of governing, following Rabinow and Rose’s rigorous examination of biopower’s relation to a neoliberal economic context, specifically with regards to informational genetic conceptions of life and their productive capacity. They point out that at its basic level, the governing of life (or the engagement with biopower) encompasses a “configuration of knowledge, power and subjectivity” (Rabinow and Rose 2006, 212). In a definition of biopower that is “not trans-historical or metaphoric, but precisely grounded in historical, or genealogical, analysis” (Ibid., 199), they state: “the concept of biopower designates a plane of actuality that must include, at a minimum, the following elements: [1] One or more truth discourses about the ‘vital’ character of living human beings, and an array of authorities considered competent to speak that truth. […] [2] Strategies for intervention upon collective existence in the name of life and health, initially addressed to populations that may or may not be territorialized upon the nation [….] [3] Modes of subjectification, 20 through which individuals are brought to work on themselves […] by means of practices of the self, in the name of their own life or health [….]” (Ibid., 197). This thesis uses this constellation of elements involved in the exercise of biopower as a framework structuring the analysis of the conflicts and contestations of IP’s relation to life in order to grasp the productive capacity of the political sphere surrounding genetic conceptions of life. The following chapters analyse the problematization of life and the role of IP in the governing of life on the level of truth discourses, modes of subjectification, and strategies for intervention. This thesis does not argue that this analysis will show that the IPR apparatus changing beyond recognition or undergoing a radical overhaul – it rather focuses on a persistent area of debates about legitimacy and reform of IPRs’ relation to life and health. Challenges giving rise to small changes and surprising developments that are not explained by the question of ‘commodification’ can thus be reinterpreted as part of a process of accommodation to demands produced by a new point of reference: molecular life. IP’s involvement in the definition of truth over life shows how the IP system attempts to accommodate the overwhelming influence of the informational genetic dispositif while still ensuring its patentability, in an otherwise inexplicable US decision against the patenting of certain information derived from human genetic sequences (Assoc. for Molecular Pathology v. Myriad [2013], chapter IV). The relation of IP to the subject can be analysed with reference to demands incited by a new “somatic ethics” (N. Rose 2008a) or notions of “biological citizenship” based on genetic conceptions of life (N. Rose 2007b). These are shown to contest options for participation in the bioeconomy but also to work alongside the IP regime, as subjects are encouraged to voluntarily contribute to research but are prevented by means of IP transfer from any further participation in the use of results (chapter V). On the international level, the question of participation appears even more starkly, but the exclusionary function of the IP apparatus is also increasingly challenged by means of the right to health and within Global Health agendas. These new strategies for intervention are explored in contestation of IP’s centrality to an economy deriving value from life from different peoples across the globe (chapter VI). Thus, while there are of course many ways in which IPRs are still representative of interests of sovereign power and enforced by means of disciplinary power, it is shown that they have several roles to play – and that these roles are undergoing change as they are ever more centrally involved in the governing of life. The last section of this chapter explores in more detail how an understanding of the productive capacity of a political sphere of life can trace changes in the previously entirely sovereign apparatus of law. This understanding of the governmentalisation of law departs from some conceptions of law in Foucault’s work, and advances the analysis of law’s function in governmentality by arguing that its operation as a “norm” (Ewald 2010, 146) entails it becoming a “tactics” (Foucault 2000, 211; Odysseos 2010, 755; Sokhi-Bulley 2013) of government, ensuring the right disposition of things – especially at the intersection of life and the economy.

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 16-18. LJS

The analysis of IP’s exclusionary function connects the international and the national level of IP law, with particular attention to the US IP system. This reflects the unique connection between the national and the international level contained in the current IP system. Here, the TRIPS agreement sets minimum standards on the international level, but their implementation depends on the particular national legal system – thus giving rise to national variations within an internationally guaranteed framework. Some larger regional bodies, such as the European Patent Office (EPO), harmonise rules within regions to some extent, but beyond that countries can form their own approaches. However, the TRIPS agreement created an internationally recognised standard of protection containing a very wide definition of patentable subject matter (i.e. any ‘invention’), and set out accepted exemptions to this. These definitions are very closely connected to the content given to them within the US patent system, as this section will briefly set out. Despite existing regional differences (see Rajan 2006 on India), the US approach thus remains the most relevant for an analysis of the parameters of international IP law contained in TRIPS – not least because of its very strong biotech sector. The history of the TRIPS agreement is clearly dominated by the influence of US industry and the IP systems of industrial countries (Sell 2003). The TRIPS Agreement added to an international system of IP standards already contained in the World Intellectual Property Organisation (WIPO), which was established in 1967 as a United Nations agency administering the Paris Convention for the Protection of Industrial Property of 1882, and the Berne Convention for the Protection of Literary and Artistic Work of 1886, which constituted the first attempts to introduce an international dimension of IPRs (Matthews 2002, 10). These agreements set out minimum standards in this area and introduced the concept of ‘national treatment’, which is the concept of providing the same “national treatment for foreign works under domestic laws for patents, trademarks […]” as for domestic works – but these treaties did not provide any effective mechanisms for enforcement of these standards (Ibid.). The TRIPS agreement incorporated most of the Paris and Berne conventions, but also tried to overcome their shortcomings, which were: “first, the absence of detailed rules on enforcement rights […] and second, the absence of a binding and effective mechanism to settle disputes between states” (Ibid.). Intellectual Property Rights under this agreement are private rights, backed up by the principle of national treatment within courts, thus relying in their enforcement on public power as well. The TRIPS agreement was substantially influenced by the private pressure group called the Intellectual Property Committee (IPC), consisting of chief executive officers of pharmaceutical, entertainment and software industries in the US, Europe and Japan (Sell 2003, 2; Tyfield 2008). They set out to strengthen existing protection measures and succeeded in gaining government support for a highly protectionist new agreement based on the already existing IP laws of industrialised countries, and thus globalised a previously national system reflecting the interests of industrialised states (Sell 2003, 2). Developing countries were then effectively coerced into accepting this regime as an obligatory part of the WTO, making the protection of IP a precondition for their own exports (Aoki 1998, 20). Correa argues that this “was also an expression of an aggressive action by the US industries to establish international rules that counter their declining competitive position in world markets” (Correa 2000, 5) – showing in how far this agreement was highly politicised from its inception (see also chapter VI for further discussion). National industrial interests were foundational to this international system, and are continuing to influence its development, as the US and a number of countries with an IP producing industry are pushing for even higher international standards of IP enforcement in ‘TRIPS Plus’ agreements such as the Anti-Counterfeiting Trade Agreement (ACTA), the Transpacific Partnership (TPP), and to some extent also in the current negotiations between the US and the EU as part of the Transatlantic Trade and Investment Partnership (TTIP) (Sell 2008; Abbott 2009; UNAIDS 2011; Geist 2010). Foucault once argued in a lecture on the international dimension of the liberal system that “[t]he game is in Europe, but the stake is the world” (Foucault 2008, 56) – this thesis argues that this is particularly true in the case of the IP system, where the game is mostly in the US, while its ‘stake’ has become the world due to the global reach of TRIPS and the WTO. However, as chapter III demonstrates, in a neoliberal economy the IP regime has become even more crucial for the maintenance of the biotech’s industry’s interests – which rest on a functioning IP system for the raising of “speculative capital” (Cooper 2008). The international IP system thus is still very much determined by the expansive reach of US legislation and jurisdiction, tempered to some extent by the influence of other industrial countries or regional systems such as the EPO and to a lesser degree EU institutions. This thesis discusses contestations and debates occurring on the international level with a focus on the three most influential international organisations operating at the intersection of IP and life: the WTO, WIPO, and the World Health Organisation (WHO). Where relevant, it also considers tensions between the US and the EU approach (see chapter IV). In this, it focuses on an analysis of the IP system’s relation to genetic conceptions of life, which goes beyond the mere unidirectional ‘commodification’ of life, and creates increasing challenges for the IP system. In the negotiation of these challenges IP law becomes a central site for the governing of life.

Anthropological considerations of intellectual property (IP) have a short history; only since the mid-1990s and the incorporation of IP into international trade regimes has it become a major field of concern. What may have been a topic of narrow interest to legal anthropologists has attracted attention across the discipline because of the range of the law’s social and economic impacts. In market economies, IP protects many intangible cultural goods (e.g., aesthetic works, trademarks, designs, modes of manufacture and composition, genetic resources) from unauthorized reproduction through material means of enforcement. Protected informational or cultural goods are manifest in material and digital forms of fixation (books, films, posters, songs, fertilizers, machines, plants, medicine, software, pesticides) that circulate as publicly accessible (if not freely available) goods. Such goods are so pervasive and socially significant that restricting access to them via IP provokes concerns about the scope of powerful economic interests, the state’s capacity to meet vital human needs and provide critical infrastructures, and the protection of citizens’ democratic entitlements and minority cultural traditions. IP protections are understood to be both economically and socially productive: not only do they yield revenue in the form of royalties for their holders, they legitimate certain actors as creators and delegitimize others, including counterfeiters who may be deemed “terrorists” and “pirates.” As the scope and range of IP protection expanded, so did its capacity to restrict access to goods as diverse as music, communications technologies, seeds, pharmaceuticals, and academic scholarship. The new forms of capital accumulation and cultural influence generated by these legal changes attracted the attention of diverse subfields of anthropology, prompting scholarship that added feminist, new materialist, and science and technology studies (STS) methodologies to conventional approaches drawn from political economy, social constructionism, and interpretive legal anthropology. From these different theoretical perspectives, anthropologists addressed the IP vehicles of copyright, patent, trademark, design, plant variety protection, and publicity rights alongside emerging protections for traditional knowledges, traditional cultural expressions, and genetic resources. When ethnographically tracking these legal mechanisms, anthropologists explored questions of property and commodification, representation and translation, research and ethics, personhood and subjectivity, and place and territorialization, which are the major themes of this article. Anthropologists regularly engage with interlocutors in law, cultural studies, communications, and media studies; this article references scholars outside of the discipline whose work has been influential for anthropological engagements with IP.Anthropologists recognize IP as a form of commodification rooted in Western liberal philosophy that creates regimes of scarcity by recognizing some types of material expression as the property of individual, collective, and corporate actors. Using rationales such as the valorization of original individuated expression (copyright), novel innovation (patent), investments in creating fields of commercial meaning (trademark), and the making and merchandising of distinctive personas (celebrity), the law legitimates various entitlements. Such legal recognitions are selective in the kinds of cultural creativity they encompass, routinely finding certain forms of human expressive and innovative work to be legible and legitimate while excluding or taking for granted other similar, socially valuable activities performed by people with less political power. Although anthropologists insisted that there were some similar types of exclusive protection in non-market societies, the global consolidation of such protections was largely understood to be a product of liberal capitalist modernity, ideologically premised upon the naturalization of social categories dividing private and public zones of social life.

Among the most significant Of these changes are transformations in forms Of social and political violence, the kinds Of violence recently described by the philosopher Charles Taylor as 'categorial', directed towards people whom the protagonists do not personally know (2011). Often such violence is contrasted to the violence that takes place within personal relationships, but as we will see as this book develops, this distinction is not as clear as it once may have been. The chapters that follow attempt to explore a con- text that has become increasingly evident, as violence that once appeared to be 'contained' by key dimensions of modern society is now much more fluid, increasingly part of the flows making up a global world (Urry 2005). But such violence is not a 'thing' or an object. It is a form of agency, an embodied relationship and human experience. As such, it is a critical lens through which to explore wider transformations of social life. On the Other hand, to separate violence from such transformations profoundly limits our capacity to understand, and respond to, one of the most urgent questions shaping the twenty-first century. ¶ The Surveillance Society ¶ Most of us are aware of changing forms or potentials of violence through the growth of security and surveillance (Crelinsten 2009). Some developments are obvious, such as airport security. Others are less so, such as passport tracking systems, internment camps, control orders and detention without trial, or erosion of the distinction between immigration policy and security policy (Connolly 2005: 54). Some receive extensive debate in the press and social media, while Other developments are less discussed. Over recent years, for example, states as different as Iran, Saudi Arabia, Israel and the United States have been engaged in the construction Of thousands Of kilometres Of walls along national bor- ders, a development that the political scientist Wendy Brown calls 'walling', something she contends is driven by 'waning sovereignty' (2010). Global military expenditure, which had declined in the years following the end of the Cold War in 1989, expanded rapidly over the first decade of the new century, increasing by some 49 per cent to reach US$1.53 tril- lion in 2009 (Stockholm International Peace Research Institute 2011). New types of public surveillance involve pervasive but ambiguous categories Of 'pre-crime' as public policy seeks to identify groups and individuals 'at risk' of committing criminal acts (Zedner 2007). The changing role of the criminal justice system has become evident in the relentless increase in the number of people imprisoned in the world, a figure that reached some 10.65 million in 2009 (Walmsley 2010). ¶ Political theorists in particular have been aware of the ways these transformations 'resonate', mutually amplifying each other (Connolly 2005: 54). Brian Massumi (2007) argues that we are witnessing the emergence of a new type of governance in complex societies, one shaped by a shift from a model Of prevention, which operates in an 'objectively knowable world', to a model of pre-emption, which involves the attempt to wield power in a world based on uncertainty. Brad Evans (2010) points to the rise of 'consequentialist ethics' involved in this development, where forms of moral judgement framed in terms of 'right' and 'wrong' are becoming redefined as calculations to determine whether a situation is to be judged better or worse as a result of a course of action. These are not minor trans- formations. The OECD argues that 'security' has become a major area Of economic activity, a driver Of modern economies (OECD 2004), while the sociologist David Lyon traces the contours of a surveillance society increasingly based on digital technologies (Lyon 2004). The political philosopher William Connolly argues that this new social and political model involves an increasing mobilization of the population against 'unspecified enemies' (2005: 54). ¶ The Blurring of War and Peace ¶ One Way to think about this transformation is in terms Of a changing relationship between peace and war. The historical sociologist Charles Tilly argues that the emergence Of modern societies from the seventeenth century to the Second World War Saw violence moving in two directions: increasingly deadly inter-state confrontations and increasingly peaceful domestic societies, evident in the disarming Of populations and the rise Of peaceful forms Of protest and conflict (Tilly 2002, 2003). This constituted an increasingly clear separation between zones of war and zones of peace, a separation that for the philosopher Immanuel Kant constituted the very basis Of modern society (Kleingold 2006: ix). This account of the birth Of modernity locates violence beyond the borders of increasingly peaceful societies, and to a significant extent has established itself as a structure of thought preventing any significant exploration of the violence at the heart of modern societies, in particular the violence present in colonial expansion, or in the extent of atrocities and extreme violence undertaken by the colonizers in the process Of decolonization (Bennett 2011). Within this modern self-understanding, the capacity for extreme violence has always been associated with 'the Other with modern society, by definition, understood as being inherently peaceful. ¶ The securitization we have referred to above signals two related transformations: the separation between war and peace is becoming less and less clear, while the state's monopoly of violence is becoming less and less certain. Rather than war being an external event, the cultural geographer Nigel Thrift argues that contemporary, globalizing societies have entered an 'era of permanent and pervasive war' (2011: 11), with war no longer understood as taking place beyond borders, but across all areas of social life. This shift seems particularly evident when we 100k at urban design, where we encounter not simply the increasing integration of blast proofing and other defensive systems into buildings, but the actual militarization of urban space, evident in particular in contemporary military theory where older conceptions of 'battlefield' are giving way to new models of 'battle space' (see Graham 2012) where the space of warfare becomes 'cotermi- nus with the space of civil society itself' (Dillon and Reid 2009: 128). This pattern is evident in the extent that conceptions of urban security devel- oped in a warzone such as post-2003 Baghdad have established themselves as paradigms for policing and security in the cities Of North American and Europe (Graham 2010). ¶ War, from this perspective, rather than being an activity beyond the borders Of modern society, becomes instead a lens with which to conceive of the core organization of such societies. The rise of war as a lens to frame social life has been particularly evident in military theory. William Lind, for example, argues that the world has entered an age of 'fourth generation war', characterized by the loss Of the state's monopoly over the exercise Of War. Today states find themselves at war with non-state opponents, wars he argues that states are losing. Writing in a respected journal, Lind argues 'invasion by immigration can be at least as dangerous as invasion by a state army' (2004: 14). We do not need to embrace this type Of argument to rec- ognize that the twenty-first century has been shaped by an awareness of a new vulnerability.

Sen’s methodological individualism and belief in the naturalness of the market is consistent with the ‘biopolitics’ (Foucault 2007, 2008) of liberal ‘governmentality’ (Foucault 1991, 2008), which seeks, through the construction of rational, self-interested autonomous individuals, to reduce the great mass of culturally differentiated humanity to ‘bare life’ (Agamben 1998; Shani 2010). Defined as ‘the set of mechanisms through which the basic biological features of the human species become the object of a political strategy’, the origins of biopower or biopolitics, go back to the attempt, starting in Europe in the 18th century, ‘to rationalize the problems posed to governmental practice by phenomena characteristic of a set of living beings forming a population: health, hygiene, birth rate, life expectancy, race’ (Foucault 2008: 1). These problems, Foucault argues, are inseparable ‘from the framework of political rationality within which they appeared’: liberalism (Foucault 2008: 317). Liberalism, for Foucault, is neither an ideology nor a theory but a practice: ‘a principle and method of the rationalization of the exercise of government, a rationalization which obeys…the internal rule of maximum economy’ (Foucault 2008: 318). As a form of critical reflection on governmental practice, liberalism is based on the principle that ‘one always governs too much’ (Foucault 2008: 321, 319). This qualifies the pastoral impulse implicit in governmental rationality: the power to ‘make live’ which is itself a legacy of the pastoral individualising power of the Christian ecclesiastical pastorate (Foucault 2007: 364). Consequently, the ‘market’ role is crucial in deciding who lives and who is disposable. In Foucault’s words, it enters the governmentalising processes as ‘privileged site of experiment in which one can pinpoint the effects of excessive governmentality’ (Foucault 2008: 320). The market was considered by the classical political economists of the 18th century to be directed by natural forces. For Adam Smith, the development of a market economy is the outcome of a natural propensity within people to ‘truck, barter and exchange’ in pursuit of their material self-interest. Our instinctive desire to better our condition produces mutually beneicial outcomes through the operation of (God’s) ‘invisible hand’ and universal laws governing prices and wages (Smith 1976). Through concepts such as the ‘true price’ that is formulated by the natural workings of the economy, the market appears as a site of ‘veridiction’. Since the sovereign is thought of as incapable of fully grasping the ‘truth’ of the market, classical economists were therefore opposed to mercantilist restrictions on the free low of goods and service and considered the proper role of government to ‘let things follow their course’ (Foucault 2007: 48). Although they appeared as ‘external’, the limitations on sovereign power imposed by the ‘market’ were, consequently, internal to the process of governmentality. Consequently, liberalism appears as ‘the principle of the self-limitation of governmental reason’ (Foucault 2008: 20). Like Adam Smith and the other classical economists, Sen accepts the (internal) limitations placed on governmentality as ‘natural’ and, therefore, external to it. Human development, he argues, can only take place through participation in a market economy, which is the best guarantee of freedom. Where he departs from the neoliberal (but not the classical) tradition is in his insistence that the state and other governmentalising agencies can – and should – play an active role in the developmental process within the constraints imposed by the market. Whereas Smith and the other political economists considered homo oeconomicus to be a natural description of the human individual under conditions of freedom, Sen – in common with contemporary neoliberalism – believes that he or she has to be constructed through a discourse of ‘empowerment’. As a strategy of governmentality, ‘empowerment’ creates the liberal subjectivity needed for capitalism by ‘emancipating’ the individual from prior social and cultural arrangements and inculcating the skills and resources needed to participate in a market economy. The state, in Sen’s view, is pri marily responsible for the production of this liberal subjectivity through the dissemination, via compulsory education, of what Smith referred to as ‘habits of industry’: autonomy, calculation and relexivity. The ‘empowered’ individual is expected to be ‘unencumbered’ (Hopgood 2000) by communal and social ties and to possess the ability to calculate and the capacity for relexivity. A well-educated, healthy workforce made up of autonomous, calculating and relexive individuals will thus have the ‘capability’ (neoliberals prefer ‘capital’) to attract foreign direct investment and to generate economic development. For neoliberals, however, the state – particularly in the global South – has become a signiicant barrier to development. The state’s responsibility for executing the liberal project of modernity is entrusted instead to the private sector and a plethora of international, non-governmental and quasi-governmental organisations. This new institutional architecture is designed to allow neoliberal ‘governmentality’ (Ong 2006) to operate on a global scale. Neoliberal governmentality seeks to maximise market allocation at the expense of the state by making the market mechanism the sole legitimate means of allocating resources in society, thus rejecting the fundamentals of classical and ‘embedded’ liberalism. It responds to the biopolitical problems which beset human beings collectively as ‘a set of living beings forming a population’ by individualising them: as active informed citizens, individuals, and not the state, are made primarily responsible for their own welfare. Furthermore, the dominant ‘Chicago School’ of neoliberalism seeks ‘to extend the rationality of the market…to domains which are not exclusively or primarily economic’ (Foucault 2008: 323). This includes forcibly imposing ‘the rationality of the market’ on ‘populations’ living in indebted ‘developing’ societies through IMF/World Bank structural adjustment programmes (SAPs). SAPs seek to create the disciplinary mechanisms needed for the construction of homo oeconomicus by transforming institutional structures and creating autonomy; inculcating certain habits such as calculation and relexivity, and developing the capacity of the state so that it can undertake these tasks (Williams 1999: 90). Speciically, this entails ‘disciplining’ the state through privatisation of state-run industries, economic liberalisation, deregulation of the economy, rolling back of welfare, reduction of expenditures on public goods, tightening of fiscal discipline, favouring of free lows of capital in order to attract foreign direct investment, strict controls on organised labour, tax reduction and unrestricted currency repatriation. The disciplined neoliberal state consequently favours strong individual property rights, the rule of law and the institutions of freely functioning markets and free trade (Harvey 2007: 64) This ‘global disciplinary’ neoliberalism, as Stephen Gill has pointed out, requires a juridical-political dimension in order for it to appear as hegemonic: a ‘new constitutionalism’ that seeks to ‘lock in’ the ‘rights’ of investors and privilege the ‘security of capital’ over ‘human security’ (Gill 2003). The new political architecture of the global political economy is provided by international institutions such as the World Trade Organisation (WTO), which ‘disciplines’ member states for pursuing policies detrimental to the interests of (multinational) capital, the World Economic Forum at Davos, which provides an arena where government, business and media leaders can meet and coordinate policy goals, and, perhaps most importantly, the Group of Eight (G8) and now the Group of Twenty (G-20) inance ministers and central bank governors, who met in London in April 2009 to discuss the world-wide economic crisis. Their objectives are ‘to create a set of long-term economic and political reforms that gain constitutional status, thus underpinning the extension of the disciplinary power of capital on a world scale’ (Gill 2000).

This article is not grounded in sociological theory per se; however, it does argue that a contribution to the field itself may be found in otherwise strictly literary or philosophical texts. Recent sociopolitical uprisings have again demonstrated the tendency to think that genuine change can only be enacted through mass revolt. Critics and opponents of these movements have pejoratively declared them failure because they lack a “positive vision”. Is there a crisis in utopian thinking today? Perhaps. It is thought that mass movements constitute a power onto themselves capable of bringing about genuine change in the world. However, these movements are eventually met with what Slavoj Žižek calls “the proverbial morning after question” (What happens tomorrow morning?) (see Žižek, 2012). Maybe the masses are not the only valid conduit by which to change the system; what is needed is a personal comportment to the world which allows for continuous utopian potential to be lived through and change enacted through. Perhaps one ought to revisit the site of the individual for a possible analysis of overlooked utopian potential. To begin the return to the individual I propose a quasi-hermeneutic move to address the concept of utopia itself, originating as it did with the work of Thomas More in 1516. Fátima Vieira writes that More’s imaginary island was originally to be called “Nusquama”, from the Latin word “Nusquam”, which means “nowhere”, “no place”, “on no occasion”. However, More wanted to convey a meaning that exceeded this notion. Inspired by the travel/imperial expeditions of his time (e.g., Amerigo Vespucci, Christopher Columbus, and Angelo Poliziano) and the then blossoming capitalist markets, More wanted the name of his fictional island to reflect a sense of possibility and hope that the Otherness of these new lands (the New World) would bring for Europe. Furthermore, More wanted to convey the idea of an ideal society that “existed” somehow without being reified qua plan as in the Republic or Laws of Plato (Vieira, 2010: 3-4). As such the Western tradition was indelibly marked by what I will call – echoing Alain Badiou – the More-Event: the invention of the word “utopia”: “derived from the Greek ‘ou’ (‘non-’) and ‘topos’ (‘place’), means ‘no-place’ (with a possible pun on ‘eu’ (‘good’): ‘good-place’)” (Bruce, 2008: xxi). The use of the Greek over the Latin in the naming of Utopia was also intended as a homage to the Classical Ancient period of the Greeks that was thought by those Renaissance Humanists – of which More is counted – as the height of human achievement and culture. But what of this no-place today? How might it to be interpreted today? I believe that insight might be gained if no-place (utopia) is thought of as an always-already being-in-no- place as opposed to no-place as such dwelling just behind the horizon (but close enough that one senses its presence) as it is commonly understood today. This amounts to a veritable involution of no-place from an “out-there” to an “interior” (i.e., subjective) comportment with respect to the world. Indeed there are some contemporary cultural markers which point to the gradual awareness of this involution of the notion of no-place. My argument can be sensed in the words of the nineteenth-century historian Jacob Burckhardt: “We would like to know the waves on which we sail across the ocean; but we ourselves are these waves” (qtd. in Blumenberg, 1997: 69). Here Burckhardt alludes to the limitless frontier that is the face of all that is possible and encourages the recognition that one is already that frontier. It is the responsibility of the subject to “float” upon the “waves” to the point where, like Burckhardt, “we ourselves are these waves”. Jacques Rancière helps clarify this sentiment when he tells of Wordsworth’s experience of the festivals of revolutionary France: “Wordsworth’s path is the poetry of the humble, dedicated to glorifying, in the language of the simple, the most modest of wildflowers that the walker ignores or steps on” (Rancière, 2003: 23). For Wordsworth, one was able to experience the utopian nature of the moment, the here-and- now. Wordsworth writes, Not in Utopia, subterranean fields, Or some secreted island, Heaven knows where! But in the very world, which is the world Of all of us. (qtd. in Rancière, 2003: 11) It may appear that what Wordsworth presents his reader with is the very thing Marx and his followers wanted to abject from the consciousness of man; that is, a form of utopianism which descends into idle daydream and lack of political efficacy. In the words of Žižek – and to reverse Marx – perhaps “the only way to stop the system from working is to stop resisting it” (Žižek, 2012: 108). One may rightly be skeptical of this proposition. However, there is a politically disruptive aspect or potential in perceiving utopia as embedded in the real of the here and now. M. H. (Behooz) Tamdgidi has perhaps argued for this point strongest in the recent literature. Tamdgidi’s claim is that utopia is not a (no-)place properly speaking, nor is it strictly speaking a “desire” for something better; rather, utopia is an “attitude”: In contrast to reactive modes of anti-systemic behavior that concentrate on building a movement that instrumentally focuses on the destruction of the old order in order to reach a good life projected into the future (be that future distant or near, illusively or “realistically” conceived), the utopian attitude involves making effort, whatever their scope, towards imagining, theorizing and/or practically realizing that future goal in the here and now. (Tamdgidi, 2003: 131) My argument is one that espouses a form of Quixotism, where “inns must be castles” (De Unamuno, 1954: 327), or, like the response to Billy’s questions “where am I?” and “how did I get here?” upon being abducted by the Tralfamadorians in Kurt Vonnegut’s Slaughterhouse Five: It would take another Earthling to explain it to you. Earthlings are the great explainers, explaining why this event is structured as it is, telling how other events may be achieved or avoided. I am a Tralfamadorian, seeing all time as you might see a stretch of the Rocky Mountains. All time is all time. It does not change. It does not lend itself to warnings or explanations. It simply is. Take it moment by moment, and you will find that we are all, as I’ve said before, bugs in amber. (Vonnegut, 1991: 85-86) Utopia is to be sensed and developed as such from the non-signifying experiences of the individual. This sensation is an affective quality inherent to one’s comportment with respect to the world that can then be emitted outward into the greater social body, continuing to balloon outward until “utopia” comes to affect all things in the cosmos. The catch, however, is that, much like Vonnegut’s Tralfamadorians, Tamdgidi’s seemingly expanding balloon of utopia does not begin in the individual and end with the cosmos; it simply is. At this point I will transition to a working example or case study through which I hope to develop a more concrete interpretation of the conception of an interior foundation for utopia. I think China Miéville’s The City and the City beautifully expresses the intimate connection between the cosmic and the non-signifying – “silent utopias” – which “never find expression in any tangible literary or communal forms” (Tamdgidi, 2003: 137) and yet no less constitute Utopia. This potential is located in Miéville’s brilliantly weird concept of “unseeing”.

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 137-140. LJS

The “molecularisation” of life (see for example Novas and Rose 2000) shifts the understanding of the ‘nature’ of the subject to a different level, marking a shift of the medical gaze similar to the change in the eighteenth century (see N. Rose 2007b, 4 f.), changing “[n]ot only the names of diseases, not only the grouping of systems were not the same; but the fundamental perceptual codes that were applied to patients’ bodies” (Foucault 1963, 64). Novas & Rose term these molecularised concepts of life and of disease a “new ‘molecular optics’” (2000, 48), while Heath, Rapp & Taussig refer to the development of new forms of self-understanding of the individual, adapting to the new ‘truth’ about his/her medical destiny contained in his/her genetic code as “a genetic ‘micro-anatomo-politics’” (2004, 154). Importantly, Novas and Rose point out that “[t]hese developments [...] re-shape the ways in which we are governed, and the ways in which we govern ourselves”, “creat[ing] an obligation to act in the present in relation to the potential futures that now come into view” (Novas and Rose 2000, 486). This obligation to act in the present according to the demands of potential futures “come[s] into an association with all the other shifts that are assembling somatic individuality, with the norms of enterprising, self-actualizing, responsible personhood that characterize ‘advanced liberal’ societies” (Ibid., 488). Subjects are thus incited to operate with reference to these connected identities (or modes of subjectification) of the genetic and enterprising individual. In contrast with Novas and Rose’s focus on the individual, Raman and Tutton stress that the influence of the life sciences does not only amount to a ‘disciplining’ of the individual’s conduct, but still remains connected to knowledge generated at the level of the population (Raman and Tutton 2010, 721). Critiquing notions of a wholesale transformation of Foucault’s “old biopolitics from above” to a “new biopolitics from below”, they argue that “truth discourses about life contain a hybrid of molecular and population categories” (Ibid., 722). Thus “old” and “new” modes of biopolitics coexist in the molecular age, giving rise to population-based governmental interventions such as national biobanks and “strategies for infection control”, as well as a new “pastoral or enabling” role of the state (Ibid.). At the heart of a new biopolitics “from below”, the concept of biological citizenship (or genetic citizenship)66 encapsulates the rights claimed by the active patient within this new somatic ethics. Based on the biological condition of the entrepreneur of the self, these rights have the potential to challenge governance and health providers, “[articulating] claims to participation in social and political life and to the recognition of certain individuals’ or groups’ identities, expertise and specific needs based on their (supposedly) biological or genetic conditions” (Wehling 2011, 225).67 In particular, “these practices challenge conventional notions of a divide between lay people and experts” (Heath, Rapp, and Taussig 2004, 152). While Novas (2006) and Rose (2007b) respectively emphasise the power of ‘hope’ in generating demands made by patients and patient organisations, Wehling cautions against overstatements in this direction by drawing attention to the contrast between new demands and the amount of new responsibilities imposed on the individual “to optimize ‘healthy’ bodies and minds” (Wehling 2011, 227). The clearest examples of biological citizens are for instance patient groups, which are formed around a common genetic condition (such as Huntington’s disease or PXE). These patient groups can organise support for their condition more effectively and make more successful demands for research on that condition than any individual patient would be able to make. They can liaise with pharmaceutical companies and serve as research repositories for them, which also can improve the amount of research done with regards to their particular condition. Patients of more complex diseases such as arthritis and diabetes are also increasingly organising in this way (Heath, Rapp, and Taussig 2004, 159). At its most successful point, this activation of patients has the potential to radically reverse the roles between experts and patients, as Novas & Rose find: “the ill patients themselves, those ‘asymptomatically ill’ and their families [...] are increasingly demanding control over the practices linked to their own health, seeking multiple forms of expert and nonexpert advice in devising their life strategies, and asking of medics that they act as the servants and not the masters of this process” (Novas and Rose 2000, 490).68 However, this radical potential is limited by the simultaneously increasing moral duties of the individual, as Wehling points out. Most critically, the mobilising influence of hope for new treatments further essentialises conceptions of ‘good’ patients, which actively participate in pharmaceutical trials and the formation of biobanks etc., and thus are contributing to the generation of knowledge – but also of economic value. In particular, “deeply emotional representations of the fears and hopes of sufferers, and their expectations that new medical technologies will deliver them from their suffering, structure many popular representations of patients and their illnesses, and are often deployed by medical charities, support groups and others in seeking to raise funds to keep that hope alive.” (N. Rose 2007b, 136, quoting from Nik Brown) The power of hope thus not only gives rise to biopolitical challenges, but also engenders subjectivities that contribute to the production of economic value. The invocation of the power of biological citizens is in this way tempered by an “‘elective affinity’ between the spirit of biocapital and our contemporary somatic ethic” (N. Rose 2007a, 5). The remainder of this chapter argues that IP is central to the management of this “elective affinity” and contributes to the governing of demands made by patients by maintaining a division between the realm of economic relations and the biopolitical challenge of active patients. This exclusionary function prevents the bioeconomy from being affected by a potentially radical role reversal between patients and experts. The next section of this chapter shows how the IP regime maintains a separate sphere of (bio)economic value by structuring the participation of active patients (or biological citizens) in this area. While alternative models of participation are explored in examples of citizens’ science, an analysis of debates around participation by “research patients” or “research citizens” shows how the demands of genetic citizens are being controlled. While patients are increasingly incited to fulfil a new responsibility of voluntary participation in trials and research, the bioeconomy still functions by remaining largely closed off from decisive influence exerted by patients on the use of donated materials in Rose’s “transnational circuits of vitality” (N. Rose 2008a, 46). This management of biopolitical challenges “from below” (Raman and Tutton 2010, 722) is then also traced in emerging challenges to the exclusionary function of IP in an international version of a “new moral economy of R&D” (Lezaun and Montgomery 2015, 5) – representing an international version of the “biopolitics from above”.

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 34-38. LJS

Roughly at the same time as the rise of the gene, a new form of intellectual property emerged: the gene patent. This form of intellectual property on information derived from human, plant, animal, or micro-organism genetic materials was highly controversial since its inception in the 1980s, beginning with the patenting of an oildissolving micro-organism (Diamond v. Chakrabarty (1980) 447 U.S. 303). Subsequent very broad patent claims such as the OncoMouse™ raised concerns about the exclusionary effects of this practice, claiming in this case an entire “transgenic non-human mammal all of whose germ cells and somatic cells contain a recombinant activated Onco gene sequence introduced into said mammal, or an ancestor of said mammal, at an embryonic stage” (Jaenichen, McDonell, and Haley Jr. 2002, 8). Further notorious examples consisted of patents applications on basmati rice, traditional indigenous herbal remedies, agricultural seed materials, and also human genetic materials, as for example in the case of the surreptitious patenting of John Moore’s genetic material (Moore v. Board of Regents [1990]). In the unfolding debates about the implications of genetic research and the ownership of genetic materials, the pharmaceutical industry, researchers, philosophers, ‘bioethicists’, patients, IP lawyers, politicians, and national governments all contributed to ethical arguments. These debates resulted in slightly different regional approaches to the regulation of the patentability of human genetic materials, in which in theory every country can establish its own particular regime. However, this changed in 1994 with the introduction of international minimum standards of patentability laid down in the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) as part of the World Trade Organization (WTO). In this treaty, a US model of IP law was implemented worldwide, at the behest of influential US industry interests (Sell 2003). IP has since become a highly charged topic in international negotiations, as these legal standards are mostly perceived to be in the interest of industrial countries, and are widely criticised for their detrimental effects on developing countries – especially in the context of pharmaceuticals and health (Hestermeyer 2007). This chapter presents an evaluation of critiques made of IP’s treatment of genetic conceptions of life, and argues that they are overly focused on the role of IPs within the economy, and do not take into account the wider political dimensions of the emergence of the gene (referred to later as “the genetic dispositif”) and the establishment of exclusive ownership over this knowledge. These dimensions will then be explored throughout the thesis, on the level of contestations over the recognized “truth” of life, of demands for participation and openness voiced by “active patients”, and of critical interventions made upon the international level, seeking to challenge the IP system’s exclusivity in the name of health. This section first briefly explains the legal concepts establishing intellectual property rights especially in the form of patents, and then shows how the national and the international intersect in the IP regime guaranteed by TRIPS. After establishing this background, this chapter then turns to an evaluation of several strands of critiques. 1.1. IPRs in human genetic materials – ‘Inventing’ a commodity Intellectual Property Rights comprise a range of different legal mechanisms for establishing ownership over abstract ‘intellectual’ creations – thus making an abstract idea or invention into a tradeable commodity. Without this, the distribution of knowledge would remain “non-rivalrous”, as knowledge does not diminish when it is distributed, unlike more conventional objects (Boyle 2008, 3). Making commodities out of information derived from ‘life’ pushes the boundaries of intellectual property, as the subsequent discussion shows. In this, the focus of this work rests predominantly on patents, which are the most important means of ‘owning’ information derived from human genetic materials. Copyright is involved in this area to a much more limited extent.4 Patents are the tool that assure ownership over an idea, whereas Copyright is the means by which ownership of a particular way of expressing an idea is established, as for example in a novel or a computer programme (see May 2010, 5). Copyright is not in itself a new invention but rather creative usage of pre-existing concepts such a language. Patents confer a “limited monopoly” on the patentee “in return for the disclosure of technical information” (Bently and Sherman 2009, 335). Patents are usually defined as “a monopoly which is granted for an invention after application to, and examination for patentability by, the Patent Office and lasts for a maximum of 20 years. To be patentable, an invention must be new, show an inventive step, be industrially applicable and not fall into one of the excluded categories of invention” (Colston and Galloway 2010, 4). Most important for IPRs in human genetic materials is the notion of the inventive step, which seeks to ensure that patents are granted for inventions, not discoveries. An invention is the creation of a novel product by a scientist/ inventor, whose creative effort warrants reward (see for example Jasanoff 2012, 165f.). Mere discoveries, on the other hand, are fundamental ‘truths’ that cannot be owned, as this would “inhibit competition and deprive the public of a truth that had always existed, only waiting to be uncovered” (Colston and Galloway 2010, 126; they give an example of the discovery of a new chemical element as one such “truth”). This distinction may seem straightforward at first, but becomes most problematic in the context of human genetic materials, where a determination has to be made whether the human genome or individual genetic sequences constitute a discovery or an invention (see discussion in chapter IV). Even IP’s most basic precondition of the ‘inventive step’ is immersed in debates involving different interests and different interpretations of the truth over life. At stake in these debates is nothing less than the question of IP’s legitimacy in this area – and an entire economy of funding for research. This thesis does not seek to normatively decide this debate, but rather to provide an analytical perspective on debates surrounding parameters of IP that foregrounds contestations about truth contained in technical assumptions such as the inventive step, industrial applicability, or ‘novelty’. Rather than focusing predominantly on the economic role of IPRs in human genetic materials and their making of the commodity, this perspective can account for a wider variety of power exercises surrounding the creation of intellectual property over life – especially IP’s role in the normalization of knowledge and in the management of political challenges emerging from the predominance of genetic conceptions of life. This analysis of the different roles of IP does, however, not seek to argue that IPRs do not fulfill the function of providing commodities. It rather argues against a primary focus on this role, which interprets tensions surrounding IPRs with reference to this role alone. This chapter shows that emphasis on the creation of commodities comes at the expense of a more detailed appreciation of the rise of genetic conceptions of life’s wider political implications – and the way in which this account of life presents problems for governing, negotiated especially in this legal field situated at the intersection of genetic accounts of life and the economy. The economy here becomes a project of government, which puts into place the parameters of the ‘free market’ and regimes such as IPRs, which can be used to ensure the appropriate functioning of this market. Thus, rather than arguing that IPRs are “commodifying life” because of demands of the market, this thesis reverses the analysis on IPRs as a constitutive part of laws governing for the market (see next chapter), arguing that they fulfill more functions in this process than the provision of commodities alone. In this, IPRs contribute to the management of problems for the governing of life while simultaneously maintaining objects for circulation in the economy. 1.2. IP: Connecting the national and international context The establishment of an international IP system built on enforceable minimum standards in the early nineties gave soon rise to fierce criticism and controversy, as later negotiation rounds on WTO treaty amendments showed. The next few decades saw this previously relatively obscure technical area of economic law develop into a hotly debated issue, challenging for example its connection to health concerns and the relative imbalance of interests served by IP. Developing countries succeeded in securing a declaration on the relation between IPRs and public health in the Doha Round of WTO negotiations commencing in 2001, but this declaration fell short of actually introducing new options into the already established system (WTO 2001, see also chapter VI for details of changes that were nonetheless enabled by this declaration). In the field of genetic resources and traditional knowledge, indigenous peoples increasingly challenged the use of IPRs on traditional indigenous knowledge and genetic resources gathered by bioprospecting operations across the globe. Separate treaties were drafted to respond to such concerns, for example the Convention on Biological Diversity (CBD) and its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010), but are still not (to date) endorsed by some of the most important industrialised countries such as the US – which are most in favour of high IP standards and strong enforcement measures. The history of TRIPS and the uneven distribution of IP-producing industries world-wide reveal a very strong interconnection between national and international agendas within the field of IP policy – especially where it comes to the influence of some very powerful industrialised countries such as the US. The standardisation in the field of IP law brought about by TRIPS was heavily influenced by these interests, which also continue to push for more stringent (‘TRIPS Plus’) agreements. As Sell points out, the TRIPS agreement was substantially drafted by a private pressure group called Intellectual Property Committee (IPC), consisting of chief executive officers of pharmaceutical, entertainment and software industries in the US, Europe and Japan (Sell 2003, 2; Tyfield 2008). In the TRIPS agreement’s negotiation, these lobbyists set out to strengthen existing protection measures and succeeded in gaining government support for a highly protectionist new agreement based on already existing IP laws of industrialised countries, thus effectively globalising a previously predominantly national system reflecting the interests of industrialised states (Sell 2003, 2). A similar US-led undertaking can currently be witnessed in the negotiations seeking to introduce TRIPS Plus standards in international agreements such as the Anti-Counterfeiting Trade Agreement (ACTA), the Transpacific Partnership (TPP), and to some extent also in the current negotiations between the US and the EU as part of the Transatlantic Trade and Investment Partnership (TTIP) (Sell 2008; Abbott 2009; UNAIDS 2011; Geist 2010). The biotech sector also traverses national boundaries in a variety of other ways. Biotech companies, for instance, are most likely based within countries with a beneficial IP system. One early high-profile example is deCode Genetics, which set up and ran the Icelandic Biobank – a private corporation formed under US law but with its physical location in Iceland. This is a common occurrence in the biotech sector, where “most biotech companies in the world are given a fictitious Delaware location for legal, tax and patent advantages” (Pálsson and Rabinow 1999, 14). A large proportion of biotech companies are thus actively seeking out the US IP system, which is less restrictive than the European approach especially in the area of human genetic materials. For example, since the Bayh-Dole Act (1980), the US system allowed for IPRs being derived from publicly funded research projects, “[facilitating] the transfer of technology between academe and industry in the United States, and thereby [enabling] rapid commercialization of basic research problems” (Rajan 2012, 2). This gave rise to the “entrepreneurial university” such as Stanford, which gave a “huge spur to the overall commercialization of biotechnology, and specifically to the development of Silicon Valley”, and has “a full-fledged technology-licensing office that focused exclusively on marketing university inventions” (Ibid., 3, this notion of the entrepreneurial university is now also being implemented outside of the US). Generous IP provisions such as these gave rise to an extraordinary influence of the US within the international biotech sector. Beyond this particular expansion of private interests, medical research in general has also become internationalized, as drug trials are increasingly recruiting test subjects from countries in which the population is not already exposed to a large number of pharmaceuticals, trials can be conducted more cheaply, and ethical standards are less strictly enforced (Petryna 2006, 37 and 42). Within this complex intersection of national and international private and public interests, IPRs’ economic role has been analysed from a variety of perspectives, as the next section shows.

Yet the United States is constantly at war, and in far more nations than most Americans realize. Combat in Afghanistan is entering its seventeenth year. U.S. personnel are back in Iraq. They are fighting in Syria, the Philippines and across Africa, including Niger, where four American servicemen recently died. Drone campaigns and special operations forces have been particularly active in Pakistan, Somalia and Yemen. As noted earlier, the United States is also underwriting Saudi Arabia’s aggressive war against Yemen. Worse, Washington is prepared to battle China, Russia and North Korea to defend prosperous and populous allies, which could defend themselves.

Perhaps most striking is how few of America’s “big wars” are justifiable. Most were conflicts of choice undermining rather than sustaining American liberties. The revolution created the nation. But while Washington was justified in defending itself from Great Britain in the War of 1812, the most serious casus belli, an attack on an American warship, took place years before. In 1812, war fever mostly reflected the desire to annex Britain’s Canadian possessions.

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

The reason for an excursus on Kant in particular here is not merely because Kant expresses most fundamentally the liberal bond between property and freedom. It is also because Kant understood that the ontological essence of modern property is its separa- tion from the proprietor (as discussed previously in the ‘Property and Subjectivity in Lib- eral Theory’ section). The true condition of such property is being able to own something that is not in one’s physical possession; this is the principle of rightful possession. Once this is acknowledged, as Esposito (2008: 69) puts it, ‘the contradiction implicit in proprietary logic fully emerges’. It is this contradiction, examined in the subsequent section, which sets the liberal property-owning subject upon a trajectory of its own unravelling. Property and Immunity In the initial balance between communitas and immunitas described thus far, one can appreciate how the subject is protected in its proprietary separation from others, that is, its identity is dependent upon itself in a self-referential relation that enables its pos- sessory characteristic. The subject is because it has. Ownership defines a principal status of individuals’ presence in modern political community, and this veneer of liberal equality is capable of fulfilling its underlying protective agenda so long as there is some assurance of proportionality and balance in the dichotomy of subject and object (Esposito, 2008: 68). This is the balance between the individual as subjective possessor on the one hand and its objective property on the other, both poles being mutually constitutive of the modern proprietary subject. However, the balance of this structure begins to weaken with the advent of two phenomena that flow from property’s immunitary basis. One, which is explicitly described in Esposito’s analysis, is the increasing distance between subject and object. This distance is ultimately the consequence of what Kant saw as rightful possession (that which does not require physical dominion) being the true measure of property, as it delineates ownership from mere control and enables property to take on an entirely incorporeal nature (Esposito, 2008: 68–69). The other phenomenon, which is not as explicit in Esposito’s analysis but which is a natural elaboration of his argument, is the proliferation of new forms of property. This is of course most evident in the advent of money as an abstract, substitutable signifier for property, but also includes the extension of our horizons of ownership further, notably in the burgeoning realm of intellectual property. It is inevitable that the two phenomena coincide. New taxonomies of property are intrinsically likely to operate at greater separation from the subject than old (e.g. an intangible investment property such as a shareholding operates at a greater ontological distance to its owner than, say, their house). The impact of these trends in property has an unequivocal effect, which Esposito describes as desubjectification. As will be explained, the increasing separation of the subject and their property inverts the effect of the protective immunitary structure, such that subject begins to dissolve into object. The culmination of this progression is unavoidably an affirmation of Marx’s diagnosis: Esposito (2008: 67) sees Marx’s description of people’s objectification in property as an immunitary consequence of the common claim that property is an extension of the subject. In Esposito’s (2008: 69) words, it marks ‘the reification of the person, disembodied of its subjective substance’. As such, the very subjectivity produced by the immunitary apparatus of modernity begins to weaken once its proprietary character is realized and intensified. By affirming itself in property, with its immunitary structure, the individual is advanced on a path of its own negation. The qualities we associate with the liberal individual, such as self-possession, personal sovereignty, autonomy, etc, find their expression to be diminished as the property upon which such expression is predicated becomes increasingly distanced and diffuse. What is stretched apart in this process is, ultimately, the individual’s relation with itself, the separation of its subjective possessory character and the objective property it needs to support its status as a property owner. This, of course, is the very struc- ture that constituted modern proprietary subjectivity in the first place. What previously manifested as subjective capacities become appropriated by the objective realm, such that identity, choice and expression become determined through a world of objects, a world that also happens to be governed, principally, by the market. In order to consider these trajectories of property, it is worth initially considering the processes of juridification that arose at the time that Esposito identifies the most forceful ascendance of immunitary practices. In particular, one should be mindful of the enclosure movement, which saw the rationalization of land rights and the shift from a feudal model to one resembling liberal, market-compatible holdings. From very early in English legal history, the structure of land law had a determining influence on people’s political subjectivity. The precursor to the recognizably modern landowner, the feudal tenant, was a product of the late Anglo-Saxon, pre-common law relation between a person and their lord. As observed in Digby’s (1875: 15) legal history, this bond developed into ‘a tie of mutual service, responsibility, and protection in every relation of life, and is regarded as one of the principal bases of social order’. That this duty was attached to territory ensured that one’s political being – in this case determined by servitude – was constitutively linked to the control of property by another. The processes of land enclosure, by which land was separated and tied to individual owners both geographically and through the construction of new legal concepts, was a consequence of a burgeoning socio-economic individualism. The most apparent losers in the process of enclosure were those whose landholdings were so small that they depended on the advantages of common land rights and who were subsequently forced to take up wage labour to make a living; ‘it would transform them and the labourers from upright members of a community, with a distinct set of rights, into inferiors dependent on the rich’ (Hobsbawm, 1999: 80). What ought to be added to this analysis of Eric Hobsbawm’s is that the rights lacked among this class are specifically land rights. If, as many argue, enclosure entailed significant social division between propertied and ‘unpropertied’ people, it is important to observe how parallel processes of individualization (which both include a proprietary logic) occur on either side of the rift. On the one hand, private ownership becomes the principal manner of holding land; on the other, for those without real property, one’s enfranchisement within society is achieved by the sale of one’s individual labour. In both cases, the construction of property rights holds an immunitary effect, in that the link between the subject and community is mediated through a form of self-referential pos session (ownership of one’s land and ownership of one’s labour). By contrast, the idea of common rights over a single resource is gradually eroded (although not erased) in law. Thompson (1976: 341) interpreted this as a transition from common rights to use property, which imply mutualism and indeterminacy, to property being a determinate, own- able entity and one which can be rationally exposed to market principles. It is important to note that, as is often the case, law tends to be a reflector rather than a cause of social change. As Daunton (1995: 104) claims, enclosure was not, in itself, ‘a dramatic shift from communal to individual ownership so much as the emergence of a more precise definition of what constituted an individual’s property’. Reinterpreted in the light of Esposito’s work, land enclosure should be recognized as a paradigmatic process of immunitary property relations, as it represents a seismic example of that crucial moment in any appropriation of private property, in which ‘the negative clearly begins to prevail over the positive’ (Esposito, 2008: 68). This represents the way in which the possessory act allows for social identity to be determined autonomously and individually and furthermore by the act of excluding other people. The twin trajectories of property, its proliferation and distancing, find their continued expression in what has been termed by some as a second movement of enclosure, in which there has been a similar effort to rationalize and individualize the ownership of new types of property (Boyle, 2002, 2003; Hunter, 2003). Primarily, such new property is intangible, intellectual property, but it could also cover the recognition of new interests in tangible matter, such as private property rights in isolated human body tissue. Recalling that the immunitary subject is one that is folded back to constitute itself self-referentially, it becomes apparent that these new technologies of property provide an explosion of channels through which such subjectivity can express itself – and ultimately negate itself. The ‘commons’ that is at risk of, or is in the process of, becoming enclosed should be familiar to us all in the way that the Internet has opened an entire new realm of virtual spaces, dwellings and marketplaces. (Although still resisting the pressure of enclosure are crowdsourced information resources such as Wikipedia, open-source software and ‘peer-to-peer’ methods of data sharing, for instance.) For some these spaces represent knowledge resources (Hess and Ostrom, 2007); others prefer to think of them as intangible places (McBeath and Webb, 2007) – understandable given the common semantics of the Internet, such as ‘cyberspace’, ‘to go online’ and web‘sites’. Whilst there are arguments against conceiving of digital communications networks through spatial and proprietary metaphors, our reality is of their relentless popular adoption (Lemley, 2003). Just as digital data is conceived as an ownable entity, networks for data transfer have been instantly understood as places which can be enclosed as property. A specific example to be considered is social media and the role it plays in the construction of identity. Newly ubiquitous online services such as Facebook and Twitter do consid- erably more than offer a repository of photographs and the means of communicating with others. More significantly, they operate as avatars that allow the subject to have a form of existence in a virtual space online, in which identity is performed through a choice of words and images (Jones and Holmes, 2011; Thomas, 2007). This allows users to refine their iden- tity deliberately, concealing some aspects whilst promoting or inventing others, but it also entails that identity construction can be conditioned through social norms (e.g. surrounding gender and sexuality; see Thomas, 2007: 35). Furthermore, it is necessary to recognize how online identities tend to be packaged for ‘public consumption’ (Gardner and Davis, 2013: 71) in a way that mirrors commercial content. Some services, such as YouTube, allow a platform to monetize one’s profile, facilitating a direct commodification of one’s online persona. Whilst some might be optimistic about the generation of new and creative forms of virtual subjectivity, it is also crucial to note that whilst such sites provide a place for the subject, they are ultimately owned and controlled by typically large commercial entities, who police the spaces according to their own rules and scatter them with revenue- generating advertisements. Therefore, whilst such new forms of subjectivity appear self-authored, it would be naive to think that the subject has their unfettered ownership. The line of analysis pursued here demands a cynicism about the utopianism that accompanied much of the hype around cyberspace as an emancipatory social platform. Whilst there are clear opportunities for creative self-expression here that are harder to find in the offline world, the freedom presented to the subject is typically quite narrow, principally, freedom to be a consumer. The almost limitless potential for enclosing objects of virtual property is set to enable their increasing supremacy in how we under- stand ourselves as subjects. Rather than operating as the basis of politically enfranchised subjective capacity, this trajectory leads to an imbalance in the mechanics of modern proprietary self-representation, such that the subject’s objective counterpart becomes distorted and distanced in a realm that is not only separated from the body but which is also entirely intangible and entwined with the interests of the market. This is an exam- ple of what Esposito (2008: 68) calls the breakdown in the proportionality ‘which unites the owner of property to himself’, weakening our sense of selfhood and capacity within political community, creating increasing reliance on these new enclosures to effectuate ever more fragile experiences of social and political identity. A further example of the trajectories under analysis is the proprietary status of body matter, such as cells for use in medical research, organs for transplants or reproductive body materials. Traditionally this has posed a problem for the law as humans are not nor- mally treated as legal property (slavery being an obvious historical counterexample), meaning that isolated body matter take on a necessarily peculiar status. As such, special rules have arisen to govern property interests in such cases (see Hardcastle, 2009), and there is nevertheless a discernible trend towards the assertion of rights in human mate- rial, increasingly for commercial gain. For example, the landmark Moore v. Regents P 2d 479 (Cal SC 1990) case, in which an American leukaemia patient entered into a legal battle over ownership of cells taken from his body during hospital treatment. The Supreme Court of California held that whilst a third party can assert rights in body mate- rials, these rights are available upon the excision of the material, not through a transfer of ownership from one owner to the next. In other words, the first point at which such mate- rial becomes property is the point at which it is alienated from the host. As Dickenson (2007: 37–38) has observed, arguments that individuals should have more pervasive rights over their own body material, in response to cases like Moore v. Regents, tend to be articu- lated from a liberal contortion of the Lockean principle of self-ownership (Locke argues that we own ourselves in the sense of agency, not simply as a material body). Despite the evident commercialization of human body tissue, the line between human and property, between subject and object, still lacks full clarity in law. Identifying a clear threshold of separability is discussed by some, such as Penner (1997), Harris (2003) and Hardcastle (2009), as a possible way through this area of ambiguity (Quigly, 2012). Such separation evokes a crucial aspect of Kant’s idea of property discussed earlier; it is only rightful possession, not physical possession, which represents property’s necessary condi- tion. But such separation, which suggests that anything that can be isolated from the body becomes just another object of property whose ownership may be contested,8 inevitably entails the alienation of the very thing our legal subjectivity holds dominium over. Insofar as such subjectivity is a product of this proprietary relation, such intensified separation is, again, entwined with what Esposito (2008: 69) calls desubjectification, which is the shift in the power dynamic between subject and object, such that the market-orientated domain of objects determines our ever diminishing sphere of subjecthood. This is most marked in this example of body materials, in which the individual not only loses a position of mastery over the realm of objects but is also subjugated by that realm, which turns to appropriate – quite literally – part of the body and absorb it into the market. The ethical debate about the commodification of body matter is of course already well established (see e.g. Munzer, 1994; Phillips, 2013; Radin, 1996). There are myriad reasons as to why one might object to the marketization of human tissue and data, from con- cern about unequal access to medical procedures, to principled worries about the sanctity of human dignity, to dystopian anxieties of people harvesting their own body parts – or worse, being harvested by others – for financial reward. But what is also crucial for the purposes of this article is the impact this commodification has on our subjecthood. Instead of the objective body providing a secure platform for the subjective agency of the individual, it provides the material for much more insecure relations in the market. On the one hand, it might require people to reconceptualize themselves as economic agents of their own bodily commodities. For those who hold extreme faith in the market and who are less morally squeamish about this prospect, there might appear something empowering about this. But on the other hand, as already evinced in cases like Moore v. Regents, it means that this platform is also to be increasingly contested with third parties. Where such battles are lost, when third parties gain legal ownership of individuals’ bodily materials and data, not only do we see an obvious disempowerment of that person’s eco- nomic agency over their body but also a partial loss of the very grounds of their subjectivity. Esposito’s insights therefore demand that we question the ‘separability thesis’, that is, the claim that we can arrive at a legitimate means of identifying ‘ownable’ body materials by focusing on their capacity to be separated from the person. The theoretical and practical coherence of this position has already been critiqued sharply (Quigly, 2012), and Esposito lends further weight to such criticism, prompting us to question the neat separability of owner and owned as well as our ability to determine and comprehend each independently of the other. Instead, we ought to understand that our proprietary subjectivity stands to be continually drawn, manipulated and ultimately potentially dis- solved in response to property claims over the body. What Esposito also allows us to appreciate is that this commodification of the body is not a relatively recent invention of late capitalism but is part of a ‘general transition of humankind towards thingness’ (Esposito, 2012: 96) determined in advance by the contra- dictory structure of property itself. In the liberal model, the world of ownable objects pro- vides a terrain upon which we can achieve the individualizing experience of being a proprietor. A negative relationship not merely exists with respect to other people (my subjectivity is affirmed by my property not belonging to others) but also more fundamentally within the proprietary fold itself: my identity is determined by the dichotomous relation between proprietor and property. However, as the realm of objects proliferates outwards into new virtual technologies and back inwards through the body, one sees an ever decreas- ing scope for the subject to differentiate itself from the objects upon which it depends. Between these two sets of examples we therefore see a twin effect. First, we see the subject extending itself into the virtual world and ending up increasingly reliant upon its new enclosures of property to give itself an enfeebled sense of identity and capacity in the modern world. Second, in the body parts example, we see a movement in the other direction, that is, the world of objects pushes back into the domain of the subject, appropriating what was previously thought to be an inalienable part of the human. Both can be drawn back to Esposito’s (2012: 95) concern about ‘the gradual reification of life’, the manner in which the living element of the human species is increasingly colonized by a proprietary logic. For the pragmatist, resisting these processes of desubjectification entails seeking to restore a sense of proportionality between property and person. This might involve, for instance, pushing back against the increasing colonization of the body by property claims and joining those who ask that we actively seek to limit by law what can be absorbed into market relations. Practically speaking, this argument could lend tentative support to the promotion of inalienable categories of property, for example, in the work of Radin (1982, 1987, 1993) (whilst being mindful of the critique signposted earlier in the article). But a more radical agenda involves recognizing that what is at stake here is not merely economic disparity caused by the virulent work of capitalism but also the very parameters of subjectivity. This position prompts us not simply to reappraise what objects we see as property but also how we see ourselves and how we understand the original forms of community that immunitary structures have inverted. Challenging this trajectory of property at its root means questioning the most basic Lockean conflation of having and being and asking ourselves of the ways our personhood might be delineated not by self- possession but by the ethical and moral responsibilities of existing as part of a community. This is to ask how a more meaningful subjectivity might not be defined by what we have but by the way the very proprietary boundaries of the self, the boundaries that make sense of having, are continually undone in our relations with others.

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 65-70. LJS

In his books and lectures at the end of seventies, Foucault famously argued that from the seventeenth century onwards, “the ancient right to take life or let live was replaced by a power to foster life or disallow it to the point of death” (Foucault 1978, 138, emphases in original). He traced the increasing turn of the art of governing towards the life of populations in a fostering or productive9 manner, and charted the historical emergence of this logic in the development of the liberal system and the later neoliberal variant. This ‘productive’ way of governing stood in opposition to the restrictive character of sovereign power exercises, which mainly governed by directly imposing punishments for undesirable behaviour. In this process of change, medical and technical knowledges became crucial sources of information for the formulation of governmental strategies. However, this connection entailed a wider “problematization” of conceptions of life, meaning that it gave rise to “the development of a domain of acts, practices, and thoughts that […] pose problems for politics” (Foucault 1994, 114): life became a political problem. This chapter argues that the relevance of knowledge over life for questions of governing was even more intensified by the emergence of the informationalised and molecularised vision of life. Laws establishing property over these forms of knowledge gained in significance as a result. A better understanding of the changing role of law in a new way of governing thus can highlight intellectual property’s complex engagement with a politics produced by a molecular conception of life. 1.1. Governmentality’s productive relation to ‘life’ Foucault’s fragmentary conceptions of governmentality and biopolitics were based on his analysis of the emerging bureaucratic state apparatus of the 18th century, in which advances in medical science and statistical method coalesced with newly centralised state power. This opened up an entirely new field of political intervention: the population. Foucault argues that the new emphasis on the life of populations, a biopolitics, was part of the emergence of a new art of governing, or “governmentality”, which “has as its purpose not the act of government itself, but the welfare of the population, the improvement of its condition, the increase of its wealth”, which is achieved by means of “[direct] large-scale campaigns” or “[indirect] techniques that will make possible, without the full awareness of the people, the stimulation of birthrates, the directing of the flow of population into certain regions and activities” (Foucault 2000, 217; see also Dean 2010; 2013; N. Rose, O’Malley, and Valverde 2006; Lemke 2007; 2011; Elbe 2005; 2009; T. C. Campbell and Sitze 2013; Muhle 2008; N. Rose 2007b; Rabinow and Rose 2006; Dillon and Reid 2001; 2009; Dillon and Lobo-Guerrero 2008; 2009). In this sense, the art of governing sought to put into place parameters that would ‘produce’ improved conditions of life – in a sense, “produce what you need to be free” (Foucault 2008, 63). But this very need to produce the conditions of freedom “entails the establishment of limitations, controls, forms of coercion, and obligations” (Ibid., 64). Direct interventions consisted for example of the developments of new norms for the construction of cities (Foucault 2007, 18), and indirect interventions consisted of new social norms for the individual’s responsible and healthy conduct, enforced not centrally, but in a decentralised “capillary” manner (Foucault 1977, 198). In this new art of governing, the population is directly and indirectly incited to contribute to the improvement of two different yet increasingly intertwined priorities of governing – life and the market. Instead of intervening with direct force, government rather “conducts the conduct of men” indirectly (Foucault 2008, 186), thus puts into place arrangements that “govern at a distance” – for example through the intermediary function of the expert translating the goals of government to the individual and incorporating individual demands into advice to policy makers (Miller and Rose 1992; 2008). The epistemological conditions according to which conduct is judged to be appropriate, or conducive to the “right disposition of things” (Foucault 2000, 208), are influenced by the notion of an “economical way of governing”, in which the “constitution of knowledge [savoir] of government is absolutely inseparable from that of knowledge of all the processes related to population in its larger sense – that is, what we now call the economy” (Ibid., 217). This meaning of the term economy 10 encompasses and presupposes the production of different knowledges as basis for appropriate actions of government. Rose, O’Malley & Valverde point out that “[t]o govern […] it was necessary to know that which was to be governed, and to govern in the light of that knowledge” (2006, 87). Scientific knowledge of the ‘nature’ of life became increasingly important, as biopolitical priorities began to determine the “border between the too much and too little […]” of governmental intervention according to “the nature of things” (Foucault 2008, 19). ‘Economic’ governing thus had to adapt to appear appropriate according to the scientific knowledges of life. However, knowledge “of all the processes related to population in its larger sense” (Foucault 2000, 217) also enabled an evaluation of potential strategies according to “the principle of the self-limitation of government” (Foucault 2008, 19). The neoliberal economic critique thus poses a limit to biopolitical strategies emphasising the welfare of populations, as governmentality “will not be content to derive norms of the optimal conditions for the population to expand and prosper. It will balance these considerations against another set of norms […] derived from the delicate, unstable disequilibrium between the population and the resources necessary for its maintenance” (Dean 2010, 137). In this sense, Dean points out that “[a]t one level, liberalism is a version of bio-politics; at another, it exists in a kind of permanent tension with bio-political imperatives” (Ibid., 133). The two priorities of governmentality – life and the market – are exerting challenges to and act as limiting critiques on each other (Ibid., 120). The ‘market’ acts as a central site of this economic critique of governance, acting as “a site of veridiction, […] a site of verification-falsification for governmental practice” (Foucault 2008, 32). Here, an economic calculus replaces the (moral) determination of true and false made by the previous “juridico-disciplinary model” (see for example Foucault 2007, 37 ff.) with “the question of the too much and the too little” of governmental intervention (Foucault 2008, 28). The influence of this calculus on the realisation of biopolitical strategies means that “[population phenomena] are considered as natural phenomena in relation to which one needs to calculate the costs, the required level of expenditure to manage these costs, and the likelihood that the expenditure will achieve the desired ends” (Elbe 2009, 67). This highlights that in governmentality, life is understood in economically contingent ways – and that particular biopolitical strategies are not necessarily primarily beneficial for health as such.11 While a greater priority is placed on the promotion of life and health through governing, any definitions of life are also increasingly understood in terms of economic “cost-benefit” calculations (Ibid.).12 Furthermore, what is judged to be ‘good’ for the population is also extremely contingent on social context and the value judgements made within this context – which is also the underlying argument of Foucault’s explorations of the foundations of contemporary power structures. Scientific knowledge of ‘life’ thus became decisive to the determination of appropriate interventions, which were based on the knowledge of the “regularities” within the population (Foucault 2000, 216). The original conception of life of the population arose from the close study of the individual in the institutions of the penal system and the clinic – where individuals were physically re-educated or disciplined into new modes of conduct (see for example Foucault 1963; 1977). This knowledge of the individual was compiled in an “apparatus of writing” and analysed according to a new comparative system “that made possible the measurement of overall phenomena, […] the calculation of the gaps between individuals, their distribution in a given ‘population’” (1977 Ibid., 190). These observations of the physical body created the notion of the population, and opened up the processes of life to the intervention of politics on the physical level. In this way, the definition of life became “problematised” for questions of governing – resulting in an ongoing process of definition and contestation that continues to raise new questions for political interventions. Foucault highlights similar ongoing problematizations concerning the issue of madness, sexuality, and crime and punishment, and argues that these can never be resolved “completely” by government (Foucault 1994, 114). Governmental interventions in the area of life and the body comprise an individualizing and a collectivizing method (Muhle 2008, 27; Foucault 1978, 139). Two series of power technologies operate “in a double mechanism” on the human body: as a “thorough administration of the individual body as machine” in the case of “the body-organism-discipline-institutions series” of “anatomo-politics”, and in “a planning of life as a biological process according to calculations” in the case of the “population-biological processes-regulatory mechanisms-State” series of “biopolitics” (Muhle 2008, 27 emphasis in original, my translation; Foucault 1997, 250; originally taken from Foucault 1978, 139). Importantly, both levels remain tied to the new logic of “power that has a positive relation to life, that fosters and protects it” (Muhle 2008, 27, my translation). It is argued below that these methods, which address either the body of the individual or the biological processes of the population, are intensified by the new molecular ‘truth’ about life. The genetic code of the individual contains information that can only be interpreted with reference to databases of knowledge compiled from large numbers of people – thus with reference to a new “apparatus of writing” in the language of DNA – but address the body of the individual on the sub-cellular, molecular level, which goes beyond Foucault’s original analysis of the disciplined bodies of soldiers. It is argued that genetic knowledge thus has a more profound effect on the conduct of the individual and also on interventions on the collective body of the population, producing new norms for behaviour but also new problems for governing in the process. Before this chapter turns to this reinterpretation of Foucault’s ideas in the light of the influence of the genetic dispositif, it first sets out how ‘governmentalisation’ manages tensions in an unfolding process of accommodation, and briefly explores the limits of this productive way of governing.

PATENT LAW AND GENDERED FORMS OF REPRODUCTIVE AND INTELLECTUAL LABOR Given the variable impact of patent ownership on women’s lives, developing a feminist analysis of patent law is a complex endeavor. Patent ownership rights benefit some women and their families, but not others. Patentable subject matter derived from human bodily tissues and plant knowledge are extracted from the bodies and minds of some women, while other women become the beneficiaries of such acts of corporeal and incorporeal appropriation leading to patented medical technologies. Social relations of gender, race, class, ethnicity, indigeneity, nation, citizenship, and colonialism all shape and are shaped by a politics of patent law. Understanding patent ownership as embedded within neoliberal, biopolitical modes of governing clarifies how different groups, and their genetic information and knowledge, are being regulated through such privatization. It enables understandings of how the benefits, appropriations, and exploitations of intellectual properties and patent ownership are distributed unequally. In particular, an analysis of the public domain can illuminate how women’s reproductive and intellectual labor is operationalized, in variegated ways, within new bioeconomies regulated by patent ownership. For example, stem cell researchers deploy oocytes taken from certain women participating in the fertility industry. Cancer researchers study the BRCA1 and BRCA2 gene mutations from women with family histories of breast cancer. Additionally, pharmaceutical companies appropriate indigenous women’s medicinal plant knowledge with the hope that it may lead to the next blockbuster drug. Women’s bodies and minds are thus put into service and animated for scientific production as new meanings around reproduction and labor emerge. The material conditions and scientific realities of these examples differ, however the specter of patent ownership resides within each. Material derived from women’s bodies and minds has the potential to become the object of patent ownership and control by inventor scientists. Yet, patent ownership does not haunt everyone equally. Many women will likely benefit from and take advantage of such patented inventions. Such patented technologies may be utilized in the performing of gendered caretaking work for the health and wellbeing of their families as obliged through constraints of biopower. The histories, interests, needs, and stakes of each of these groups of women differs dramatically, but a link between them is their labor. Women are performing new modes of work within bioeconomies structured by patent law rights. Analyzing patent law struggles through the lens of their labor and work enables an examination of how those conditions of labor are diverging, converging, and contradicting as mediated by patent law. To be sure, materials and ideas are also extracted from the bodies of men. Indigenous women in particular share much of the same struggles as the men in their communities against patent law rights. Histories of individual and structural systems of power, however, make it necessary to address gendered social relations and forms of labor within new bioeconomies. Emphasizing conditions of labor admittedly evokes Marxist theories of alienation and Marxist-feminist conceptions of the sex-gender system. Marxist-feminists bring attention to the ways in which females become sources of raw material in the sex and gender division of labor through producing children and conducting domestic work, which results in hierarchal social relations subordinating women.60 Feminist critiques by “women of color” also demonstrates how forms of labor and the sex and gender system differ according to race, nationality, sex, and class.61 Waldby and Cooper argue that examining women’s participation in the bioeconomy as labor helps establish connections between the appropriation of women’s reproductive and intellectual labor.62 I would argue that it also helps with understanding how patent law ownership structures such forms of labor in different and inequitable ways. I would also contend, however, that the line between reproductive and intellectual labor is blurred and unstable. Women who “donate” oocytes for fertility or stem cell research give up their genetic information, knowledge produced by their body for telling cells how to work. Women who “share” their indigenous medicinal knowledge give up their reproductive labor concerning the cultivation and dissemination of plants. Such practices can be understood as forms of labor, albeit variegated. A focus on labor is thus also meant to encourage a distributive justice approach that allocates the burdens and benefits of patent ownership by ensuring the protection of women whose bodily tissue and medicinal knowledge is characterized as public domain material and transformed into patentable subject matter. In this section, I further develop such understandings by conducting a feminist analysis of two seemingly different patent law struggles. The first involves the patenting of breast cancer genes; the second concerns the patenting of a succulent plant. Although dissimilar, each case represents an important site of inquiry for a feminist analysis and politics of patent law ownership.

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 74-77. LJS

The exclusionary and destructive effects of the productive logic of biopolitics are especially noticeable within the IP regime on the international level, as chapter VI of this thesis argues. 14 Here, the fostering of some populations is taking precedent over that of others, one of the foundational conditions of biopolitical governing according to the critical use of the concept of biopower. However, tensions are emerging at the core of the international neoliberal economy, questioning the effects of the IP regime on the lives and health of disadvantaged parts of the (global) population (see WTO 2001; WTO 2002; CIPIH 2006; CEWG 2012a; WHO, WIPO, and WTO 2013). This thesis traces these emerging contestations and the way in which IP here “engage[s] responsively with exteriority, with an outside made up of resistances and transgressions” (Golder and Fitzpatrick 2009, 56). This does not declare the emergence of a global biopolitics in the manner of Hardt and Negri’s comprehensive Empire, in which “a new global form of sovereignty” is ruling “social life in its entirety” in a “paradigmatic form of Biopower” (Hardt and Negri 2000, xii and xv). The analysis rather focuses on tensions within a specific legal regime that operates on the intersection of the economy and genetic conceptions of life – uniquely connecting national jurisdictions with international organisations and standards, and giving rise to debates on the relation of IP and life especially within international organisations at the core of the neoliberal international economy. This specific focus on a particular legal regime seeks to contribute to recent debates about the defensibility of claims about global governmentality and biopolitics (see Kiersey 2009; Chandler 2010; Rosenow 2009; Kiersey, Weidner, and Rosenow 2010; Selby 2007). Selby for example argues that the “scaling-up” of Foucauldian ideas involves a “double reading”, where “[international political relations] are read first as liberal and, on the strength of this, these global liberal realities are analysed as the products of disciplinary and bio-political power” (Ibid., 334; see also Chandler 2010 for a critique of reaching beyond the liberal state). This, he finds, “support[s] what are in essence reworked and reworded liberal accounts of international politics” (Selby 2007, 334). While “global” versions of governmentality and biopolitics are thus criticised for neglecting “the specificity of the international”, some analyses are however endorsed as “bringing to the fore, the diverse liberal discourses, practices and techniques of international politics” (Ibid., 332). Instead of putting forward an understanding of ‘global biopolitics’ in general, in response Kiersey emphasises the potential of Foucault’s work on governmentality and biopolitics to “address the role of economic ideology in contemporary globalisation” (Kiersey 2009, 365). He argues that Foucault’s recently published lectures in particular can provide an understanding of how “contemporary capitalism relies on the market as a potential vector for the solicitation of specific norms of individual responsibility” (Ibid.). Rosenow furthermore argues that governmentality’s strength in analyses of decentred relations of power radically questions the validity of universal categories such as “the international” (Rosenow 2009, 500). She advocates the analysis of “a particular set of practices at a particular site” rather than being drawn into statements of a universalist nature – and shows how different forms of neoliberalism can be found at different international sites, for example in negotiations at the WTO on the import of genetically modified organisms to the European Community (Ibid., 502 ff.). This thesis argues for the use of Foucauldian concepts in analyses of specific debates within core organisations at the intersection of the international neoliberal economy and the international administration of health. IP law is particularly unique due to its connection between the international and the national level, with the US exerting an especially strong influence (Sell 2003; Tyfield 2008). It thus has strong connections to the neoliberal variant of the US as described in Foucault’s recently published lectures (Foucault 2008). This US version of neoliberalism connects life and economic relations in a “theory of political economic practices that proposes that human well-being can best be advanced by liberating individual entrepreneurial freedoms and skills within an institutional framework characterized by strong private property rights, free markets, and free trade” (Harvey 2005, 2). But the IP system’s exclusion of large parts of the global population is also strongly reminiscent of Foucault’s statements on the global dimension of the earlier liberal notion of limitless European progress, which made it “necessary to summon around Europe, and for Europe, an increasingly extended market and […] everything in the world that can be put on the market” (Foucault 2008, 55). In this sense, “[t]he game is in Europe, but the stake is the world” – with “Europe on the one side, with Europeans as the players, and then the world on the other, which will be the stake” (Ibid., 55 and 56). Thus the IP regime stands uneasily between liberal and neoliberal priorities of governing. 15 The exclusion of large parts of the world’s population from any meaningful participation in the making of IP policy, or in the proceeds (be they medicines, knowledge, or profits) asserts a version of 19th century liberalism’s “global calculation” of governmentality promoting European and US progress – comparable to Foucault’s example of maritime law (Ibid., 55). But the extension of IP law to genetic materials and IP’s foundational significance for the raising of speculative capital for the biotech sector (Cooper 2008) increasingly intensify tensions around the ownership of molecular knowledge over life – even on the international level. Importantly, the influence of genetic knowledge reaches far beyond this economic function, as the genetic dispositif redefines life, identity, and well-being pervasively. The molecularisation of life thus also further intensifies tensions around IP on genetic materials. The following sections first turn to these two transformations and the pervasive influence of the genetic dispositif, and then highlight this dispositif’s governmentalising effects on IP law. This generates a framework for analysis that provides a deeper understanding of the changing role of law in a governmental system. The following chapters then illuminate IP’s responsive engagement with challenges, and its function as a “tactics” of government in managing emerging tensions and challenges specifically within this international legal regime.

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 77-81. LJS

Much has changed since the beginnings of statistical measurements of population phenomena. This section argues that in the light of scientific advances since the discovery of the genetic code, and the formation of a much more institutionalized form of international trade with the WTO, Foucault’s original studies have to be adapted to new exigencies raised by an economy of governing based on knowledge of life formed at the molecular-genetic level. The shift to the molecular level of life led to the body being conceived of “on a different scale” (N. Rose 2007b, 44) – which was much more than a mere change of scale in the way that medicine could analyse the processes within the body. Dillon and Lobo-Guerrero argue that this led to the emergence of a “new order of the real”, which consisted of two transformations: of the subject and of the integration of life into the economy (Dillon and Lobo-Guerrero 2009, 9). This section points out that the transformation of the conception of life intensified the governance of individuals and populations, and argues that it is helpful to conceive of the far-reaching effects and influence of the change to the molecular level by introducing the notion of a genetic dispositif. The second transformation of life into value intensified the tensions between the creation of speculative value from life and legal regimes such as IP, which enable this integration. These two transformations, which are particular to the informational-genetic conception of life’s relation to the neoliberal economy, problematize the governing of life beyond Foucault’s original notion, and can better explain the increasing significance of and controversies around IP law. On the basis of these transformations, this section then introduces a framework of analysis that accounts for these contestations and tensions by interrogating changes on the level of truth, the subject, and emerging strategies for contestation. 2.1. The molecular transformation of life and the emergence of a ‘genetic dispositif’ The scientifically accepted definition of the essential content of ‘life’ has undergone dramatic change since the discovery of the genetic code. The magnitude of this change is akin to that described by Foucault at the emergence of 19th century observational methods in the “clinic”, transforming the clinical “gaze” (N. Rose 2007b, 44).16 This transformation of observation adjusts “[n]ot only the names of diseases, not only the grouping of systems[…]; but the fundamental perceptual codes that were applied to patients’ bodies, the field of objects to which observation addressed itself, the surfaces and depths traversed by the doctor’s gaze, the whole system of orientation of this gaze” (Foucault 1963, 64). The shift to observations of the molecular-genetic constitution of patients entails a “transformation of what it is to be a living thing” (Dillon and Lobo-Guerrero 2009, 2), and in extension also what it is to be a patient, as shown in the emergence of the “pre-symptomatic ill” based on genetic definitions of risk (Wehling 2011, 234). Now, instead of curing illness, medicine can “transform its basic logic […] to one engaged in the molecular reengineering of life itself” (Rabinow and Rose 2006, 212; emphasis in original). This turn also involves a change from a chemical conceptualisation of the body to an informational-genetic one, which has a strong scriptural element: “[c]ontemporary biology has ‘dropped the vocabulary of classical mechanics, physics and chemistry […] in favor of the vocabulary of linguistics and communication theory. Messages, information, programs, codes, instructions, decoding: these are the new concepts of the life sciences’ […] If we are to understand life, its message must be decoded before it can be read” (Canguilhem 1994, 316–317; quoted after N. Rose 2007b, 44). In this way, the shift brought about “a redefinition of life: life as meaning” (Ibid., 44) – interpreted as a somatic destiny which gives rise to new rights and responsibilities of the individual (N. Rose 2008a; McNay 2009; Metzl and Kirkland 2010). In a new somatic ethics “[h]uman beings identify and interpret much of their unease in terms of the health, vitality, and morbidity of their bodies; they judge and act upon their soma in their attempts to make themselves not just physically better, but also to make themselves better persons” (N. Rose 2008a, 46). This somatic reinterpretation of identity however also poses a political challenge, as governing has to adjust to new knowledge of the population determined by genetic science, and the demands of (pre-symptomatic) patients made on the basis of new conceptions of wellbeing and illness.17 This transformation of “what it is to be a living thing” (Dillon and LoboGuerrero 2009, 2) led to an intensification of the problematization of life and thus to an increasing emphasis on strategies for the governmental management of tensions arising around the informational-genetic conception of life – which has a far-reaching influence on the subject and throughout society. It is argued here that this central influence can usefully be subsumed under the notion of a ‘genetic dispositif’. As already pointed out above, the study of governmentality shows how the body is governed on two different levels: individual disciplinary anatomo-politics, and biopolitical strategies aimed at the population directly and indirectly. These different levels of power exercise often come together in Foucault’s work as “concrete arrangements (agencements concrets)” (Foucault 2008, 140; Muhle 2008, 30), or ‘dispositifs’18. Agamben defines the term dispositif as “a heterogeneous set that includes virtually anything, linguistic and non-linguistic, under the same heading: discourses, institutions, buildings, laws, police measures, philosophical propositions, and so on. The apparatus itself is the network that is established between these elements” (Agamben 2009a, 2). He points out that Foucault never defined the term in detail, even though it is central to many of his works on governmentality. Foucault stated: “The apparatus is precisely this: a set of strategies of the relations of forces supporting, and supported by, certain types of knowledge” (quoted after Agamben Ibid.). The “deployment of sexuality” is an example of such a dispositif (Foucault 1978, 140, emphasis in original), where “sexuality allows for the accessing of life in both conditionalities, the individual life of the body and the global life of the species”, sexuality being “at the same time essentially individual (…) and essentially global”, and “functioning thus as a political dispositif, which connects the individualising techniques of discipline with the globalising mechanisms of regulation” (Muhle 2008, 31, my translation; also Foucault 1977, 149). This thesis argues that the concept of the gene (and genetic knowledge in general) is ideally situated on the axis between the individual and the population, as a central code that enables the formulation of individual disciplinary actions and collective biopolitical strategies in the name of life. Genetic information gives on the one hand a very individual account of ‘life’, but at the same time the interpretation of its implications in terms of likely illnesses involves a large amount of statistical data gathered on a population or even global level (Rouvroy 2008, 3; Raman and Tutton 2010, 721).19 Deciphering an individual’s personal genetic code provides knowledge about future risk potentialities that incite individuals to more responsible conduct, and to act on themselves in order to better their condition (N. Rose 2008a; Rouvroy 2008, 55 ff. - Rouvroy refers to this as the gene’s “disciplinary” power). The generation of genetic knowledge on the population level enables the evaluation of the individual sample – but it also provides a valuable dataset of the population’s genetic make-up, which can be used for the targeted deployment of biopolitical strategies. Thus this thesis argues that the genetic code can be seen as a dispositif in the Foucauldian sense – addressing life in collective and individual “conditionalities”. Understanding the genetic dispositif as such a power/knowledge apparatus draws attention to its intensifying potential to bring about far-reaching effects and amplify modes of individual and collective governance. Re-reading the relation between IP and conceptions of life in this context reveals how they are centrally placed at a very significant intersection between increasingly important technical knowledge for governing, and an intensified problematization of life for questions of governing, enhanced by the influence of the genetic dispositif. This influences and redefines individual and collective identities, as for example pre-symptomatic patients join interest groups demanding greater control over the direction of research on their condition, and individuals are encouraged to contribute to the formation of profitable ventures such as population biobanks. IPRs thus have to govern the economic use of technical knowledge in a political sphere that is marked by the increasing influence of the informational-genetic conception of life. This growing influence of the genetic dispositif however also complicates the function of IPRs. The informational-genetic understanding of DNA has only recently been formally accepted by IP law (in Assoc. for Molecular Pathology v. Myriad [2013]), threatening to unsettle IP’s economic role as information alone is not patentable (see chapter IV). As IP negotiates tensions between patentability and the normalisation of informational-genetic conceptions of life, it also plays particularly important other roles in a neoliberal economy, as the second transformation of life into value shows.

Sociologist, Centre of Genomics and Policy and Faculty at the School of Sociological & Anthropological Studies, University of Ottawa, Canada Responsible intellectual property rights? Untangling open-source biotech adherence to intellectual property rights through DIYbio, ()

Why in America, country of democracy par excellence, does no one raise against property in general the complaints that often resound in Europe? Is it necessary to say? In America there are no proletarians. Each person, having an individual possession to defend, recognizes in principle the right of property. Alexis de Tocqueville, Democracy in America Since Louis Pasteur was granted a patent, both in U.S. and Europe, on a process for beer fermentation in 1873, the realm of the living has been directly affected by intellectual property (IP) rights [1]. However, the biological organism, recognized as neither machine nor factory, remained unpatentable as an individual entity for over a century.1 In 1980, the conclusion of the Diamond v. Chakrabarty case put an end to said social consensus. It broadened the legal scope of the theory of manufacture, underpinning patent law, so as to allow the inclusion of biological entities [2]:269). In the same year, the promulgation of the Bayh-Dole Act led to a dramatic extension of the scope of IP rights, whose effects TRIPS (trade-related aspects of intellectual property) agreement has globalized [3]. A new age for IP rights on life forms began, reshaping both the biotechnology industry and public research. In the wake of such social, cultural, ethical, and legal transformations, the technoscientific-industrial complex of biotechnologies entered the twentieth century under a sword of Damocles: the “tragedy of the anti-commons” [4]. On the threshold of the purported post-genomic era, eyes turned to the hacker ethos, as formalized in the figure of the distributed/open-innovation paradigm of open-source framework [5], as an antidote to this state of affairs [[6], [7], [8], [9], [10], [11], [12]].2 The open-source model emerged as a lifeline allegedly providing transparency and publicity—and thus "morality" [13]—lacking in biotechnology since the neoliberalization of technoscience [14,15]. Gaining institutional shape at the turn of the century, synthetic biology represents the first biotechnoscientific effort to have, from the very beginning, trumpeted loudly and widely its will to model its organization and production after an open-source approach to innovation [10,16]. The inspiration drawn from open-source philosophy, frameworks, and licensing was paramount to the point that its founders considered christening it “open-source biology” [17]:116). It has also fuelled crucial discussions “about the right mix of proprietary control and open access in the field” [18]:34). As the historian of science Luis Campos notes, “[m]atters of IP have been a characteristic and recurring concern of synthetic biology since its very birth” [17]:116). This concern has given rise to a substantial literature drawing on ethnographic, theoretical and documentary approaches to tackle IP issues in synthetic biology from perspectives as varied as sociological [[18], [19], [20], [21]], legal [10,22,23], historical [17], and technological development [24]. I aim to contribute to this body of work with a different approach and analytical focus: qualitative interviews with enthusiasts of Do-It-Yourself biology (DIYbio), a. k.a. bio-hackers. How practitioners of the most active and evolved endeavour of an open-source biology biotechnology, which can be defined as the public arm of synthetic biology, see and think about IP rights system? How do supporters of a hacker-approach to biotechnology conceive the patenting of life forms and the IP regime in general? How biohackers' attachments to open-source interrelate with their conceptions of the IP system more broadly? Grounded in science studies, and drawing principally on scholarship on hacking and biotechnology, this paper probes these questions through a discursive analysis of biohackers' perspectives on IP rights system. After an overview of the DIYbio phenomenon and the methodology adopted in the study, the paper delves into interviewees’ relationship to the IP system. The analysis highlights an unstable stance, oscillating between, and at times hybridising, compliance-disapproval. I propose to grasp this perspective through the concept of responsible IP rights (RIPR). Related to responsible innovation (RI), the latter is particularly committed to (bio)technological innovation through normative ideals of open-source such as inclusiveness, horizontality, participatory practices, and individual autonomy. The conclusion sketches some implications ensuing from this relationship to the IP system. 1. Open-sourcing biotechnology with do-it-yourself bio Founded in 2008 in the neighbourhoods of the Massachusetts Institute of Technology (MIT), DIYbio may be said to be the most advanced effort to date seeking to translate the hacker approach of software development into biotechnosciences ([13,25]:242).3 This global network of wet-laboratory initiatives aims to “do biology” as hackers have done informatics: in an “open,” collaborative, egalitarian and nonconformist way, accessible to neophytes and to anyone else willing to practice molecular biology and biotechnology in a non-institutional setting [26]. DIYbio positions itself in the genealogical lineage of two major U.S. cultural phenomena: computer hacking, which under the form of open-source [25,27] has spread since the 1990s, and the DIY (Do-it-yourself) tradition of individual empowerment [28,29], also evolving under the Maker logo ([30]; see also [31]).4 Aligned with a bio-making regime ([32]; see also [33]), bio-hackers claim the right to experiment with molecular biology and biotechnologies [34,35]:104–144; [36], as they tinker with equipment, reagents, protocols and microbes in harmony with hacker norms [13]. From geeks to artists, to students, to curious neophytes, and higher education graduates in biotechnosciences more or less weary of academic or corporate world, DIYbio laboratories bring together people with the most heterogeneous tastes, backgrounds and objectives. Like in hacker culture, where technological innovation, exaltation of personal autonomy, and democratic markers become entangled [[37], [38], [39]], DIYbio activities may be undertaken with educational, personal, entertainment, entrepreneurial, expressive, or artistic purposes, in unison with a utilitarian bioeconomy, or as an end in themselves [40]. In the same vein as personal computing, DIYbio strives to convert biotechnologies into “personal biotech” [30]; see also [13] by instilling the ideal of individual autonomy into the practice of biotechnologies [13].5 DIYbio is thus seen as biotech “produced by and for the people” [13]:240; see also [32,41]. Thanks to the development of bio-hacking, artisans, inventors, and tinkerers would be able to appropriate genomics, microorganism cloning, microbiology, and genetic engineering for their own sake. Biotechnologies would then no longer be “received” as they are now (because born according to the standards of institutions and corporations), but designed by everyone for bespoke purposes (such as microbes modified to shine a singular color, or to synthesize a specific nutrient or pharmaceutical, or designed to make art). The DIYbio project is also beholden to its contemporary biotechnoscientific underwriter, synthetic biology. This discipline combines, in its own way, a penchant for bio-manufacturing [42] with a hacker ethos [43].6 Institutionalised in the early 2000s in the cradle of MIT's hacker culture, synthetic biology leaders have strived to find technical, legal, social, and material ways through their wishful “open-source biology” [17]. Notably, open-source openness ideals have been infused into the trademarked socio-genetic object that has given it a unique identity, i.e., BioBricks parts: standardized, functionalized, modularized, and interchangeable DNA sequences made to fit electronic engineering construction principles [20,35]:61, 129). Its promise to transform biology into a tool and a platform for innovation, creation, and design accessible to all [44], inclusively along the lines of a personal biotech (see [21]), lends DIYbio's mission technoscientific plausibility: “As synthetic biologists made bioengineering technology easier and more accessible, [the cofounders of DIYbio] promoted wider adoption among the public” [40]:5). More precisely, DIYbio and synthetic biology are conceived here as entangled and symbiotic objects.7 Genealogically, DIYbio network counts on the support and encouragement of synthetic biologists [35,42]. Socio-culturally, synthetic biology's annual competition of MIT, i.e. iGEM (International Genetically Engineered Machine competition), produces (and welcomes) a significant number of DIYbio enthusiasts [42,45]:130). Techno-epistemically, they share a desire to deskill bioengineering [42,46,47]. Their common allegiance to the open-source model, as the grounds of their promise for a user-friendly bioengineering accessible to all [20]:177), weaves them together ideologically as well. The hacker ethos of software development was given legal form in 1985, by Richard Stallman, under the figure of free software. However, it was as of 1998, under the less business-off-putting open-source label, that the hacker ethos was acknowledged as a felicitous framework for independent and collaborative work, capacious enough to encompass norms as accessibility, transparency, sharing, co-production, freedom, self-determination, horizontality, egalitarianism, and participation [39,48]. Thanks to its political neutrality and ideological elasticity, open-source may be appropriated by allegiances as diverse as incompatible [38]:185–205), which grants it a place in the productive-system of the open-market economy [48,49]; see also [50]. As individualists who are neither possessive nor selfish, hackers have forged an IP model to their image, one which allows them to innovate by sharing, following a cumulative and collective approach, while retaining individual freedom and autonomy [[37], [38], [39]]. The hacker model of technological production proceeds from a “recursive loop” [51] of re-creation, repurposing, and betterment, “which above all requires access to other people's work” [38]:118). For my purposes here, IP system can be divided into two main figures: copyright, which protects the expressive value of creations, and patent law, which is applied to instrumentally tangible inventions. Patent rights were designed to act as a drive in the invention process8: as a social recognition of, and compensation for the efforts undertaken, they grant patent holders a temporary monopoly right over their inventions, and the corollary “right to sue” [3]:145). For their part, open-source software protection licenses, popularly known as copyleft, are distinctive. Firstly, software is in a legal limbo with IP: source code consists both of “[…] an expressive medium, like writing or speech, and a tool that performs concrete actions” [39]:118). Secondly, in open-source, property is conceived as distribution [52]: IP copyrights are claimed to guarantee holder's distribution rights over software source codes and the necessary freewheeling in the unrestricted and unlimited modifications-to-come, rather than to enforce the holder's protection rights over authorship work. The redistribution of agency, power, and knowledge [39] that emerges from open-source publicity devices, conceived for sharing information and development methods of a digital technology, endows the hacker paradigm with much of a visceral cultural power: “It is about making things public,” emphasizes cultural anthropologist Christopher Kelty [39]:x). Sociologist Jane Calvert has scrutinized the motivations underpinning the adoption of the open-source model by synthetic biology. The drivers appear as manifold: she observes a pragmatic desire to bring bio-innovation to its full potential by opening/distributing innovation agency, often conjoined with a democratic aspiration of claiming a political right to access biotechnologies (2012; see also [44]. DIYbio, by framing biotechnological practice and innovation9 as a matter of public rights and “a mode of political speech” [35]:105–144; also [41], tightly weaves democratic/biotechnological development threads.37 Consonant with the typical duality of open-source, bio-hacking is seen as standing “between activism and entrepreneurship” [53]: while several DIYbio projects evolve towards entrepreneurial ventures, and DIYbio labs incubate and coach start-ups [54], other DIYbio teams nourish market-free intentions [55]. The relationship of DIYbio world to the IP system tends to convey a similar tension as the one driving the adoption of the open-source approach. On the one hand, the extant literature shows that patent rights tend to jeopardize the pursuit of DIYbio projects [56]:163–171 [55,57]:32–35; [58], on the other hand, it pinpoints that the questioning of IP rights within DIYbio communities remains open or should not be taken for granted [25,30,55]:169,172). To be sure, the plurality of actors, the heterogeneity of local communities and projects, the normative ambivalence, and the political ambiguity that surrounds DIYbio [13,59] advise against generalisations. Without losing that of sight, I introduce the concept of RIPR in an attempt to allow us to get beyond the apparent tension and make sense of it, while accounting for the fuzziness of DIYbio stances. 2. Methodological considerations The analysis presented here stems from broader research on bio-hackers’ worldviews. By that I mean the set of ideas, values, norms, and representations on a variety of pivotal topics involving their practices. The focus is thus not on the legal soundness of their perspectives with regard to the legislative apparatus of IP rights, nor in sketching a socio-legal synopsis of what could be an open-source IP in biotechnosciences. Instead, the goal is to expand the understanding of the symbolic pool that loads biohacking practice with meaning, contributing thus to a synthetic understanding of the socio-historical transformation underlying “open-source biotech.” With this in mind, a semi-structured interview guide was designed following a comprehensive-sociological approach [60]. In addition to a question on interviewees’ trajectory, it included six main themes defined on the basis of the research goal, the extant scholarship on bio-hacking and DIYbio literature as well as on issues surrounding the biotechnology field more broadly. The themes were the following: the personal interests in DIYbio (1), the use of the term bio-hacking and the DIYbio claim of hacker lineage (2), ethical implications involving the biotechnoscientific manipulation of life forms (3), contemporary science issues identified by participants and the DIYbio hands-on approach to scientific democratization (4), the relationship between DIYbio and synthetic biology (5), IP and patent systems, the open-source alternative and entrepreneurship in DIYbio (6). The recruitment process sought to account for different views: those of the founders of the Canadian DIYbio initiatives, the members of the DIYbio network with hacker and synthetic biology backgrounds, and the dissonant voices within the communities. In respect to the latter, observations of meetings of two community initiatives were paramount, because these allowed me to identify DIYbio enthusiasts whose positioning or trajectory stood-out, making them potential participants. Of the fifty-nine direct and indirect members of the DIYbio network10 invited to participate in interviews, twenty-six took part, and one subsequently asked to withdraw. The twenty-five interviewees (eight women and seventeen men) are active in art, ICT (information & communication technology), media studies, software development, life and medical sciences.11 All interviews were conducted in person with participants located in Canada, with three exceptions (which resulted from the so-called snowball strategy and gave rise to three interviews with video support with one participant located in the US and two in a South American country). Recorded with permission of the participants, the interviews were conducted between July 2013 and June 2015, and lasted between 1 and 3 h. Most took place in English, a few in French. Interviews were analysed following semantic-structural methods as conceived in the sociology of knowledge by, among others, Paul Sabourin [60].12 The analytical framework was both theoretically grounded and reoriented in the light of empirical data, in a cyclical dynamic [61]. Over the process of segmentation of the excerpts , I gradually identified contents relevant to the research object and defined empirical categories. Consistent with a comprehensive approach, the contents of the empirical categories were first examined on a monographic level, in an attempt to delve into each participant's socio-symbolic universe. Then I engaged in the transversal analysis, focused on the relationships between categories which allowed me to find a cognitive organization of the discourses and obtain a synthetic view of the object (in this case, IP). Despite a concern for identifying commonalities and discrepancies in interviewees’ perspectives according to the various socio-cultural backgrounds mentioned above (art, ICT, media studies, software development, life and medical sciences), with regard to the discussions on IP rights and patenting no identity boundaries between the groups have proved productive within the limits of the research corpus. However, as some socio-cultural backgrounds are only singly-represented, for anonymity protection, I make use here of a threefold identity typology that did prove productive with respect to other dimensions of the research. It consists of biotechnoscience academics (referred to as academics in the following, and composed of fifteen undergraduate and graduate students, university professors, doctoral and postdoctoral researchers), techies (savvy technologists assembling seven computer scientists and ITC people, hackers, communication, and medical science participants, who express an axiological valorisation of the hacker ethos and a need for personal and intensive contact with various technological devices), and artists (three).13 3. A responsible IP In the interviews, the question on traditional IP and the patent system is the one eliciting the most nuanced responses. Frequently preceded by sighs, laughter, or expressions suggesting a certain despondency (such as “this is a complicated question”), the answers are grey-hued: the participants only rarely express firm positions. In contrast, with few exceptions,14 their attachment to the open-source property model is straightforward. The analysis reveals a relationship to the IP regime that is simultaneously resistant to and compliant with IP rights. I use the heuristic concept of RIPR to grasp the contours of the tension underlying their critical adherence to IP regime. RIPR echoes RI. Forged in the wake of nanotechnologies public-investment hype, RI is the current modulation of (expanding) European policy-making for democratic governance of Research & Innovation [62]. RI discourse may be understood as an attempt to frame a more democratic and efficient technoscientific innovation process, from research to distribution, while being responsive to values such as inclusiveness, social acceptability and desirability, “openness,” and sharing [63,64]:420–421). RIPR encompasses these values,15 but it goes beyond the RI claim of innovation “for” and “in” society (shaped by citizenry standards and preferences) [65], fully engaging with innovation by society (shaped by the hand of its citizenry). Said otherwise, biohacker individuals and communities (elsewhere also identified as players in synthetic biology RI [66] sharpen the extant tension between collective-individual responsibility palpable in RI [62].16 Interviewees tend to approve of IP rights over living things as long as these rights allow others to access and do not halt the typical hacker innovation spiral process dependent on free/open reappropriation. This idea comes up eloquently in techie Laetitia's narrative: “[…] I don’t see anything wrong with someone having a patent, but you know, still having it ‘usable.’ […] you can have free licensing, you can say: ‘Yes, I patented this, but here: anyone can use it,’ or ‘yes, I patented this, but you can use it as long as you don’t [make profit] from it’ […]. Cause I think, there is definitely that aspect of it: […] if you create a new species or some sort of patentable item, I don’t think there’s anything wrong17 with wanting to protect your intellectual property from being stolen from Monsanto or some larger company. But I do think that you should remain true to the spirit of openness within the do-it-yourself community because we’re obviously cash-limited. And prohibiting someone from using some types of DNA is just ridiculous! So, I think there is a balance between abusing intellectual property rights and, I think, […] just a responsible level of ownership …” Laetitia transposes a central commitment of the open-source licence-based ownership regimes (the protection of users’ rights to access and appropriate a technical object, discussed in section 1) to patent rights. Accordingly, the application of IP rights over living things can have an “ethical” status provided that it does not prevent public access to a biotechnical property. Indeed, patenting-ensuing legal ban on use of basic bio-entities, such as DNA, is roundly denounced by many interviewees. Laetitia points to BioBricks as one of the solutions addressing such challenges. The BioBricks IP regime is one of a kind. Falling neither into patents nor copyrights,18 BioBricks use is framed by the BioBricks Public Agreement (BPA), a legal contract that merges both “openness” and “closeness”: on the one hand, BPA guarantees BioBricks’ users legal immunity in the appropriation of these genetic sequences (section 1), which may or may not be protected by IP rights, notably patents; on the other hand, it allows patent filing on “new materials and applications” built with these same genetic sequences [67,68]—however flimsy may be such a distinction.19 In fact, because BPA constructs the “creative users-innovators” as “the most important subject [individual or collective] to empower” [21]:199), it frames their autonomy as deserving full protection. Furthermore, the synthetic biologists fostering BioBricks regime state: “We're not against patents per se” [67,68]: their concern is rather to instil “diversity” into the IP and innovation ecosystem [20]. Likewise, for some participants, the problems generated by the IP regime are not inherent to the “closed” ownership modality (which keeps data and tools relating to the reproduction and appropriation of innovations secret or protected ); instead, they are seen as pertaining to the lack of balance between closed and open ownership modalities that puts the productive system under the yoke of the former. Such is techie Tomas' vision, for whom a hybrid regime, where closed and open IP regimes co-exist, “clearly is a good spectrum."20 Academic Colbert elaborates on this perspective. For him, a balance is to be found between innovation “stimulation” and “rewarding,” between ensuring the non-enclosure of “essential parts” and the commercial protection of final products: “[ …] I think, it’s always this balance between stimulating innovation and rewarding innovation. But, yeah, I think it's good that certain things, especially the essential parts should be always open access […]. But then, specific uses of these, if somebody combines seven genes with certain regulatory elements and creates a new product that serves a certain purpose, I think that should be protectable because probably it has cost a lot of money, somebody had to invest time on that, and these also probably provide some kind of benefit to society. So I think it's understandable that these should be protectable. But there's always this balance: protecting final products but never protect the tools to create these final products." In its “effort to prevent overly broad patenting of parts” [21]:190), which could culminate in patent thickets [17]:137), the normative-legal arrangement set up by Biobricks regime actually conveys how many interviewees tend to frame the scope of IP rights over life-forms: patenting of final biotechnological devices is acceptable, but the enabling resources and tools required for bio-innovation, such as DNA sequences, genes and regulatory networks, must remain “accessible to all” in order not to disrupt the bio-innovation spiral. RIPR, I argue, shall conform to such norms. Each of the following subsections unfolds the rationale underpinning participants’ peculiar and syncretic conception of IP rights, grasped through the lens of RIPR. The first two explore why, instead of an outright rejection, interviewees express a sympathetic attachment to the IP system, and the latter, why RIPR implies restraint on the scope of some IP rights. 3.1. Patent rights as a dysfunctional imperative Interviewees are not full-throated supporters of the traditional IP rights system, or of the patent system in particular. Yet, they remain on the side of reform. This is due, notably, to the pivotal role they ascribe such rights in innovation regime. The qualifier responsible in RIPR aims at accounting for such ambivalence. It is not uncommon for participants to preface their responses to the question of IP and patent systems with formulas that at first glance suggest an absolute refusal of the patent production system, such as “I hate the patent system,” or “in principle, I am against patenting.” However, little by little, they come to admit the legitimacy of patents' original raison d’être, or at the very least to narrow their initial criticism to particular practices, such as patent trolls.21 Melding together critique and necessity, the case of academic Taiyp stands out: “Huh … ! I hate patents. They are necessary, but they are also absolutely absurd. They’re absurd because a lot of people, [the] ‘patent trolls,’ [they simply write a theoretical document with no experimental research being made].” The idea that the issues with the patent system rest in the way it is applied is virtually unanimous among the participants. Corrupted with regard to its original mission to feed invention processes, the patent system has become dysfunctional, explains techie Harry: “[…] the patent system is really broken in high-tech, like fundamentally broken, really fucked up. […] it’s being used in an anti-competitively way, in a way totally counter to the original idea of a patent, [that is] to reward inventors for doing the hard work of inventing […]. [Now,] basically, huge hipping piles of money, instead of being spent on more innovation—which is what the patent system is supposed to be doing—, is spent on lawyers and ridiculous lawsuits, [fines, penalties, trade injunctions].” At the core of the dispute between the biohackers interviewed and IP rights rests what can be called a perverted use of the latter: “So I think it's a good idea, but a very bad implementation what we have on patents [rights now],” sums up academic Mateo. IP regime is decried to the extent that it allows acknowledged shady practices—e.g., patent trolls, patent thickets [69], granting protection rights for “trivial changes,"22—in a situation of financial and temporal inequity between oligopolies and small players (see [7]:266–267).23 There tends to be a consensus on the need to reform the patent and IP systems, but there is no question of abandoning them as such, including when the subject matter is biological.24 The issue of bio-patenting also brings interviewees to side with grey discursive areas.25 Artist Theodora's positioning illustrates the common hesitation and reluctance among participants to take a strong stand on the subject as ethical stances get diluted by pragmatic considerations. Theodora declares from the outset to be against the patenting of organisms, while conceding that the troublesome protection granted by the patent system may be required for the survival of small innovators. However, given that the system typically works in reverse, she claims that it must be modified: “That’s a complicated issue [the patent system and IP] … That’s quite complicated … [long pause] I mean, I’m definitely not for patenting organisms […], but I’m also not, I mean … the problem with patenting is not to protect somebody’s right, is to protect somebody’s business. So although I do realize that patenting some stuff may protect a small business from the big business, most of times is the other way around. I think it should be modified in some way.” Teodora's case illustrates another tendency among the interviewees: to portray bio-innovators as hostages of a system they must call upon for the sake of protecting themselves. The idea of bio-innovators taking part in the patent system under constraint is grounded on a common belief that “protection” of inventions against the cornering of bio-innovations by competitors is non-negotiable in the market. In the words of the academic Birame: “I realized if you can't patent something […] someone can just copy you and take it from you.” For techie Laetitia, if the innovator wants to ensure that the access to her/his innovation remains “open,” the claiming of IP rights is also required as a way of protecting inventions against the exercise of possessive ownership regimes: “[…] if you don’t patent ever [your invention], or have any kind of copyright over it [because you want to make it open], someone else can do it [patenting] and make it close.” Known as “self-defence” patenting, this strategy is practiced and to some extent encouraged in the open-source milieu [58]:205–206). Free software hackers also faced this cul-de-sac, having had to resign themselves to “the absolutely essential nature of the license—without it, software can be made proprietary again” [70]. This explains the open-source paradoxical modus operandi in its creation of a pool of “common goods”: it can only build a “commons” by legally enforcing IP rights; its licenses disrupt IP rights without knowing how to do without them.26 The feeling of having to take part in the patent system unwillingly is even more evident in the accounts of two academics well advanced in their careers. Senia is one of the few participants, of the three groups, to declare herself unconditionally against the patent system.27 Yet, should a researcher want her/his discoveries to end up as a pharmaco-innovation, she explains, there exists no choice but to claim IP rights: “In general, I am absolutely against [patents and IP]. […] I agree with [the inventor of the polio vaccine, who refused to patent it saying that it belongs to everyone].28 [However,] if you create drugs [and] you want the drug to be available to everyone, [you must have IP rights] […] because only the big pharmaceutical companies are able to do all required tests to get the drug approved, [and the big companies only buy the drug when IP has been claimed]."29 As we see, even those participants arguing against the patent system remain trapped in its infrastructural and symbolic fabrics. To be sure, participants' despair encompasses to some extent artist Theodora's despondency when she envisions the future of innovation in DIYbio: “I mean, we're living in a capitalist system, so …” The reasons for the fatalism are beyond the scope of this analysis; more intriguing here is the weight, or burden, of the current biotech political-economy on DIYbio enthusiasts, so much so it seems to narrow their imagination of a bio-innovation regime unleashed from IP rights supra/infrastructure. That being said, it is also telling that participants barely elaborate criticism on the principles of the patenting production system (such as the competition model [71]).30 As the next section shows, their priorities appear to lie elsewhere. 3.2. For Innovation's sake If moderation may qualify most interviewees' stance on patents, this is not to say that this family of rights does not run counter to the skein of values of some of them. Curiously though, even in those cases, the participants come to express an indulgent attitude towards patenting. I suggest that in the DIYbio world, an even more fundamental commitment than an individual's ethical (in)disposition towards patenting exists, namely, innovation. In the name of innovation, interviewees are willing to make concessions with respect to possessive IP rights. This chief-component of RIPR discourse is observed in a crystalline way especially among techies. Techie Vania spoke eloquently in this regard at various times. Here she argues that to the extent that lives are at stake, the field of biology is unique in the high-tech innovation regime: “The potential for do-it-yourself bio […] is so huge and could mean so much to humanity and the other species on the planet that […] … I can’t even think of a strong enough word. I think it’s horribly, horribly unethical to try to profit from things that we should all have access to [such as life-saving drugs]. […] anything that I do, in technology, in biology, I open-source. Because I want everyone to have access to it.” Later, a politico-normative softening takes place: “[…] the fact that it [the patent system] is not something that I enjoy and value doesn’t mean that it shouldn’t be valued, you know […]. I have my personal preference, which is that I’d like to see everyone to give stuff away for free, but I know that’s not reasonable [laughs]. […] because I know people who are using the DIYbio tools to build a company. And I think that’s great, that’s awesome! Just not […] for me, but it doesn’t mean they shouldn’t do it.” Vania's case is telling. It indicates that even biohackers most-convinced about the ethical deficit of IP rights over biotechnological products can accommodate the principles, norms, and effects of the system. Even though Vania rejects the private appropriation of innovations, particularly biotechnological, her ethical position remains confined to a matter of personal disposition. As such, it is unable to reach the political-claim threshold necessary to ground a collective contest of IP rights over living forms. On the contrary, Vania emphasizes that even though she holds this system in low esteem, she respects its use among her peers.31 I see a twofold imbricated-spring at play here. The first relates to the conception of innovation as a sovereign good—the sacralisation of invention and innovation activities as a value and as a right [72]:209). Biohackers’ autonomy in biotechnological practice can be said to be proportional to their capacity to innovate32: from gaining independence from commercial products and the academic system, to obtaining political support from governments and financial support from investors and communities, they must leverage their artistic, creative, inventive and entrepreneurial potential. The development of (bio)innovations appears to produce such a fascination effect that it casts a shadow on personal ethical, moral, and ideological considerations. This trend can be observed also unfolding in well-known DIYbio projects such as Real Vegan Cheese, which, while self-declared as an “anti-Monsanto” avatar, opens itself up to contributions from large bio-corporations [74]:166). The second amounts to the normative individualism, in the sense of self-determination and subjective autonomy, that infuses hacker culture [37,38,75]; see also [31]:61, 127–172). By commanding each subject to stand up for the right of others to embrace their rights to patenting, it makes unlikely the collective construction of a utopian project that might socially, politically and economically call into question IP rights over bio-entities. It encompasses communication scholar Alessandro Delfanti's claim that the animosity the Bayh-Dole Act sparks in some DIYbio enthusiasts is due to its interference with individual rights, not to its role in knowledge commodification or academic capitalism (2013:125). As we see, biohackers may consent to IP system by proxy, because even when they happen to personally disapprove of it, the prominence of individualistic liberal philosophy entails respect for the right of others to make use of their legal rights to patenting. Here it is relevant to recall that the issues raised by the IP regime reach into the ideas of individual rights and property, and in this sense, Mario Biagioli argues, addressing the contemporary challenges raised by this system calls less for the implementation of new ad hoc policies than for confronting the historical transformation of what used to be a privilege into a new “right” ([76]:36). Yet, the path taken by DIYbio phenomenon appears to be at odds with such an approach. Signs of this individualistic philosophy also surface expressively in techie Laetitia's discourse (herself a computer hacker). Below she exposes the dissonant stances on patent rights extant within the open-source community as a matter of personal preferences. Her own positioning with regard to the patent system and her argumentative starting point contrasts with Vania's, but the arrival point is an analogous conciliatory posture: “Hmm, that’s really a tough question [the patent system] … […] I don’t think there’s anything intrinsically wrong with patents. Which is not something that a lot of people in the open-source community say, [there is a bit of a divide in the community about patents, most of us say ‘we don’t want it, at all’]. […] of course we want to keep things as open as possible, but there’s still the looming fear of being taken advantage of by larger companies […]. Some people don’t mind [being taken advantage of]. So that’s cool [and it] is totally acceptable too […].” The paramountcy of the ideal of individual self-determination and the reformism, rather than a revolutionary spirit [39]:65), observed in hackers, surfaces in DIYbio adepts political restraint. As with computer hackers, interviewees appear to be more inclined to an individualistic stance, based on normative and prescriptive constraint, than to a clear political positioning on eminently ideological, axiological, political and disruptive issues such as IP on living. Even teams behind DIYbio projects described as “antibiocapitalist” are willing to limit their action to the (bio)technique realm, “[avoiding] directly or systematically confronting the established political institutions of biocapital” [55]:88). More precisely, the commitment to the defence of personal stances on IP rights resonates with the “political agnosticism” of hacker culture [38]:187–190). According to cultural anthropologist Gabriella Coleman, the typical “political denial” observed in hacker culture actually functions as a bulwark against political “conflict”: pragmatic, hackers focus their energies on the common project that is of primary importance to them. Typically, this is the development of high-quality open software (2013:185–200). Something similar appears to be at play in the North American biohacking world, where the equation, for one of the co-founders of DIYbio, is rather simple: “The more actors you have, the more innovation can occur” (Mac Cowell quoted in [36]:25). Said otherwise, a relativistic moral-philosophy conjures the promised-land of DIYbio where biotechnologies become new “personal technologies” (section 1). In a thought experiment of sorts, techie Humbert depicts how such innovation-driven pragmatism, if pushed to its limits, may turn the normative issues involved in IP over bio-entities into a bookkeeper-expertise issue: “The only real excuse and justification for patents is if they promote innovation. That is the only reason for monopoly [of products like pharmaceuticals]. And so then, that becomes a practical question [about patents], of ‘do they or don’t they [promote innovation]?‘, or rather, to ‘what extent do they increase it, and to what extent do they slow innovation down?’” Such a radical commitment to bio-innovation may be a biohackers' strength or Achilles heel, depending on the point of view. One way or another, somewhat paradoxically (considering that the program of “distributed biotech” is conditioned by the public release of biotechnological resources and the exchange and transparency of materials and data), DIYbio is unlikely to epitomize a resurrection of an “anti-patent campaigns” movement as witnessed in the past.33 It is believed that open-source biotech can lead to the disruption or circumventing of IP monopolies [7]:167; [25]:117–133; [77], and theoretically, we may observe a logical and “[…] a strong tension between the open nature of biohacking and the closed nature of the formal IP system” [57]:32); however, this study suggests that at play is not so much a tension as a critical adherence. The “current balance of power” in industrial and academic institutions [13] is at issue for them. For many biohackers’, the contention over IP regime involves the fact that this ownership right is monopolized by a few players, rather than its fundamentals. Their battle horse is to spread the access to IP rights and their realm. 3.3. Making is owning: expanding ownership modalities The use that open-source licenses make of property rights definitely breaks with the classic representation of a private property reserved for the exclusive use of the property rights holder (section 1). Because they demonstrate that a private intellectual good can be made freely available to others to be reproduced, modified, reinvented and shared, the notion of property may appear to lose its meaning somewhat. Yet, as counter-intuitive as it may seem, this study indicates that the open-source approach inspires, on the contrary, a pronounced feeling of possession. For this to happen, innovators must be granted unrestricted freedom to act, so as to mold the (bio)technology to their normative designs. This circles us back to open-source property regime as the ultimate enabler for distributed innovation. This section expands on the latter by delving into another token of biohackers’ overwhelming commitment to innovation. While above we explored why participants often nurture ties to IP system principles, here we peruse why RIPR also imply a certain restraint on IP rights. This is so, especially, when core resources for bio-innovation are at stake. Techies Tomas' and academic Colbert's cases are telling in this regard. On the one hand, both defend a better “balance” between possessive and open-source IP rights (section 3). On the other hand, their allegiance to open-source becomes full-throated when the cornering of enabling bio-resources through patent rights is at stake. Tomas says: “[Despite my hesitancy regarding open source, given insufficient creators' rewarding,] I’d like to see a lot more open source in biology, that’s for sure. And it’s very dangerous the way that it’s going right now. There are some very basic things being patented and policed. To the point where, basically, from what I can tell, [it would now be virtually] impossible to do anything without breaking some kind of law, nominally, and that is bad news. So I think that’s disgusting, and I think it has no place there, and it should be as open as possible.” While Colbert declares: “I think basic libraries, so meaning, basic genetic parts [and genetic sequences] should be available for everybody […]. I would be very strong on that. And then, I think, also, all the components of the genomes, like, specific genes and specific regulatory elements, I'm also very convinced that these should be open access 100%.” This unequivocal support of open-source regime as a way to ensure the free circulation of foundational resources can be understood in light of the uncommon relationship that hackers nourish towards the idea of technological control and appropriation [37, 75]. Tomas addresses this topic explicitly at different times during the interview. Below, he defines the term hacking. He explains that within this culture, true ownership consists of an emergent feature arising through the practices of subverting, repurposing and designing a technical object: “[Hacking] is about taking things out of the shrink wrap, subverting the purpose and controlling them in a way that […] makes you truly own them […].34 Real ownership. It’s not something that’s being given to you on its own terms, [a tool that you bought which you must accept as is]. It becomes something that is a tool to do what you would like it to do […].” Employing different words to formulate this idea, techie Humbert arrives at a similar conclusion: hacking allows to “make something yours.” “[…] the whole GPL thing [the free-software licensing] [was about pushing] back against patenting, against softwares, and service models, and all of these things [that companies use to lock data down, to prevent people from being able to control the devices that they own]. To prevent you from being able to see what is happening in your software and hack it, and change it, and make it yours.” The valuing of technology-personalisation practices is at the core of hacker and maker/DIY cultures' axiology. Within movements promoting autonomous/distributed manufacturing, a paramount requisite is the individual capacity to exercise full power over the technology in order to best meet one's needs and creative urges [78]. Either acting as prosumer, innovator or entrepreneur [79]:19), creativeness and expressiveness remain prominent values. In The Maker Movement Manifesto, one reads that self-made artifacts amount to self-materialization: “There is something unique about making physical things. These things are like little pieces of us and seem to embody portions of our souls” [80]:11). In computer hacking, more particularly, the stake may be less substantial, but no less engaging subjectively. Hackers entangle their normative ideal of self-determination to the creative practices of software improvement and repurposing [39]:116; see also [75], which are framed as a subjective and expressive work (a feature spanning hacker studies since the seminal work by Steven Levy). In addition, as “amateur legal thinkers and tinkerers,” paraphrasing Gabriella Coleman, they have put together a “corpus of legal theory” where they assert the expressive value of their practices and ascribe to source code writing the legal and philosophical stature of a free speech right (2013:159–202). Under the aegis of free speech doctrine, the practices of software coding/improving/subversion are reframed as speech. The claimed software-speech-freedom bond (which thrives not without epistemological, political, and ethical pitfalls) entails that the freedom to share/circulate/modify source codes must prevail over any constraining law, such as restrictive IP rights [38]. Returning to bio-hacking, IP interference in the free circulation of enabling biotechnological resources also appears to engage more than “the normative ideal of the freedom to create” [21]:199, also [18]:47). Self-determination and self-fashioning may be at stake. In Tomas’ eyes, the peculiar hacker relationship to property, where the subversion and repurposing of a technical object enacts a “real ownership,” also applies to bio-objects. His view rests on the premise of the lack of differentiation between living and non-living matter that grounds both the patent law since the Diamond v. Chakrabarty case and the techno-epistemic project of synthetic biology [42]:88). For him, biological artifacts also call for being modified, re-appropriated and, above all, “truly possessed” like any other technology: “I don’t see the difference between a cell phone and a tree in terms of whether it’s legitimate technology or not. I think that everything which we modify to try to produce an effect becomes technology […]. And so, [I] understand biology as something that has come out of this magical, almost religious realm of things that just are, and [now is] into this realm of things which can be manipulated, and built, and improved upon, and truly owned by societies and people. And ownership is a strange term there. But ownership to me is very similar to Richard Stallman’s idea of free software […]. It’s the idea that if you have something, you should understand how it works and be able to modify it yourself. And biology is particularly promising there.” Ultimately Tomas unveils what seems to be a rather overlooked dimension of hacking practice. If personalizing a technology generates a sense of possession over it, to the extent that hacking consists of a hands-on exploration of the plasticity of technical objects in order to forge them after one's own needs, tastes and desires, hacking itself can be defined as a practice of manufacturing subjective property. Indeed, the hacker premise of the virtually bottomless perfectibility of technical systems calls for a virtually endless circle of autonomous individual (re)appropriation and recreation of technical objects in accordance with one's desires and needs [37,75,81]. For hackers, Gabriella Coleman clarifies, “freedom is understood foremost to be about personal control and autonomous production” (2013:164). A quest of self-determination in technological innovation, hacking may be said to exist to the extent that a person is free to make a technical object conform to their idiosyncratic velleities, needs, norms, and interests; through this appropriation process emerges a sense of symbolic, qualitative possession over the given object. The open-source framework paves the way to this identity relationship to property. It grants access to the range of resources that creators/contributors/innovators require to unleash their freedom in the (re)shaping of (bio)technologies. Scholarship on synthetic biology inventories the plethora of techno-epistemic avatars that swarm from the verb making: “knowing through making” [82]:54), “making is knowing, and knowing is making” [83]:292), “making to know, knowing to make” [84]:637), “knowing as making, making as knowing” [85]. In light of this study, I suggest that in the “age of making” [78], manufacturing is not just an epistemic vehicle, but also a proprietary vehicle: making is owning, and owning is making. The only echo of this issue in studies on DIYbio and the maker/DIY movement, to my knowledge, presents bio-hacking activities on personal bio-manufacturing as an emancipatory approach for the appropriation of biology: “[Biology hacking, that is, transforming it into a low-cost and creative technical practice] is done by producing a way of relating to biology and technology that is not delegated but ‘owned’ (not necessarily in a proprietary sense, but in the sense of ‘appropriated’). As Hackteria35 [says], ‘If you can’t build your Lab you don’t own the Lab’” [86]:7). To dismiss swiftly any question involving the notion of ownership and property in such “appropriation” as a vector for empowerment appears to me as to miss substantial features of the DIYbio phenomenon and its kindred movements. With respect to hacking, Gabriella Coleman suggests that by hitching their creations to the speech freedom doctrine, hackers also distance themselves from notions of property (2013:10). Yet, etymologically at least, the practices of individual appropriation and shaping of technologies to the image of a person's wills manifest the primary meaning of the noun property: a borrowing from the French propriété, whose radical, propre, from the Latin proprius, counts among its meanings “what belongs in its own.” In light of its root, “property” refers in the first instance to what is “proper” and “exclusive” to oneself and “to her/him alone,” as in “a proper identity” (“ownership” inheriting the meaning of proper from the Germanic eigen).36 The legal aspect of ownership as “right of possession” then becomes a derivative. What does that tell us? Unlike the sheer enforceable legal right to exclusivity in the use of a given property, the open-source approach embraces and facilitates the attainment of a symbolic and qualitative dimension to ownership. Thanks to open-source, one may aspire to mold a technical object to embed one's norms/needs/desires, lending it “distinctive attributes” that make it a novel artifact “belonging in its own” to a person. Such symbolic relationship to property, as the fruit and reflection of one's idiosyncratic norms, is irreducible to any legal right. Only an ownership paradigm rooted in the promotion of freedom and autonomy in self-manufacturing/-innovation, as is open-source, makes possible, as Tomas puts it, to “truly own” a (bio)technology. 4. Conclusion: towards a dual-use system In his study of the Biobricks regime, Stephen Hilgartner identifies the typical features of an IP-minimalist strategy for boosting innovation (i.e. “fewer and weaker rights”); a “relatively conservative approach” (2012:203–205) to open-biotech after all, he concludes. Contrastingly, Hilgartner shifts expectation to new open-source “collective subjects for shaping the direction of innovation […] in ways that distribute configuration power in new and more inclusive ways” [21]:205; see also [57]. While fitting the description of such collective, the portrait of DIYbio emerging from my fieldwork also appears as more conservative than it may be expected. Whether through technological pragmatism, ideological sympathy, or socio-political fatalism—biohackers’ skein of values is definitely far from monolithic—this study indicates that a relationship of complicity exists between the IP regime and the DIYbio community. Even among the minority of the interviewees positioning themselves ethically and ideologically opposed to the principle of IP on biological entities, some come to manifest moderation with regard to practices at odds with their values. The purpose of the concept of RIPR is intended to grasp the underlying axiological, ideological, and technical complexity of DIYbio critical adherence to the IP regime. RIPR draws our attention to a combination of receptiveness to the enforcement of IP rights either when desired (individual choices) or needed (as techno-legal devices necessary to enforce market protection against competition, in particular, vis-à-vis the major players), with the objection to the enforcement of IP rights when these imperil access to core biotechnological resources. Clearly, substantial questions remain. Not least, the challenging distinction between parts and products. The concept of RIPR (and hence, this paper) therefore does not pretend to exhaust the issue; quite the contrary, it is a call for further inquiry into open-source biotech practitioners’ representations, valences and ideas of the IP system at large. Bitter critics of the traditional IP system, participants speak against the degradation in the use of IP rights as an engine of innovation. By almost unanimously arguing that the problems involving IP are in fact a matter of degrees and of “context” of its misuses, interviewees’ discourses, and the deriving RIPR concept, presuppose that IP rights on life are neutral, or dual-use. I refer here analogically to the notion of technological duality, where technological outcomes are framed as emanations from the (phenomenological) intentionality driving their uses [87]; consequently, it is up to societies to implement sound policies to manage potential misuses while leveraging the “good uses” [88]. Similarly, RIPR is built on an idealization of a “good use” of the IP system: one which commits to the protection of both the innovation process and the public hands-on participation in it. The instillation of duality into IP regime raises significant issues. Two main points are worth mentioning. The first is that in doing so, biohackers contribute to the naturalization of the socio-cultural cornerstones of the current patent system (such as its extension to life forms), and of the ideology to which it serves as a political tool (such as the legal right to monopoly as an instrument of power gain in the market (see [89]. The second is related to RIPR′ responsiveness to the open-source innovation regime. The interviews brought to the fore a sui generis paradox in the open-source approach to innovation. On the one hand, its distributed innovation paradigm represents for most an “ideal” IP regime: deemed ethical and socially desirable because it ensures transparency and the sharing of data involving the development of a (bio)technological good, the free individual disposition, and the non-obstruction of the innovation process. On the other hand, by intertwining personal autonomy, creative freedom and (bio)technological appropriation/innovation, the same approach tends to act as a driver for the sense of property over living things. Tailored to innovator's idiosyncrasies, life forms can finally belong to someone “properly” in open-source biology. The ultimate expression of ownership feeling—possession—over a (bio-)artifact encompasses a type of ownership that is disproportionate to any legal right to property. This identification-based ownership appears to be overlooked in studies on DIYbio (and hacker culture), and should be explored in its socio-cultural and epistemological roots, and symbolic and ethical implications. That being said, it might be that DIYbio's impact turns out to be foremost cultural—alike to its alter-ego, synthetic biology, whose effects may lie more in the construction of a new ethos of the researcher [90]:47 [91]:36), than in the manufacture and commercialisation of bio-artifacts. Should DIYbio remain confined to some ad infinitum variations of basic biotechnological techniques re-appropriated in loop for recreational purposes—such as the conversion of microbes into pictorial tools—, biohackers might still be well on the verge of dismantling one of the most biting criticisms of genetic engineering, given its socio-political relevance: the granting of IP rights over life forms [92,93,94]. The well-known Irish biohacker, Cathal Garvey, claims it explicitly with some words now familiar to us: “In my experience, hatred of GMO crops more often than not begins to crumble when the possibility of true ownership emerges” (quoted in [91]:35). Regardless of the legal and techno-practical uncertainties surrounding DIYbio future and projects, in the light of the interviews, one can expect our biological horizon to mirror our present, increasingly moving away from Linnaean nomenclature and closer to IP logos [95]:161–162), be they industrial or individual. If the stoic reductionism of molecular biology and its biotechnological offspring would doom technical-life-forms to commodification and appropriation ([19]; see also [72]:224), should societies content themselves to “[free] biology from possessive ownership”? [42]:96) To the extent that DIYbio is rooted in a bio-making regime in tune with synthetic biology's bioeconomic project of transforming “useless materials in very added-valued materials” (to use the words of one of the interviewees), these IP issues remain most pressing. Being responsive to them requires us to turn our eyes and bend our ears to subjectivities and societies from elsewhere, unlike the essentially Canadian corpus of this study. Societies where relations woven with life and property can afford, maybe, other biotechnological futures. Yet, as non-Western countries may unveil a less shining face of the emancipatory and progressive values attached in the West to notions of open access and public domain ([96]:4–5, 20–21), the IP maze is likely to gain even more subtleties. Ethics approval The project was approved by the ethics review board of the University of Montreal. Declaration of competing interest None.

In one of the earliest uses of the portmanteau biocapital, Sarah Franklin (2003) described the emergence of “ethical biocapital.” Thinking in the context of reproductive technologies and the fraught terrain of stem cell research, Franklin described ethical biocapital as a commodity form, a type of innovation, and a market strategy in which “concerns about public opinion are literally being built into biological life forms” (2003:98). Since Franklin’s writing, theorizations of biocapital—succinctly defined as the shift toward the commodification and marketization of the life sciences since about 1980 (see Sunder Rajan 2006)—have proliferated in the social sciences (see Helmreich 2008). Theorists of biocapital call attention to the ways in which life itself is increasingly subject to the demands of profit-seeking enterprise. Franklin’s early contribution was to identify how the complex ethics and values surrounding the stuff of life are also subject to commodification. Widespread objections to certain ways of handling biological materials—for example, human embryos or seed crops (see Schurman and Kelso 2003)—had constituted cultural obstacles to biological commodification. The response, Franklin suggested, was to anticipate and incorporate ethics into the biotechnological materials themselves, such as by engineering ways around the use of embryonic stem cells. In this and other theorizations, the transition to biocapital appears as progressive, inevitable, and overdetermined (Sunder 31 Rajan 2006), capable of leveraging increasingly sophisticated biological control to transform would-be obstacles into new opportunities for accumulation. These obstacles could be ethical or cultural, as in Franklin’s example, or they could arise from the nature of biomaterials themselves (see Boyd, Prudham, and Schurman 2001). While biology was not inherently suited to commodification, an increasingly sophisticated array of engineering techniques capitalized on biology by reshaping biomatter itself. In one sense, Open Insulin fell in line with Franklin’s characterization of ethical biocapital: the Project’s members built ethics into bioengineering. In another important sense, however, Open Insulin was different. Rather than ethical concerns about playing god, Open Insulin members objected to capitalism itself, and especially to biocapitalism,8 positioning themselves as a movement of resistance to the commodification of a life-saving medication. They objected to what they described as an “oligopoly,” a “cartel,” or simply, “Big Pharma.” Their approach was not to anticipate and insulate themselves against consumer backlash. Rather, their bioengineering efforts were backlash made manifest as the materialized objections of an empowered biotechnological citizenry. Open Insulin was less “ethical biocapital” than 8 This is my reading of Open Insulin Project members’ politics, as they did not engage the social science literature on biocapital themselves. Most members of Open Insulin did, however, identify the Project as more broadly anticapitalist. This chapter tells the story, from the vantage of a participant-observer, of the conditions and possibility for the emergence of such a project. This account tends toward the hope and optimism that Open Insulin members, associates, and supporters held for their project and for the future of biotechnology and medicine. It does so in the service of understanding what a project like Open Insulin represents, why it emerged when and where it did, and whether the stage might be set for the emergence of similar efforts. The next few chapters will put this optimism to the test and examine what happened when the Open Insulin Project moved from concept to concrete practice. This trajectory roughly mirrors both the history of Open Insulin as it grew and developed and the course of a new member’s induction into the Project, like the one I went through as I first learned about the Open Insulin Project and began to regularly attend and participate in its meetings. Crucially, biocapitalism itself created the conditions of possibility for Open Insulin. These conditions were characterized by several different developments at the intersections of biology and capital, especially as they converged in areas of biotechnological concentration like the San Francisco Bay Area. These convergent developments included: the development of a biotechnological industry characterized by hope and promise, speculative investment, volatility, and a focus on intellectual property (Thompson 2005; 33 Sunder Rajan 2006; Fortun 2008; Birch 2017); the emergence of synthetic biology at the nexus of biology, engineering, and informatics (Roosth 2017); and the selective empowerment of patient-consumers within the stratified patchwork systems of 21st-century biomedicine (Clarke et al. 2010; Rose 2007). These developments interacted with one another, and they were evident in the story of the Project as well as in the stories of the individual volunteers that it comprised. Because Open Insulin was the product of the same conditions that produced the very expensive and inaccessible medicines it opposed, I characterize the Project as the product of an internal contradiction of biocapitalism. Marx identified the most fundamental contradiction of capitalism as its tendency to generate crises of overproduction: periods in which depressed wages and increased production capacities become incompatible, failing to generate a consumer base capable of sustaining profitability (1990 [1894]; Marx and Engels 2002 [1848]). In short, capitalism renders labor ever more productive while simultaneously deepening the exploitation of those who perform it. According to Marx, the effects of crises of overproduction, though usually managed by expansion in search of new markets, eventually threaten capitalism itself as they grow in severity and expose the contradiction at the heart of capital accumulation. Scholars working in the Marxian tradition have identified many more contradictions of capital, including the cultural (Bell 1972), the ecological (O’Connor 1988; 34 Foster 2000), the financial, and the geographical (Harvey 1982), complicating the relationship between capitalism’s forces, relations, and conditions of production. Notably, David Harvey (2014) argues not only that capital is rife with contradictions, but that these contradictions are central to the reproduction of capital. These contradictions rarely resolve but are instead reconfigured and moved around as capital reinvents itself. The state of affairs that produced the Open Insulin Project revealed a contradiction in biocapital: insulin was produced in new, more user-friendly, and more profitable forms, while at the same time, the cost to patients continued to increase steadily, resulting in approximately half of those who needed insulin lacking reliable access (Gotham, Barber, and Hill 2018; Biniek and Johnson 2019). Amid growing upset about the unaffordability of healthcare, insulin, a nearly hundred-year-old essential medicine, served as a powerful synecdoche. In the United States, this upset drove support for socialized medicine, calls for accountability from public representatives, and demonstrations against the pharmaceutical companies that many members of the concerned public—as well as members of Open Insulin—held accountable (Sable-Smith 2018; WBUR 2019; Caffrey 2019; Rowland 2019). Among some biotechnologically inclined residents of the Bay Area with access to the region’s excess biotechnological resources, it drove efforts to put these means of production to work and actually make medicine. These efforts addressed 35 the insulin affordability crisis by challenging the entanglement of biology and capital. Biology, Capital, Medicine As a self-identified radical, anticapitalist project, Open Insulin serves as a counterexample to the ways in which biology is increasingly “enterprisedup” (Strathern 1992) and converted into forms of capital. As an empirical case, it helps demonstrate that biology and its values are neither fully subsumed by capital, nor are developments in the biosciences readily explained by economic developments independent of the biosciences. Rather, Open Insulin both emerges as a response to the entanglement of the biological, the medical, and the commercial and is uniquely empowered by the features of this entanglement. Scholars of science and technology studies studying diverse areas of biology—including molecular biology and genomics, plant and animal breeding, assisted reproduction technologies, tissue engineering, regenerative medicine, and pharmaceuticals—have identified a shift since roughly 1980 toward the mutual entanglement of biology and capital. Sunder Rajan (2006) explains this transition as the dawn of the biocapital era. For Sunder Rajan the transition is neither total nor complete, but rather piecemeal and tendential: “the relationship between ‘capitalism’ (itself not a unitary category) and… biocapital is one where the latter is, simultaneously, a 36 continuation of, an evolution of, a subset of, and form distinct from, the former. Further, biocapital itself takes shape in incongruent fashion across the multiple sites of its global emergence” (2006:10). Sunder Rajan (2006) ethnographically explores this emergence in the contexts of American and Indian pharmaceutical development. He leaves us with the sense that biotechnology does indeed represent a new phase of capitalism. This phase varies across contexts, including the contexts Sunder Rajan explicates, but he nonetheless identifies trends. Many of these trends stem from changes in the American life sciences that have subsequently become models for emerging life sciences industries like India’s. In the American context, policy changes at the dawn of the 1980s—most notably, the Supreme Court Case Diamond v. Chakrabarty and the Bayh-Dole Act— subjected biological life and matter to intellectual property protections and rendered the boundary between academic and industrial life sciences progressively porous. As a result, the life sciences have increasingly adopted a speculative, future-oriented grammar, focused on hope, hype, and salvation. Biocapital does not merely describe the influence of capital on the biosciences and biotechnology; it also describes the ways in which contemporary capital is increasingly biological and biopolitical (Sunder Rajan 2006). In other words, our ways of thinking about value are also increasingly informed by our ways of thinking about life. While in some ways Sunder Rajan takes pains to illustrate the symmetry of this mutual transformation of 37 biology and capital, he does argue that “the life sciences are overdetermined by the capitalist political economic structures in which they emerge” (2006:6). He makes the case that political-economic formations, while they may not determine the course of the life sciences in any straightforward sense, nonetheless “disproportionately set the stage” (2006:6) for their developments. Other scholars who have explored dimensions of the phenomenon that Sunder Rajan calls biocapital have identified similar features. Stefan Helmreich (2008) taxonomized the work in this area when he catalogued the “species of biocapital.” The theories in this vein call attention to how biology, biotechnology, and biomedicine increasingly subject life itself at the molecular level to the speculation and financialization; collectivized risk and individualized risk management; flexibility and de-standardization; and commercialization in pursuit of added surplus value. Melinda Cooper argues that these processes have brought biology, and specifically biotechnology, into line with the advance of neoliberal capitalism: “the biotech revolution… is the result of a whole series of legislative and regulatory measures designed to relocate economic production at the genetic, microbial, and cellular level, so that life becomes, literally, annexed within capitalist processes of accumulation” (2011:19). 38 By arguing both that biology has been capitalized and that capital has been biologized—even if, as Sunder Rajan (2006) argues, the former overdetermines the latter in the last instance—theorists of biocapital emphasize biology’s unique features. Those who apply a “Marxist-feminist” lens (Helmreich 2008), place special emphasis on biological materiality, specifically biomatter’s generative and reproductive capacities. Reproduction—as opposed to production—has historically been taken for granted within capitalist economies, but the development of new forms of control over these capacities (see Franklin 2007; Landecker 2007) has helped to generate surplus value from them. The separation between production and reproduction breaks down under biocapitalism, and “life itself” becomes the objective (Rose 2007; Cooper and Waldby 2014). And a powerful objective it is; in medicine, a focus on the pursuit and optimization of health has enabled the growth of massive technoscientific industries of surveillance and intervention (Clarke et al. 2010). In these industries, patients become active consumers of technoscientific information and products, empowered agents in their ongoing pursuits of the horizon of healthfulness. The power of “life itself” and the economies of hope that they inspire further speak to the unique cultural power of the biosciences, which profoundly shape what it means to live and die in the 21st century. In contrast to these suggestions of biology’s distinctiveness, Kean Birch (Birch and Tyfield 2013; Birch 2017a, 2017b) notably criticizes the concept of 39 biocapital and, even more widely, the tendency in science and technology studies to append “bio-” onto existing theoretical concepts. Birch and Tyfield characterize this tendency as a “fetishization of everything ‘bio’” (2013:299). Birch’s most significant concerns with the proliferation of bio-concepts stem from the biological overshadowing and overwhelming the concepts to which it becomes attached (2017b). Birch and Tyfield fear that in the process, a tendency to attribute too much power to biological matter and technoscience displaces sophisticated analytical work, sacrificing attention to how economic and financial processes of modern capitalism are changing independently (2013). A key example of the latter is the shift Birch observes toward assetization and rent-seeking in the life sciences, as opposed to the Marx-influenced analyses of the commodity form that tend to dominate the STS biocapital literature. For Birch, the end result is analyses that are unable to grasp the complex, evolving relationships between biology, economies, knowledges, and societies (2017b). Against these tendencies, Birch argues for the need to examine the practices, political-economic actors, and knowledges involved in the creation and management of value in bio-economies.10 The Open Insulin Project could not exist if not for the developments characterized in the biocapital literature, developments it relies on for knowledge, resources, and intelligibility. While my analysis of the Open Insulin Project draws heavily on the existing biocapital literature, I aim to 10 Birch and Tyfield (2013) do refer to the bioeconomy, acknowledging that in so doing, they fall into the same “bio-everything” trap. 40 avoid Sunder Rajan’s, Cooper’s, and Marx’s (over)deterministic interpretations and to find, through the example of Open Insulin, more room for alternative formations. Employing ethnography and empiricism as advocated by both Sunder Rajan and Birch, I strive to stay grounded among the actors and practices that produce the value of the Open Insulin Project, looking at how they craft and characterize their approach. This approach emerges specifically from the bioengineering and biomedical landscapes of the Bay Area, enabled by a persistent desire for increasing control over biomatter and from strong ethical objections to the capitalization of health and medicine in particular. My study of Open Insulin suggests that if the entanglement of biology, biotechnology, and capital is indeed an overdetermination of the life sciences by capitalist political economy (Sunder Rajan 2006) or their annexation within capitalist forms of accumulation (Cooper 2011), it is incomplete, contestable, and perhaps, extricable. Making Open Insulin The Open Insulin Project is a volunteer team comprising—among others—self-proclaimed “biohackers” and “mad scientists”; community activists; computer hardware and software engineers; students, retirees, PhDs, and professionals; and the gainfully, self-, un-, and under-employed. These folks took different paths to get involved with the project, but there are some clear running themes among its founders and most consistent members. These themes reflect the conditions that make the Project possible, providing the materials, the labor, and the will that Open Insulin needs to operate; they also carry within them some of the tensions that made Open Insulin challenging. Members were generally well educated, often in computer and information sciences, indicative of the way biology is increasingly tied not only to engineering, but to computer engineering specifically. This has allowed open-source and hacker activists to identify biotechnological interventions. Several of the Project’s volunteer members were between jobs or splitting their time between Open Insulin and other commitments in the Bay Area’s tech-oriented economy. These members felt qualified and compelled to intervene in healthcare economies by becoming producers of biomedicine, and they did so as a vehicle for their moral objections to the capitalization of healthcare. These individual stories of involvement—“community bios”—are woven into the history of the Project itself, from its foundation to approximately four years into its existence. This “community bio” illustrates how Open Insulin was conceived, how its home, Counter Culture Labs, was built in the shadow of Bay Area’s biotech industry. It also illustrates how the Project drew on synthetic biology and its particular fusion of biology and engineering. Finally, it demonstrates how Open Insulin engaged the existing biomedical system using a calculated strategy of circumvention based largely on precedents in software. While this strategy provided an empowering sort of roadmap for the 42 Project, it also implicitly accepted many of the features of biocapitalist order (see Chapter 2). Overall, the collective story of the Project further demonstrates how biocapital underwrote Open Insulin’s antibiocapitalism. This “community bio” shows how Open Insulin developed from its inception and the factors that enabled its progress while also gesturing toward some of the difficulties and hurdles it encountered along the way.

The attitudes and behaviors exhibited by our Anglo-Saxon ancestors that resulted in the cruel dispossession of the natives who already inhabited the land, formed the defining experience of the "American" Republic. Our cultural character has enabled a pattern of conduct rooted in deep-seated racism (unresolved fear manifesting in hatred) and arrogant ethnocentrism ("Manifest Destiny") that has never been adequately checked or corrected. How else can one explain our long record of rationalized interventions brutally crushing other people's quests for freedom and independence? Our civilization's ethos has been rooted in a delusional sense of moral superiority enabling a persistent pursuit of selfish interests. We have been so drunk with greed and power that we are unable to see straight! My personal experiences as a military veteran, including "service" in Vietnam, and from traveling to a number of countries studying the nature of U.S. policies has left me in deep anguish, and intense rage, as I have witnessed the resulting carnage caused by those policies. Are we so insulated from our own personal feelings and those of human solidarity with others that we are numb? Is it possible that we really don't care? Is it possible that we are not astute enough to distinguish the lies of our government from the realities on the ground? Perhaps. Or perhaps there is a collective mental illness that arguably reduces our capacity to determine right from wrong. Whatever the diagnosis--whether a product of criminal intent or mental illness--our conduct as a nation poses a severely grave, violent threat to virtually all life on the planet. The world desperately needs the perpetrators of these crimes to be immediately confronted with the nature and consequences of their behavior, and then to be engaged in a profound process of healing. But who will be able to assure the confrontation and initiate the healing? The World Court? A United Nations international peace force? A new international criminal court? Obviously not. The amount of power exerted by the U.S. government and the corporations it serves is so overwhelming, protected by historically unprecedented destructive military forces, that there are no human-created institutions able to stop this international bully. It has the power to choose the continuation of policies capable of destroying massive amount of life in an instant, and if not checked it seems intent on doing so. As one examines U.S. policies from Iraq to Mexico to Colombia, from Korea, Vietnam, and Nicaragua to Cuba and Grenada, it is striking how much pain, suffering, and death these policies have caused, and continue to cause. Similarly, as one examines the history of domestic policies relating to poor Whites, "Third World" peoples, women, dissidents, and labor organizers, a tremendous amount of suffering is uncovered. How can an allegedly intelligent, caring people, simply observe this pattern of repression and cruelty, being carried out in our name, without revolting? The abhorrent atrocities that have been a trademark of U.S. policies worldwide, when seen up close, would cause a normal person to vomit. And yet we hardly blink. Make no mistake. This pattern of malignant human behavior will be stopped, whether or not we intelligently choose to make the necessary changes. Ultimately, the balancing forces of the universe, and of Gaia, will assure a continuation of the sacred, evolving cosmos that began some 15 billion years ago. The only question is whether we as a species, but 5 million years old, will continue to be part of it. Though we are an intrinsic part of that evolution, by virtue of our terribly misguided ill behavior, we may be on a short branch leading to early extinction. We may choose to continue to defer to our inflated egos, unwilling to accept humility, unwilling to recognize the wisdom of abiding by the requirements of cooperative living with the sacred interconnected web of life that is already imprinted deeply within us since creation. Or we may choose the painful but liberating path of radical healing, away from selfishness and toward wholeness, while seeking unity through diversity. Fortunately, there are a number of people and organizations, within the United States and elsewhere, who do understand this behavior as a chronic, intentional pattern, not as a series of aberrations or mistakes, that must be addressed at both structural and psychological/emotional levels. The emerging popular movement against the cruel policies of globalization is a reminder of the importance of people power. It is this dynamic force of caring people, and only this force, that has the human capacity to make the "arrests"--to stimulate a profound process of national transformation and healing that just might save humanity from the continued assaults against its own health and the health of the earth upon which it totally depends for survival.

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

Anthropological attention to the extension of IP into new jurisdictions sparked interest in legal constructions of personhood. Recognizing property and personhood to be dialectically related, anthropologists took great interest in the modes of subjectivity that IP relations to intangible cultural goods legitimated, tracing the introduction of the Western concept of individual authorship in diverse societies.5 Anthropologists considered how legal technologies fabricated the categories of persons and things that ownership serves to naturalize (Pottage 2004a). New policy emphasis upon communities and traditional goods fostered the articulation of collective identities. Ethnographic work on the extension of IP demonstrated that the global policy contexts in which IP was debated also enabled new subject positions of stewardship to be articulated (e.g., Brosius 1999). Where varieties of IP such as publicity rights allowed recognizable features of identity to be claimed as private property, anthropologists explored the social construction of celebrity and emerging public personas. Similarly, the growth and extension of branding practices to social collectives from villages to nations, militaries, and even militias opened new avenues of inquiry. Property and Personhood If the introduction of IP in new regions sparked general anthropological interest, its arrival in Melanesia prompted an especially rich body of scholarship exploring encounters between radically different and sometimes surprisingly similar understandings of personhood, ownership, and cultural circulation (Hirsch and Strathern 2004; Strathern 1999). Moving beyond early disciplinary preoccupations with individual versus communal rights, this work explored how selves were differentially “dividuated” in the region and how people, rather than things, were regarded as “owned” by virtue of their kinship relationships (Strathern 2001). When persons are partible, their relations to others become visible when they take on certain roles that are understood to be “images” both created and controlled by their clans (Strathern 2004). To fulfil kinship obligations, and in ritual practices, people in the region internalize and visualize themselves as images owned or carried by others (Harrison 1992). In Papua New Guinea, for instance, people seemed to entertain understandings consonant with IP’s protection of celebrity personas, commercial trademarks, and patented technologies in performative activities of symbolic exchange, valuation, and commemoration (Strathern 2001). Although concepts of owning humans are morally repugnant to many religious traditions, body parts and genetic materials are increasingly owned in significant ways (Strathern 1999, 2005). Human genomics raises questions: how and why are some human genetic materials considered inalienable aspects of a human universal heritage available to science, while others are personally alienated and may be economically exchanged? Legal techniques that claim merely to reflect divisions between norm and nature normatively institute the nature they claim (Pottage 2004b). Efforts to protect “our genetic patrimony” against commodification, for example, suggest that the genome is a resource existing independently of the means and activities through which it is visualized and rendered. Since IP creates relations of legitimated power by privileging particular forms of inscription, the simple denial of inscription is one of the means by which IP is resisted or refused. Anthropologists have explored the ways in which the legal recognition of some “natural” substances as authored or “cooked,” and others as discovered, or “raw” has social consequences for both persons and things (Hirsch 2010; Pottage and Mundy 2004). For example, positioning simple DNA as part of the public domain enables rather than discounts its political consequence in terms of the identities people may claim, as debates about DNA testing to confirm tribal identity suggest; conflating ancestry with racial, ethnic, or tribal kinship discounts the cultural and social means by which tribal belonging was historically rendered (Tallbear 2013). Contests over the ownership of plants reconstruct them as discoveries or inventions at different moments. The valuable properties of the South African hoodia plant, for example, could be represented as a patented molecule, a solid drug, a liquid food, or a wild or cultivated plant. While the state patent on hoodia hinged upon molecular isolation of the plant’s appetite suppression chemicals, San peoples’ claims to benefit sharing relied upon demonstrating their traditional knowledge of the whole plant’s medicinal properties (Foster 2017). Subjectification: Authors and Stewards A long tradition of critical theory showed that historical legitimations for IP imagine authorship or innovation as originary individual inscription, relying upon gendered tropes and the naturalization of paternal authority (Rose 1996, 2002; Woodmansee and Jaszi, 1994).6 Such gendered structuration is replicated in global IP discourses where creative work that is rendered natural rather than cultural, reproductive rather than productive, or social rather than individuated is relegated to an inferior status. In the sphere of digital cultural production, even “hacker culture,” which otherwise flouts IP protections, nonetheless partakes of a similar legitimating logic in which individual male activity is celebrated as transformative expressive work rather than “mere” reproductive labor (Liang 2010, 2011). This discursive logic may be traced across diverse fields of activity, stubbornly re-emerging under conditions of technological change. Practices of creolization and hybridization often identify new subject positions and express subjectivity. The global circulation of cultural goods, the ease of their reproduction in new contexts under conditions of digital communications, and the inclination to recombine them may be considered constitutive of conditions of postmodernity (Harvey 1989) as well as indicia of cosmopolitan subjectivities (Novak 2010). Where “remix culture” is naturalized as a form of global cultural identity, however, critics complain that it universalizes the conditions of subjects with particular privileges, discounting the ways that conditions of remediation may allow others to maintain the alternative value systems in which cultural goods figure (Christen 2005). IP, subjects, and moral economies tend to coevolve in complex dialogues and dialectics. A great deal of contemporary scholarship has addressed remix practices as creative acts of “piracy” that express new subject positions. For example, the literary “hack” in India rewrites classical works to engage in contemporary social and political criticism (Poduval 2014). Expressing knowledge of IP legalities and practices of illegality may be means of mimicking modes of modernity and drawing attention to global entitlements and their relationship to local social exclusions (Dawdy and Bonni 2012). If the contemporary politics of pirate practice tends to criticize global corporate hegemony, in Bolivia artists have also found new means of distribution and publicity to support local, independent, small-scale cultural producers (Stobart 2014). Creators of “peripheral” musics in Brazil, for example, not only rely upon remix practices, but work outside of dominant channels of distribution, giving away music on social media in order to build careers and reputations (e.g., Lemos 2014). Traditions of cultural expression, medicine, and artisanship require the social maintenance of a production commons that is often overlooked and may well be undermined by efforts to extend IP. People are becoming more conscious of their practices of stewardship over both natural and cultural resources. Many Indigenous communities, in particular, have adopted this subject position with respect to biodiversity congruent with international recognition of the value of their traditional environmental knowledge. They reject IP encroachments and instead emphasize their cultural histories of cultivating plant genetic resources (e.g., Coombe and Kisin 2020; Rhoades 2006; Shepherd 2010). Claims of stewardship and rights to exercise ancestral responsibilities over biocultural resources are now routinely asserted by local communities and environmental NGOs (Bavikatte 2014). Certain specialists, like shamans, have been elevated to a new social prominence in this new role, with Brazil, for example, portraying them as bulwarks against corporate biopiracy (Alberts 2015). In India, however, the state itself has usurped the position of steward over traditional medicines and therapeutic practices (Fish 2014). Pirates and Their Practices A number of ethnographic studies illustrate the various means by which IP and the policing of its violation have constituted new figurations of pirate subjects while simultaneously encouraging reflexivity among subject populations about community identity and the norms that reinforce peoples’ senses of communal belonging in these circumstances (e.g., Reinberg 2015; Thomas 2013). The figure of the pirate has re-emerged in the West as a rogue “other” properly subject to industrial demonization, surveillance, and punishment or, alternatively, celebrated as a subaltern challenge to corporate cultural industries. These moral positionings are often gendered and racialized. Acts of piracy that “merely” make copies or reproduce goods are often defamed with tropes of passive imitation and effeminacy contrasted to more muscular “transformative” acts of appropriation (Liang 2011, discussing Larry Lessig; Vats 2020). The omnipresence of informal markets, however, also reveals that different kinds of copies carry distinct values in local moral economies and that a variety of pirate subjectivities may be locally recognized (Dawdy and Bonni 2012). Antipiracy campaigns attempt to impress upon socially disadvantaged peoples a normalized, universal, and transhistorical human subject that puts targeted communities outside the pale of proper ways of life and legitimate economic activity (Thomas 2016). IP piracy is often essential to accessing cultural goods and engaging in cultural reproduction more generally in the Global South (Liang 2011). Local assessments of necessary, permissible, desirable, and blameworthy acts of IP violation tend instead to reflect a wide range of community norms. Accusations of piracy made by local artists in Mali were shown to have more to do with assertions of citizenship and perceptions of state failure than concerns about lost revenues (Skinner 2012). The pirate may also locally represent a position of protest against the disintegration of state–subject relations in polities that appear to value cultural resources over human ones (Dawdy 2011), and foreign economic interests over citizens’ social needs. Anthropologists studying the phenomena of piracy have refused to privilege the private property–public domain binary, showing how, why, and to what ends this modern conceptual division is rejected by subjects whose economic circumstances exclude them from IP’s circuits of recognition and exchange (Grassmuck 2014; Poduval 2014). For example, in urban Bamako, piracy has been both the cause of artistic precarity and the rationale for new kinds of cultural governmentality, creating a crisis in political subjectivity where musicians struggle to maintain professional livelihoods amid weak state oversight and a flourishing informal economy in copied music (Skinner 2015). Challenging the purported dangers of piracy to mainstream industries, while exploring the politicized nature of creative counterfeiting practices, anthropologists attend to the abject subjects and public anxieties generated by the policing of illegalized cultural goods (Dent 2016, 2020; Eckstein and Schwartz 2014; Thomas 2016). Assessments of piracy exceed considerations of subjectivity when they explore political economies, moral economies, and the policing of cultural circulation in the Global South. Anthropologists increasingly ask, not who is a pirate and why, but rather, what does piracy do, shifting inquiry to issues of labor, technology, monopoly, cultural consumption, and political representation. Attending to the productive dynamic between “appropriate” circulation and digital piracy in Brazil, for example, revealed how social groups enact, challenge, and, ultimately may modify IP law by exposing its contradictions and fault lines (Dent 2016). Although considered illicit by state and international powers, pirate practices in Guatemala were shown to have local legitimacy in communities that rejected police powers exercised on behalf of foreign corporate actors who are clearly unaccountable to the people so governed (Thomas 2016). Antipiracy campaigns, draconian enforcement regimes, and punitive measures amplify antagonisms between emerging classes in informational capitalism, the structuring principles of whose interrelationship are still obscure (Dawdy 2011). Personas, Brands, and Communities Legal anthropologists have long recognized that law does not merely reflect social worlds but constitutes, authorizes, and legitimates social identities and relationships (Dent 2013). To the extent that IP promotes forms of recognition, enables streams of royalties, and encourages investments, it fosters practices of individual and collective public subject formation. Cultural anthropologists have been particularly interested in public personas and the branding of collective identities (e.g., Bunten 2008; Foster 2007; Mazzarella 2003). Public personas are created through expressive investments and particular forms of circulation, both of which are shaped by IP protection of the symbolic attributes of the persona that may artificially freeze fields of connotation and stifle subaltern challenges to dominant meanings. Studies of pen names, for example, show how an authorial persona is constructed as a brand to mediate between producers and consumers in mass-market publishing in North America (Taylor 2018). The intersection of different regimes of value for restricting the circulation of iconic imagery also engenders new politics of publicity. Where the commercialization of ritually important Hindu images provoked criticism from diasporic communities, for example, these conversations spurred new aesthetic practices in expressions of shared identity (Ramachandran 2014). The relationships between signs (e.g., trademarks), the virtual commonalities their circulation enables (and their owners capitalize upon), and the social imaginaries they actualize is a rich area of ethnographic inquiry, particularly in post-socialist contexts (e.g., Vann 2006). Anthropological approaches to trademark and branding involve semiotic explorations of their fields of meaning as well as explications of the material infrastructures of their production and consumption. Ethnographers explore the folk ontologies and ideologies that are latent in the legal and economic discourses that legitimate brands and their circulation (Manning 2010). Subaltern groups in India, for example, were shown to use the repertoire of cultural forms provided by trademarks to express their understanding of and protests against corporate powers, while creating new forms of surplus affective value (e.g., Nakassis 2012, 2013). Anthropologists have been interested in brand behavior—the creative social engagements that trouble a singular social intelligibility for the IP-protected commodity. Branding takes place on multiple scales and embraces a range of actors beyond corporate producers and individual consumers, and now encompasses issues of statecraft (e.g., Thomas 2013). The phenomenon of nation-branding, for example, is a new means of communicating national identities and interests that engages corporate publicists and constitutes the state as an entrepreneurial subject (Aroncyzk 2013; Cao et al. 2019). Advertising and marketing professionals emphasize the need to maintain the singularity (and restrict the diversity) of national collective connotation, which may limit public discourse, channel political conversation, and become a means to discipline everyday social conduct (e.g., Scher 2014). Anthropologists have explored the further extension of branding to European cities (e.g., Graan 2013) and the convergence of marketing and militarism in Colombian peace-building strategies (e.g., Fattal 2018).

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 113-115. LJS

Advances in the information sciences44 were central to the development of the informational-genetic conception of life (and the ‘genetic dispositif’). The abstract, “disembodied” conception of information made the definition of the qualitative content of life effectively lose its connection to the physical world and became “one of the major assumptions behind the gradual “encoding” of genetics during the same period” (Thacker 2005a, 98). Kay highlights the scriptural element of this code (reminiscent of the apparatus of writing establishing the corpus of statistical knowledge of populations of the 19th century) and states “this view of the genome as information system, a linguistic text written in DNA code, has been guiding theories and practices of molecular biologists since the 1950s” (Kay 2000, xv; also Nelkin and Lindee 1995). In this “[genetic] reductionist framework what is of greatest value is the code”, Thacker argues, and “this relationship between DNA, database, and value is made more concrete in commercial genome databases […] as well as in the U.S. PTO database categories containing patents on genes and gene-related compounds” (Thacker 2005a, 101 f.). IP law thus concretises the informational content of life, and acts as a depository of the disembodied genetic code. This ‘informationalised’ abstract scriptural notion of life traversed the boundaries of biology and economy, giving rise to ‘value’ that can be circulated in the bioeconomy. IPRs are crucial for both defining the monopolistic knowledge-object that can be circulated, and also for the accruement of value on the basis of licensing fees and monopolies in the market. But IP law also became immersed in a wider political project outside of science and the economy. The “Science of Man” vision of life became a very successful determining force in identity formation, a formidable point of reference for definition of a new somatic ethics (N. Rose 2008a) 45 determining the parameters of ‘responsible’ healthy living of individuals and populations, and the gene became a “cultural icon” (Nelkin and Lindee 1995) in its own right. A genetic dispositif emerged that contained an all-encompassing genetic reductionist account of the essence of life in the scientific sector and in the cultural realm, promoted by its abstract informational promiscuity. Cooper argues that the connection between the emergence of the informationalised life science sector and neoliberal economy was especially productive, leading to a huge influx of venture capital (Cooper 2008) and increasing the dominance of the genetic-molecular vision of life. This connection has also been noted by other scholars (for example N. Rose 2007b; Dillon and Lobo-Guerrero 2008; 2009). The connection between informational-genetic accounts of life and the circulation of this information in the economy has been one of the distinguishing features in the “neoliberal revolution” as Cooper points out (Cooper 2008, 3). She understands neoliberalism as a qualitatively different stage of governmental and economic development to that of liberalism, in which an intensified emphasis on financialisation and an enhancement of societal differences are the result of the limitation of the state’s role to the construction and maintenance of the financial markets and the conditions for trade within it. She describes this process as an “ever-tighter alliance between state-funded research, the market in new technologies, and financial capital” (Ibid.), and argues “the very value of knowledge […] is the result of a quite deliberate self-transformation of the U.S. economy and that of its allies, one that was pursued through the international organizations created in the post-World War II era, but with the ultimate effect of entirely redefining the landscape of world trade and imperialism.” (Ibid., 57) The effect of this strategy was very noticeable: “[i]n the United States in particular these interventions had a resounding effect on the life sciences. […] The project of U.S. neoliberalism, I argue […], is crucially concerned with the emergent possibilities of the life sciences and related disciplines” (Ibid., 3). IP law acted as a central method for the financialisation of life’s potentiality in neoliberalism’s “ever-tighter alliance” between knowledge, the market, and capital. It thus worked for the market – but it also contributed to the structuring of the biotech sector and the promotion of certain research agendas over others. This introduced IP law to the informational-genetic conception of DNA – which resulted in the inevitable adoption of the genetic-informational conception of life in the Myriad decision, even at the expense of some categories of patentability of isolated genetic sequences. But Myriad’s uneasy compromise ensuring the continued patentability of some genetic sequences also highlights the persisting relevance of IP for the creation of ‘value’ from life in the economy. It is argued in the last section of this chapter that IP’s relationship with knowledge goes beyond this creation of value, encompassing the promotion of one form of scientific knowledge over other competing accounts of life. Rouvroy finds that “[g]enetic reductionism is encouraged by the patentability of genes and gene sequences” (Rouvroy 2008, 41). This draws attention to the way in which IPRs act as an economic device that promotes the predominance and normalisation of genetic truth discourses, encouraged by the criteria of patentability. However, it neglects to point out that this patentability relied on a chemical-molecular understanding of genetics in IP law, and that this patentability was recently limited in the Myriad decision. This not only endangered value creation but also IP’s contribution to the normalisation of an accepted canon of knowledge based on a predominant scientific paradigm. Genetic reductionism according to the “central dogma” understands the genetic code’s function as the determining force within the organism instead of allowing for more complex interactions with environmental factors. This produces relatively predictable and stable accounts of the body and illness on the basis of the genetic code. A focus on the promotion of predictable knowledge and its connection to patentability highlights another facet of the Myriad decision: it continued to maintain some form of gene patents in the face of competing, more complex accounts of life – which would pose more serious problems for patentability and for questions of governing.

A number of analyses of the biotech sector begin by pointing out that instead of an inevitable development, the historical emergence of molecular biology in the life sciences had a distinct political dimension (Yoxen 1981; Kay 1993; H. Rose and Rose 2012). Yoxen sets out “the history of molecular biology as a research programme and as a technological project – formed, organised and regulated by economic and political forces” (Yoxen 1981, 67). In his account of the formation of molecular biology as a discipline, he shows how “science managers” (Ibid., 88 ff.) selectively funded one direction of research amongst many, which studied life based on “the concepts of ‘information’ and ‘program’ […] [which] draw[s] attention to the fact that our current rules of biological thought direct us to a specific level or mode of interaction in living nature” (Ibid., 70; also Kay 1993). This direction, Yoxen argues, was “not only about new institutions, new techniques and new styles of research. It has also allowed the formation of new conceptions of life, nature and humanity, which are fundamentally important to both the pursuit of the research itself and its relation to contemporary society” (Yoxen 1981, 69). In this way, molecular conceptions of life can be understood as being productive of more than just economic value, but are “a productive force” (Ibid., 1981) of understandings of the self and of an entirely new socio-cultural frame of reference for the governing of populations and the self. Yoxen draws attention in particular to “the reductive shift to molecular processes” and the treatment of “nature as a program” in the promotion of molecular biology (Ibid., 77 and 101; see also Boyle 1996; 2008; Thacker 2004; 2005a; Nelkin and Lindee 1995; Kay 1993; 2000; see also chapter IV). The notion of the code has become central for the understanding of life at its intersection with information technology, as Thacker argues (Thacker 2005a, xx), and given rise to a range of new entities of “biomedia”, in which bioinformation is being stored and generated, for example in Biochips (used for the automation of repetitive laboratory tasks) and in BioMEMS (biomedical microelectromechanical systems, see Thacker 2004, 63 ff.). Landecker’s account of “the practice of growing living cells outside the body in a laboratory” shows how the life and the components of the human body have been transformed into entities that can be mass-produced and lead an immortal existence away from the donor, within the confines of the laboratory – thus changing “practices of plasticity and temporality of living things” (Landecker 2007, 1). The shift to the molecular level of knowledge entailed “a redefinition of life: life as meaning” (N. Rose 2007b, 44). Undoubtedly, the emergence of these technical capabilities for the long-term storage, indefinite replication, and global distribution of cell lines gave rise to a new industrial sector, in which IPRs enabled the integration of life into the economy. But the promotion of one research agenda over others also points to this vision of life’s contingency on a particular programme. This affected the conception of ‘life’ in fundamental ways, as new living entities such as immortal cellline were created in laboratories. It also affected lived experience beyond the confines of the laboratory, as the notorious case of the HeLa stem cell line shows. In 1951, particularly aggressive cancer cells were taken from Henrietta Lacks before her death without her knowledge or consent, and were developed into the highly successful immortal HeLa cell-line – and “have now been living outside her body far longer than they ever lived inside it” (Skloot 2011, 4). The development of this new living entity continues to cause controversy, and claims of Henrietta Lacks’ family for some form of limited control over the use of this very identifiable genetic material have only very recently been acknowledged in debates around the release of HeLa’s genome sequence (see Skloot 2013; Hudson and Collins 2013; Collins 2013). This cell-line was not patented, but its long-term implications for the Lacks family show how the development of these entities have effects far beyond their economic use, deeply affecting the identities of individuals and families. Rose argues that on the basis of information generated in the laboratory, “we are increasingly coming to relate to ourselves as “somatic” individuals, […] as beings whose individuality is, in part at least, grounded within our fleshly, corporeal existence, and who experience, articulate, judge, and act upon ourselves in part in the language of biomedicine” (N. Rose 2007a, 26). IP is thus becoming a contentious issue within a wider political economy of the molecular conception of life, situated at the intersection between economic circuits and knowledge that is increasingly important for the self-actualisation of “somatic” individuals. At this intersection, this thesis argues, IPRs are fulfilling more than a unidirectional function of creating commodities, and are rather involved in the governing of the “problem” in the sense of a “problematization” (Foucault 1994, 114) of life. 3.2. A “new genomic governmentality” More recently, a number of scholars noted the particular problem of governing life in its molecularised form, and increasingly turned to Foucault’s notions of biopolitics and governmentality for their work on a new “politics of life itself” (Franklin 2000; N. Rose 2007b) based on knowledge created in the laboratory. Here, Franklin argues that “[w]e are currently witnessing the emergence of a new genomic governmentality” (Franklin 2000, 188). This refers to the emergence of new form of governing based on this knowledge, derived from Foucault’s concept of a new art of governing or governmentality (Foucault 2000; see next chapter). This thesis analyses how IP’s treatment of life could be better understood with reference to this concept of governmentality, in which new priorities for governing such as life can challenge the operation of economic relations. The politics of life ‘itself’ in the life science/ biotech sector have been explored specifically (Cooper 2008; Rajan 2006; Rouvroy 2008), and in more general terms (Rabinow 1996; 1999; Rabinow and Dan-Cohen 2005; Rabinow and Rose 2006; N. Rose 2007b; Dillon and Reid 2001; 2009; Dillon and Lobo-Guerrero 2008; 2009; Elbe 2009). These and other uses of Foucault’s ideas will be discussed in the next chapter, where the parameters of this governmentality and its increasing emphasis on biopolitical strategies for the governing of life will be set out.8 The discussion here merely seeks to point to some studies and their conception of the politics of molecularised life in order to provide a contrast to the commodification critique’s perspective on IP. The issue of IP is raised consistently within these studies of molecular “life itself”, but mostly with regards to its function of creating commodities for the economy. There is to date no comprehensive study of IP’s contribution to the governing of life within the life science sector. However, Pottage’s article on “Genes, Patents and Bio-politics” explores IP’s function in stabilizing hybrid genetic concepts of life in order to establish “singular scientific ‘fact[s]’”, thus understanding patents as “vectors” (Pottage 1998, 752 and 749). But he connects this to a notion of “governing” only in so far as “[bio-political programmes] treat the distinction [between norm and nature] itself as a provisional programme which serves to govern their own operations” (Ibid., 747). Yet this statement on the intermediary position of biopolitical programmes can hint to the mode in which IPRs are understood to function as a “tactics” of government (Foucault 2000, 211) by this thesis. IP’s contribution to the management of the individual’s involvement in the bioeconomy and to the normalization of knowledge consists in the negotiation of tensions between the different priorities of life and the market in a neoliberal governmentality, thus “[engaging] responsively with exteriority” (Golder and Fitzpatrick 2009, 71, see next chapter). The engagement of other studies on the biotech sector with Foucauldian concepts can range from a mere mention of Biopolitics to a more in-depth exegesis of an emerging ‘politics of life’ and its relation to the economy. Franklin’s work introduced the notion of “life itself” and expressly drew on Foucault, but then turned towards highlighting the pervasive cultural reception of genomics rather than towards connections with the economy. Rajan’s comparative study of the life science sector in India and in the US contains a more direct engagement with the notion of biopolitics. He explicitly sets out to combine the Marxist concept of capital with the Foucauldian concept of biopolitics, arguing “that the life sciences represent a new face, and a new phase, of capitalism and, consequently, that biotechnology is a form of enterprise nextricable from contemporary capitalism” (Rajan 2006, 3). In this phase, “Biocapital”: “operates explicitly in two distinct yet simultaneous analytic frames: one the one hand, as the circuits of land, labor, and value (in a classic Marxist sense) that are inhabited by biotechnological innovation and drug development; on the other hand, as the increasingly constitutive fact of biopolitics in processes of global capitalism. In other words, on the one hand, what forms of alienation, expropriation, and divestiture are necessary for a ‘culture of biotechnology innovation’ to take root? On the other hand, how are individual and collective subjectivities and citizenships both shaped and conscripted by these technologies that concern ‘life itself’?” (Ibid., 78) Rajan’s comparative study of biotech companies in India and the US highlights the coexistence of the economy and life as priorities for governing – as also set out in the next chapter. He also points out the fundamental impact of genetic knowledge on individual and collective subjectivities. However, his discussion of IPRs focuses on the “fluid and constantly contested boundaries between what constitutes the public domain and what private property” (Ibid., 59). His understanding of IPRs in this is influenced by Coombe’s emphasis on IP “as a constitutive object in commercial and popular lifeworlds, as a source and sink of social power” (Ibid., 65; Coombe 1998) – thus in a way that goes far beyond the role of providing commodities. But he focuses on challenges emerging in the public policy sphere, as the question of IP is deemed to have been “settled” in law and thus not discussed as a part of bioethics (Rajan 2006, 64). Rajan traces the “fluidity” of IPRs in the complex positions of India and the US in the biotech sector, and shows that these countries’ presumed positions regarding IPRs are far from certain. This shows surprising fluidity in the parameters of the making and enforcement of IP as a commodity. In contrast, this thesis inspects IP’s “fluidity” in a more directly governmental context, arguing that this flexibility enables IP to negotiate tensions surrounding the relation of knowledge over life and the market. Cooper takes a different approach to the study of the biotech sector, focusing on the financialisation of life in the neoliberal economy. Here, she argues, this neoliberal system has a special foundational connection with the emergence of the life sciences sector through the use of speculative capital (Cooper 2008). This study resonates with topics from Foucault’s study of liberal and neoliberal governmentality, and she draws expressly on the Foucauldian concepts of genealogies and biopolitics, but states that she does not wish to engage in their detailed definition (Ibid., 5). Nevertheless, her emphasis on the role of IPRs as economic instruments shows how speculative neoliberal economic relations fundamentally rely on the creation of stable objects for exchange. On the basis of this, the next chapter argues that IP is becoming even more relevant as molecular knowledge’s influence spreads beyond the scientific sector. However, this increasing influence also gives rise to a more contested status of exclusive ownership over this knowledge. Rouvroy’s analysis of Human Genes and Neoliberal Governance (2008) explores the connection between genetic and economic reductionism, and what she terms the “disciplining effects” of genetic knowledge on the level of the individual. These insights tease out interesting aspects of the connection between governmentality and molecular conceptions of life, which will also be explored in the next chapter. She focuses on IP as part of the convergence between economic and genetic reductionism, and argues that patentability promotes reductionism (Ibid., 41). However, the Myriad judgement and problem of patenting “information” partially contradict this correlation. Chapter IV shows that the IP regime’s turn to an informational-genetic reductionist vision of life endangered the patentability of genetic sequences. Interestingly, the influence of the ‘disciplining’ effects of genetic knowledge on the individual can also produce increased demands for access to knowledge – and thus give rise to claims against the exclusive ownership of such knowledge. The convergence between economic and genetic reductionism thus gives rise to an intensified political dimension of molecular conceptions of life, in which IPRs play more roles than a unidirectional tool for the formation of commodities.