These biopolitical rights regimes codify the false public/private distinction, giving government the “right” to decide who lives and who dies

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 71-74. LJS

In this context, the role of IP can be re-read as contributing to the governing of life, which allows for example for a different perspective on statements made by representatives of international organisations emphasising the fundamental compatibility of health concerns and IP (see WHO, WIPO, and WTO 2013). Such statements and programmes seeking to reconcile IPRs with public health can now be understood as an accommodation or “constant adaptation of the legal order to scientific discoveries, to the progress of economic organization and technique, […] and to the requirements of contemporary consciousness” (Foucault 2008, 161). In this sense, these statements on IP can be understood as a product of tensions between the aim of fostering the life of populations and the normalisation of knowledge over life for their economic circulation. As the next chapters point out, at this intersection IP’s role goes beyond the sheer commodification of life, with IPRs exerting normalising and economic powers on the accepted scientific conception of life. This governmental accommodation of challenges in the name of life can be traced in other ways. Elbe points out that “biopower […] [was] not merely deployed downwards from the state into society, but [was] consentingly invoked by many social groups […]. The health of all, he noted, became a priority of all” (Elbe 2005, 407). As subjects were increasingly “encouraged to view […] lives and identities as a type of enterprise” (McNay 2009, 56), they began to be actively engaged in generating knowledge about their body. As a result, “active patients” (N. Rose 2007a, 11) began to demand access to genetic knowledge about their own life and health, thus challenging the exclusivity of the IP system in a bid to improve their own condition – highlighting the radical potential of biopolitical challenges. In responding to these challenges demanding participation in the bioeconomy, the IP regime comes under pressure to ‘governmentalise’, and contributes to the management of the political problem of life as a tactics of government. 1.3. The limits of productive biopolitics The notion of a productive way of governing life in a new governmentality has given rise to a variety of critical studies, which interpret Foucault’s work in different ways (see for example Esposito 2008; T. C. Campbell 2011; Clough and Willse 2011; Debrix and Barder 2012; see also overview in Lemke 2007, 9). Not all emphasise governing through the conduct of conduct and conditions of productiveness which “[seek to] increase the means of subsistence, to augment the wealth, strength and greatness of the state, to increase the happiness and prosperity of its inhabitants, and to multiply their numbers” (Dean 2010, 125). This section briefly outlines the difference between an emphasis on the production of the conditions of freedom and the study of biopower at its limits, where the distinctions between sovereign and governmental power exercises are blurred. Agamben presents a reading of biopolitics that is deeply connected to considerations of (state) sovereignty, looking at the “hidden point of intersection between the juridico-institutional and the biopolitical models of power” (Agamben 1998, 6). In contrast to Foucault’s work, in Agamben’s interpretation “the production of a biopolitical body is the original activity of sovereign power”, which places this connection between biopolitics and sovereign power at the heart of “Western politics”, in which “the inclusion of zoē in the polis (…) is, in itself, absolutely ancient” (Ibid., 6 and 9). This entails a “correction” (Ibid., 9) of Foucault’s understanding of the emergence of biopolitics as a marker for modern politics and reconceptualises biopolitics as a foundational element of state power. Agamben’s analysis focuses on the most “exemplary places of modern biopolitics: the concentration camp and the structure of the great totalitarian states of the twentieth century” (Ibid., 4). Lemke argues that as Agamben’s account fails to acknowledge “that biopolitics is, at its heart, a political economy of life, his [Agamben’s] analysis remains tied to sovereign power and blind towards all those mechanisms, which operate below or beyond the law” (Lemke 2007, 80).13 Similarly Fassin points out that Foucault was not concerned primarily with ontological questions of bios and zoē, but “rather [with] the way in which impersonal ‘living beings’ were turned into populations and individuals, how governmentality and subjectification shaped our modern vision of the world and of humanity” (Fassin 2009, 47; in a similar vein Lazzarato 2002, 101; Meloni 2010). Furthermore, in the context of his analysis of neoliberalism, Foucault cautioned against neoliberal “state phobia” and its “inflationary critical currency” which leads “an analysis of social security and the administrative apparatus […] to the analysis of concentration camps” (Foucault 2008, 187f.). A similar caution should be made against focusing critiques exclusively on the extremes of biopolitical strategies at the expense of an analysis of the productive operation of power within the neoliberal system. However, important analyses of the operation of power at the limits of biopolitics have drawn attention to the conditions of possibility on which the concept of biopolitics is founded. Selmeczi shows that the biopolitical fostering of some parts of populations always also entails an abandonment of others – which are not counted amongst the numbers making up the respective population (Selmeczi 2009). Furthermore, analyses emphasise the politics of death at the limits of biopolitics (for thanatopolitics, or the “politics of death”, see Foucault 1997, 254ff.; Clough and Willse 2011; Ailio 2013; evaluated in detail by T. C. Campbell 2011; Esposito 2008, 110ff.; T. C. Campbell and Sitze 2013) showing how the securing of the life of the population justifies death and destruction at its limits, and as part of its exercise. The promotion of life in the liberal system produces life in a way that necessarily also depends on death – as shown for example in the Obama administration’s condemnation of torture methods, which however was accompanied by a normalisation of coercive practices and increased reliance on drone strikes (see Clough and Willse 2011, 2; see also Dillon and Reid 2009). Godoy’s analysis Of Medicines and Markets suggests a particular connection between IP and biopower in its concluding remarks on “intellectual property and human rights in the free trade era”, arguing: “It is difficult to imagine a more quintessential example of biopower than intellectual property” (Godoy 2013, 141). She does not elaborate on this statement in much greater detail, except for finding in contemporary Western politics “it become[s] necessary, in the name of prosperity and progress, to sign laws condemning the poor to lack medicines”, which “is the genius of biopower; it permeates false divisions between private and public, […] determining who lives and who dies, all in the name of scientific advancement and the rule of law” (Ibid., 140). Explicitly drawing on Agamben’s reading of Foucault’s Biopower (and that of Hardt and Negri 2000), she thus equates IP’s role in determining the price of medicines with the power to decide “who lives and who dies” (Godoy 2013, 140, Footnote 10). Godoy’s brief statements thus find the globally enforced system of minimum standards of IP protection enshrined in TRIPS to be implicated in a more sovereign exercise of biopower, instrumental in drawing the dividing line between those that “count” and those that are left “abandoned” (Selmeczi 2009). In contrast, Pottage’s succinct reflections on IP find “the patent process […] almost the paradigmatic example of a bio-political programme”, which “[does] not identify [itself] with one side of the distinction between norm and nature, rather [it] treat[s] the distinction itself as a provisional programme which serves to govern [its] own operation” (Pottage 1998, 746 f.). This interpretation of IP as biopolitical programme emphasises IP’s contingency on changing definitions of ‘truths’, rather than a re-inscription of absolute boundaries. The notion of IP as a biopolitical programme can be interpreted as an earlier statement on the “responsive” function of law (Golder and Fitzpatrick 2009) within governmentality, reflecting “the productive capacity of power” (Lemke 2005, 3). This moves away from a straightforward equation of IP with biopower, and rather begins to explore the interaction of IP with notions of life, where IP re-inscribes boundaries and faces challenges in the name of life.