IP must be viewed as part of a genetic dispositif—disciplinary anatomo-politics and biopolitical management

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.