Biopolitics is the best explicatory framework for IP—national, international, economic, political, and imperial dimensions

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.