Intellectual property is historically and contemporarily an extension of US imperialism

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.