Pharma link—their pharma impacts are an expansion of the bioeconomization of life

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.