Reductionism DA—commodification arguments detracts from deeper understandings of IP law’s productive function in governing knowledge

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 19-20. LJS

The focus on the ‘commodification’ of aspects of life presents a clear normative critique of this process’ detrimental effects on developing countries and the availability of knowledge for research and development. However, this critique places overwhelming emphasis on the economic determination of legal and social relations, in which IPRs are understood as a unidirectional mechanism enabling processes of commodification for exchange in the economy. This unilateral reading of IP’s role in the economy detracts from a deeper understanding of its conflicted and less unidirectional role in the normalisation of knowledge and in the regulation of participation of patients and developing countries within the bioeconomy. It also does not account for the variety of motivations for participation in such undertakings, not all of which are driven by economic concerns. This thesis argues that an analysis of IP’s encounter with life needs to account for IP’s functions within a developing political sphere based on genetic conceptions of life. In contrast with the commodification critique’s unidirectional determination of IP’s role, Foucault’s notion of governmentality “understands the commodification of subjective experience not so much through ideas of passive consumerism, standardization and heteronomy, as through ideas of active differentiation, regulated self-responsibility and depoliticized autonomy” (McNay 2009, 62). Instead of looking at the homogenisation of society with reference to an alienating system of abstract value creation, Foucault’s concepts highlight how active processes of differentiation for instance contained in the notion of the “self as enterprise” give rise to a more resilient neoliberal system (Ibid., 63). The genetic conception of life here provides novel parameters for responsible conduct in a new “somatic ethics” (N. Rose 2008a). Importantly, these active processes of self-governing can both reinforce and also challenge the IP system, as in the case of PXE International’s use of patents on the genetic condition pseudoxanthoma elasticum (PXE) for the purpose of exerting control over research agendas without following commercial aims (see chapter V). IPRs on genetic conceptions of life are thus used in a less unidirectional way than the notion of commodification suggests, and are rather becoming part of a diffuse net of power relations. This perspective on the governing of life directs attention to the role of law in setting out the conditions on which the economic system operates – for example putting in place the rules necessary to guarantee a ‘free’ market. These conditions conduct the behaviour of individuals within this market, rather than just operating as restrictions, or punishments. Law thus is “productive” in this function, and becomes increasingly included in the “governing” of economic and social relations. Foucault’s concept of governmentality points to the central relevance of knowledge or ‘truth’ for the determination of appropriate conditions that “conduct the conduct” of individuals for example in the market (Foucault 2008, 186). These parameters also seek to enable a form of governing that intervenes as little as possible in the form of direct punishments or orders – heeding an “economic” calculus for determining an optimum amount of governmental intervention (Ibid., 19, 208, 319; N. Rose and Miller 2010). This economic calculus can however be challenged by emerging biopolitical strategies, which focus on fostering the life and wellbeing of populations on the basis of knowledge over life itself (Foucault 1978, 138). This thesis argues that IPRs are increasingly embroiled in tensions between the operation of the market and the significance of genetic knowledge for the governing of life. At the intersection of knowledge and the market, the IP regime is doing more than merely creating commodities for exchange in the market: it elevates certain forms of knowledge over others, normalises an official canon of knowledge, enables specific forms of participation in the economy, and prevents others. In fulfilling these roles, the IP regime “governs” challenges arising from a genetic conception of life – which give rise to a particular politics of life. This analysis certainly does not mean to suggest that IPRs do no longer produce commodities for the economy, or that the entire apparatus of IPRs is undergoing a radical change, but rather seeks to trace an emerging engagement with a political sphere of life that can pose significant challenges to the IP regime on the international and the national level.