Economic explanations of IPR are insufficient—the interaction between commodity and gift economies requires an analysis of governmentality—materialism underestimates the new resilient neoliberal subject

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 51-56. LJS

However, attempts at categorizing IPRs as gift or commodity reveal a more complex situation. IPRs on information derived from human genetic materials incorporate elements of both categories of the commodity and the gift, as IP ‘commodifies’ information in a manner that actively separates any connection between the donor and the owner of IPRs derived from the donation. Titmuss pointed out that the free donation of blood ensured a higher quality of the donation compared to that of paying donors– arguably because of “an altruistic motive” (Titmuss 1997, 124 and 125). But in the case of IP, donors are “legally excluded from any stake in […][IP’s] profitability” (Waldby and Mitchell 2006, 24). Instead of giving rise to the socially beneficial effects of the gift relation observed by Titmuss in the area of blood donation, IPRs preclude donors from any form of societal recognition – especially on the international level. In the case of IP, the dichotomy of gift and commodity results in a rather cynical situation, in which “[Titmuss’] strategy to make the human body a bulwark against the commodification of social life, a strategy now institutionalized in bioethical procedure, has simply rendered the body an open source of free biological material for commercial use” (Ibid.). This opportunistic exploitation of altruistic motives for donation goes beyond a dichotomous relation between gift and commodity, and needs to be understood as more than a coincidence. While the contrast between commodity exchange and gift economies can reveal some of the limits of an analysis determined by a focus on economic relations in a market, it cannot further explain the connection between the “moral enforcement” of donations and the exploitative function of IPRs with regards to donations. Rather than producing societal cohesion, the moral duty to provide voluntary donations here becomes embroiled in a different political project, as chapter V of this thesis argues. Using the example of active patients who participate in research in the endeavour to improve their own condition, this chapter points out that patients are encouraged to take responsibility for their physical condition, now defined in genetic terms according to a new “somatic ethics” (N. Rose 2008a), and become actively engaged in improving their self in an entrepreneurial manner (McNay 2009). Focusing on reinstating a more ‘appropriate’ kind of property cannot account for the way in which these patients challenge exclusion from research by using IPRs in order to promote their own well-being. This behaviour confronts IP with a new ethics based on genetic truth, which challenges IP’s exclusionary role towards patients, preventing them from participating in the use of their donation. After briefly drawing attention to the limitations of the commodification critique’s focus on market relations as the determining force of IP’s relation to life, the last section of this chapter then shows how other analyses of the biotech/ life science sector have begun to engage with the ways in which “life as a productive force” (Yoxen 1981) is harnessed by the economy but also continues to produce problems and challenges for governing. 2.3. The Limits of the Commodification Paradigm – ‘Forgetting’ Life Critical perspectives on IP’s ‘commodification’ of life thus debate the appropriateness of the underlying parameters of IP, and in this way “serve to reproduce the very processes that they criticise” (Pottage 1998, 758). This focus on the parameters of commodification engenders an economically determined understanding of social relations, and marginalizes a wider politics of life. A deeper understanding of the notion of ‘commodifcation’ derived from the work of Marx and the Frankfurt School reveals the extent of the economic determination implied in the commodification critique. While IP’s role in the commodification of life certainly needs to be seen critically, the “paradoxes” (Waldby and Mitchell 2006, 163) at the intersection of the economy and knowledge over life demand a less unidirectional understanding of IP’s role in this. Genetic conceptions of life also challenge IPRs, by undermining the distinction between inventions and discoveries (see chapter IV), and by giving rise to new demands on laws and policies regarding the treatment of life (see chapter V and VI). This thesis argues that in the management of these challenges, law takes on a new role as a mode of governing tensions – which goes beyond IP’s unidirectional role in the economy as a tool for commodification. Marx’s critical analysis of capitalism centres on the relation of labour to the commodity, which is constituted by a process of abstraction or alienation not from its use or purpose, but with reference to the amount of human labour spent on it (Marx 1990, 127). This objectification of labour in the commodity gives rise to its “fetish character” 7: “A commodity is […] a mysterious thing, simply because in it the social character of men’s labour appears to them as an objective character stamped upon the product of that labour; because the relation of the producers to the sum total of their own labour is presented to them as a social relation, existing not between themselves, but between the products of their labour.” (Ibid., 164) The objectification of “men’s labour” in the commodity by means of contingent processes of value attribution is here seen as the basis for social relations. It “transforms every product of labour into a social hieroglyphic… [which] [l]ater on, men try to decipher […] to get behind the secret of their own social product” (Ibid., 167). The process of commodification thus has objective and subjective implications: “Objectively a world of objects and relations between things springs into being […] [whose] laws confront [man] as invisible forces that generate their own power. Subjectively […] a man’s activity becomes estranged from himself, it turns into a commodity which, subject to the non-human objectivity of the natural laws of society, must go its own way independently of man just like any consumer article.” (Lukáçs 1971, 87) This determination of the social realm by a system of meaning formed with reference to the exchange value of the commodity is decisive for the understanding of critiques of commodification – which thus focus their critique on a sphere of politics fundamentally determined by the exchange value of commodities. Crucially, this critical focus on commodification entails a marginalisation of understandings and content of social relations that do not fit this economic rationale, as the processes of abstraction already entail a “forgetting” of those less commodifiable contents. As Adorno and Horkheimer point out, “[a]ll objectification is a forgetting” (1979, 230). The use of the concept of commodification in critical theory thus serves as a reminder of the processes of abstraction and alienation involved in the constitution of the commodity, and the net of social relations that emerges from this process, enveloping the individual. The commodification of human tissue, in extension, folds the individual into these relations (determined by exchange value) on the level of physical existence, and critiques focus on the ever-increasing sphere of this economically determined net of social relations. This critique of commodification has a particular normative content, as Honneth notes: “it signifies a type of human behavior that violates moral or ethical principles by not treating other subjects in accordance with their characteristics as human beings, but instead as numb and lifeless objects – as ‘things’ or ‘commodities’.” (Honneth 2005, 94) Importantly, pervasive “invisible forces” created through economic relations of exchange are “confront[ing] [man]” (Lukáçs 1971, 87) and bringing about these morally reprehensible effects of commodification. From this perspective, IP’s economic role on the one hand confronts the individual as an abstract regime that is virtually unchangeable, and on the other, turns the subject’s involvement in research into a commodity which “must go its own way independently of man just like any consumer article” (Ibid.). In this vein, Haraway for example criticises IP as “the kind of relationality that poses as the-thing-in-itself, the commodity, the thing outside relationship, the thing that can be exhaustively measured, mapped, owned, appropriated, disposed” (Haraway 1997, 8). But she also notes that this relationality prefers measurable and knowable content at the expense of all other “bumptious” qualities of nature and life, which are sidelined (Ibid., 135) – for example in the overwhelming focus on the mapping of the human genome, and the discarding of “junk” DNA. This ‘forgetting’ or dismissing of a vast array of nature’s ‘content’ highlights IP’s reliance on measurable forms of knowledge, but it also assumes a clear unproblematic complementarity between genetic understandings of life and IP, and does not further complicate this relation. But genetic sequences, as the Myriad judgement shows, can pose significant problems to the IP regime, which in response struck a compromise ensuring some patentability while also acknowledging the informational content of genetic sequences. Also, as chapter V shows, patients often freely volunteer their genetic information and even in some cases actively patent their own condition to exert control over research in this area. This thesis argues that these uses of IP require a different perspective, which places emphasis on changes in the use of IPRs beyond the sheer provision of commodities for the market. Foucault’s critique takes a “different direction” to that of the Frankfurt School, especially where it comes to the construction of notions of selfhood (McNay 2009, 62; Burchell 1993). It “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 processes of homogenisation through the production of false freedoms, Foucault’s accounts look at how processes of “active differentiation” for instance encouraged by the notion of the “self as enterprise” give rise to a more resilient neoliberal system (Ibid., 63). As the next chapter sets out in more detail, this productive way of governing through inciting “active” forms of self-actualisation is explored on three different levels in the remainder of this thesis, exploring the contributions of IP law to the governing of life on the level of knowledge, the subject, and the exercise of power. An emphasis on processes of identity formation and governance has also been applied in some recent analyses of the life science/ biotech sector (N. Rose 2007b; Rajan 2006; Cooper 2008; Rouvroy 2008). While none of them focus on the role of IP in this context in a comprehensive and rigorous manner, the last section of this chapter shows how they account for the wide influence of the genetic vision of life in their analyses.