The notion of intellectual property is built on a fundamental premise that transforms knowledge into a commodity. This process alters communal interactions redefining relationships in coercive terms where interactions are solely transactional and hierarchical.

The decision to treat life forms, and knowledge or information, as if they were “transactions and products” has far-reaching consequences.44 The manner in which the introduction of an intellectual property system alters communal relationships provides additional grounds for opposing biocolonialism. Legal theorists have begun to examine the potential political, economic, and social effects of the expansion of the proprietary control over information. Shelley Wright contends that designating something as private property and a valuable commodity involves a decision about how human relationships are recognized and regulated by law. How the law characterizes information has implications for how people are perceived to, and do, interact. When relationships are characterized in terms of property, and information is regarded as a product, “Human interaction becomes closed, exclusionary, coerced and hierarchical . . . Other human actors are seen as either potential trespassers or potentially useful partners to relationships that are largely seen as forms of transaction or exchange.”45 To treat human relationships as constituting property is to regard individuals as atomized entities, whose communicative and relational connection is determined by power, i.e., competition over control, or . . . rights . . . Property is about control . . . control over other human beings through categorization and exclusion . . . and control over the World.46 The exclusionary nature of property rights was emphasized by Blackstone himself, in the Commentaries, where he grounds English law on the right to property: “that sole and despotic dominion which one man claims and exercises . . . in total exclusion of the right of any other individual in the universe.”47 It is because property rights are exclusionary that they can be characterized as “private”; the public domain is whatever remains after private rights are exhausted. Wright observes that, although patents require that the protected information be made public in the sense of being accessible, use of that information remains the private right of the patent holder or licensee. As a commodity, information is treated “as if it were an object that can be separated and dealt with quite apart from the relationships within which it is created.”48 The public/private distinction becomes “a polarized division in which relationships are juxtaposed and granted legal attributes that fix them within regimes of power, rights and obligations . . . It is always an ideological structure, even where it has real effects.”49 The way the ideological distinction between private rights and the public domain is invoked in biocolonialism illustrates its effectiveness as a process of imperialism. We saw earlier how, just as the concept of terra nullius at one time provided legal and moral cover for the imperial powers’ treatment of indigenous peoples, the concept of public domain plays a comparable role in late capitalism. Declaring that the land belonged to no one prepared the way for its conversion into private property. Similarly, maintaining that the intellectual, cultural, and genetic resources are in the public domain, that they belong to everyone as part of the common heritage, now prepares the way equally effectively for their conversion into private property. The notions of property that belongs to no one and of property that belongs to everyone are functionally similar, as we argued earlier, enabling a conversion process which leads to the privatization of property. Wright’s discussion is particularly valuable for what it suggests about the aftermath of this process. Because exploitation rights are temporally limited for both copyrights and patents, at some point the protected property ceases to be private and falls into the public domain. When this happens, the information contained, for example, in a patent specification, may be used by anyone. However, Wright contends, this does not guarantee subsequent free and equal competition in the marketplace as the ideological justification for intellectual property would have it. The original patent holder will still benefit from the “private rights of property within which the information was in fact created and used.”50 [These] will still govern its continuing existence even after the rights themselves come to an end. The effect of the continuing influence of property rights is to exclude those who cannot replicate or create an adequate context of relationships in which the information can be used and exploited.51 Thus, Wright explains, although the patent holder’s exclusive use monopoly may end with the expiration of the patent, the benefits secured by it are not immediately severed. They continue to accrue to the patent holder or to anyone else able to reproduce a relational setting conducive to use of the information. Information cannot readily be divorced from the context of the relationships in which it was created. If information is the product of private rights, as western intellectual property law maintains, it will carry its history with it when rights to its use pass from the individual patent holder to everyone as it enters the public domain. What Wright emphasizes is how this alters the nature of the public domain. When information is construed in terms of private proprietary rights, it limits our understanding of the public domain to a diminishing zone of undefined space, in which information can never be free because it has been created as a product of private rights. What remains of the public domain cannot be visualized as a single unitary entity: rather it is seen as fragmented into overlapping concepts of expression, accessibility, and exploitation. The public realm . . . is riven and distorted by the shadows of pre-existing private rights of property.52 These types of consideration reinforce the need for indigenous communities to continue their efforts to develop alternatives to the intellectual property rights which have been formulated to advance the interests of high-tech corporations and the initiatives of western science.53 With such a great deal at stake, arguably with everything at stake, a growing number of alternatives are currently being investigated.54 First, community intellectual property rights are being proposed to replace individualized western intellectual property rights. Criteria for such communal rights have been developed. Because future generations are unable “to consent to transactions that threaten their existence as a group,”55 some of these require recognition of the inalienability of cultural property. Second, a Model Community Intellectual Rights Act (“MCIRA”) has been drafted. The concept of community intellectual rights moves away from the concept of property which is problematic for many indigenous peoples and focuses on preventing the “privatization and usurpation of community rights and knowledge through existing definitions of innovations.”56 The act recognizes indigenous peoples as innovators because their knowledge is unknown to the outside world. One possibility is a community register, which allows people to document all known plant and animal species with details of their uses and to determine the conditions of access, if any, to this information. Such a register may also be of value in supporting land claims because it provides evidence of intimate knowledge of the local environment. Third, model provisions have also been proposed by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the World Intellectual Property Organization for extending conventional copyright so that intangible expressions, as well as fixed works, are protected. Arguably, these could include traditional genetic resources. An additional development, which recognizes the importance of political as well as economic considerations, is the emerging concept of traditional resource rights. This is an integrated rights concept which articulates the many “bundles of rights” that can be used for protection, compensation, and conservation and that may form the basis for a sui generis system. These include intellectual property rights, but also included are major legally binding international agreements (the Convention on Biological Diversity; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; etc.) as well as various soft law instruments and mechanisms (such as the Universal Declaration of Human Rights, the United Nations Economic and Social Council, and the Working Group on Indigenous Populations, Agenda 21, and the Rio Declaration). The concept of traditional resource rights emphasizes that control over knowledge and biogenetic resources is central in indigenous struggles for self-determination and covers a very broad range of rights.57 However, there are at least two problems with such an approach. The Four Directions Council, a Canadian-based indigenous peoples organization, contends that no single international sui generis model can be imposed on all, given the wide variation in indigenous jurisprudential systems: Indigenous peoples possess their own locally-specific systems of jurisprudence with respect to the classification of different types of knowledge, proper procedures for acquiring and sharing knowledge, and the rights and responsibilities which attach to possessing knowledge, all of which are embedded uniquely in each culture and its language . . . Any attempt to devise uniform guidelines for the recognition and protection of indigenous peoples’ knowledge runs the risk of collapsing this rich jurisprudential diversity into a single “model” that will not fit the values, conceptions or laws of any indigenous society.58 Also, traditional resource rights clearly embrace and reflect a western conception of rights, a fact which may render them problematic for various indigenous nations. Addressing the protection of indigenous cultural property, United Nations Special Rapporteur Erica-Irene Daes comments that “possessing a song, story or medicinal knowledge carries with it certain responsibilities to show respect to and maintain a reciprocal relationship with the human beings, animals, plants and places with which the song, story or medicine is connected.”59 Consequently, it may be more appropriate to speak in terms of “a bundle of relationships, rather than a bundle of economic rights.”60 Despite this, there are strong convictions, if not a consensus, about the value and efficacy of human rights discourse as an essential tool in the struggles of historically oppressed peoples.61 Central among these are calls for the recognition of group rights in intangible property.62