New IPR protections increase costs and prevent companies from curing diseases. Protections fail – 6 warrants

[*529] Those seeking philosophical justifications for the protection of plant genetic resources have a harder time than those seeking protection for tribal art works. First of all, most plants and knowledge about plants develop from the need to satisfy dietary or medicinal needs as opposed to the need for self-expression. Admittedly, some plants and their uses may be closely tied to group identity, even to the point that use of the resource by an outsider would be considered offensive. 39 Hegelian personhood theory, however, contains an important limitation: rights to protect personhood should not unreasonably infringe on the rights of others in the community. 40 Policing this limitation creates a legitimate role for the State in Hegel, and it is easy to see how a balancing of individual rights within the polity becomes necessary. In the context of the biopiracy debate, the problem is justifying the privilege of one group's interests in cultural expression over another's interest in good health and nutrition. Imagine a long-term occupant community that uses Plant X to cure severe asthma only in the context of a religious ceremony. Uses outside the ceremonial context would offend the group. Given the choice between the group's interest in self-expression and the interest of world-wide asthma sufferers in gaining relief from their disability, Hegelian philosophy provides little compelling reason to privilege the claims of the group. Even post-modern philosophy, usually very sympathetic to claims made by the victims of colonial oppression, provides only mixed support for a property rights approach to biopiracy. Rosemary Coombe and Vandana Shiva, for example, wonder whether imposing Western (Northern?) notions of property on long-term occupant communities best serves their interests. 41 Might not imposing a regime of intellectual property rights in the rain forest be a form of neo-colonialism? Creating new property rights is, in fact, a rather Western form of problem solving. 42 [*530] It should be noted that it is not impossible to invoke Locke, Hegel and other philosophers in support of creating new intellectual property rights. In fact, one sometimes hears their vocabulary invoked by those who have obtained increased rights. In particular, politically powerful constituencies have sometimes offered arguments about morality and free-riding as an effective smokescreen for the expansion of intellectual property rights. For example, the music publishing industry trots out the heirs of famous composers whenever it seeks an extension of the copyright term. Those who observe the legislative process closely, however, understand that the congressional motivation for extending monopoly rights is not based on pity for the grandchildren of long-dead artists. Free-riding and unjust enrichment rhetoric is offered to hide acts of corporate welfare and has traditionally been most useful to groups with vast political clout. For political underdogs, like LTOC Advocates, the rhetoric of moral philosophy, like the rhetoric of economics and history, is not effective against biopirates.C. Mega-Corp: The Anthropologist's Natural Rhetorical AllyOne powerful group has consistently argued for expanding intellectual property rights. Despite the best efforts of public interest groups and academics, large multi-national corporations engaged in pharmaceutical, agribusiness and biotechnical research have succeeded in significantly broadening protection for a wide variety of works in the last decade. 43 The success of corporate lobbyists even includes instances of sui generis protection. 44 Unfortunately, large multi-nationals are unlikely to argue in favor of increased rights for long-term occupant communities because having to purchase licenses from them would raise their research costs. Part III of this paper will explore how the power of these multinationals might be co-opted by long-term occupant communities. Indeed, their success may depend on finding a way to set sail with the biopirates. [*531] II. Normative Arguments Against New Property RightsThe preceding section of this essay describes the scarcity of rhetorical tools available to advance the pro-property strategy of LTOC Advocates. It is not always necessary, however, to marshal arguments palatable to the intellectual community. As the two initial hypotheticals suggest, there is a strong emotional appeal that can be employed on behalf of long-term occupant communities. 45 Perhaps policymakers, unlike academics, can be swayed by the seductive vocabulary of justice and moral entitlement. I offer two normative arguments below to demonstrate why even policymakers with a natural sympathy for long-term occupant communities will be unlikely to heed the call for new intellectual property rights.A. Don't We Want a Cure for Cancer? Corporate interests and anthropologists agree on the vast potential of the world's rapidly disappearing plant genetic resources. 46 Hundreds of important and efficacious drugs have already been developed from plants found in developing countries. 47 In fact, four-fifths of all drugs have their basis in natural plant resources. 48 The world's biodiversity is also an important source of new agricultural products, for instance, crops that produce more per acre and are more resistant to disease than previous strains. 49 Considering the overall well-being of the human population, some would suggest that the two hypotheticals presented at the beginning of this essay represent success stories. A cure for cancer may well be found in the rain forest, and we certainly hope someone will find it. New property rights for long-term occupant communities would raise the cost of bio-prospecting and therefore the cost of developing new drugs and crops from existing plant genetic resources. Pharmaceutical companies, agribusiness and bio-tech firms would be forced to buy information and germplasm from [*532] rights holders and might well encounter refusals to deal. Although principles of unjust enrichment suggest that the biopirates should pay, and principles of group autonomy militate in favor of respecting the cultural and religious practices of disempowered groups, policymakers will weigh the cost to the sick and hungry against privileging these principles. A strong normative argument will be offered that the interest of the world community is not well served by the creation of new property rights, especially when the practice of biopiracy does not entail depriving long-term occupant communities of their traditional medicines or food. With biopirates providing medicine and food to much of the world, policymakers may well demand an especially compelling argument as to why they should be economically sanctioned.B. Preserving BiodiversityThe loggers are winning. Despite efforts by environmentalists and LTOC Advocates, the world's biodiversity is disappearing at an alarming rate. 50 This environmental disaster implicates not only forest dwellers, but those who wish to be cured and fed by products made with plant genetic resources. It also threatens the future profits of the pharmaceutical, agribusiness, and bio-tech firms who would like to make and sell new medicines and food. Biopirates, in other words, are the natural enemies of those who would log the existing primeval forests to extinction. 51 While this essay is not the place to settle the debate over whether market forces alone can save the rain forests, it is clear that biopirates lose potential income [*533] as rain forest disappears. This insight has implications for the creation of new intellectual property rights for long-term occupant communities. Do environmentalists and anthropologists (not to mention those who consume new medicines and food products) really want to make the rain forest a less attractive source of profits for the natural enemies of logging interests?A recent article in the Journal of Political Economy concluded that "numerical simulation results suggest that, under plausible conditions, the bioprospecting value of certain genetic resources could be large enough to support market-based conservation of biodiversity." 52 The key to Rausser and Small's finding, that pharmaceutical companies may have a financial incentive to engage in conservation efforts, is the notion that "research leads" significantly diminish the cost of bio-prospecting. If firms were to test plants randomly in the hope of identifying valuable germ plasm, the cost of bio-prospecting would be so significant that expending resources on conservation would not be feasible. 53 In practice, Rausser and Small note, bio-prospecting is not random, but rather driven by "research leads" that significantly reduce the cost of searching. 54 If research leads provided by long-term occupant communities are key to bio-prospecting success and the success of bio-prospectors is directly related to preserving habitats, do we really want to establish new property rights in that information? Policymakers must consider the argument that bio-prospecting in [*534] threatened areas should be made cheaper, rather than more expensive.C. Natural Allies ReduxLoss of biodiversity and the logging of virgin forests are threats to long-term occupant communities and multi-national pharmaceutical, agribusiness and bio-tech firms alike. An effective strategy to fight logging interests and preserve biodiversity would draw these two allies closer together rather than driving a wedge between them by adopting the rhetoric of property rights. 55 In the fight against those who destroy their homeland and their botanical resources, long-term occupant communities need the international clout of the biopirates on their side. The language and vocabulary of property rights is not likely to co-opt them and therefore may be detrimental to biodiversity and the long-term interests of local communities.III. Market Failure and the Possibility of Effective Rhetoric If pharmaceutical companies are the natural enemies of loggers, then why have they not purchased and preserved huge tracts of rain forest? Why has the market not facilitated a close working relationship between long-term occupant communities and those who want to exploit their knowledge? Given that one potential ally possesses vast financial and political resources while the other possesses priceless information and plant genetic resources, why haven't the two joined forces to slow habitat destruction? If Rausser and Small are right about economic incentives, then we appear to be faced with significant market failure. A wide variety of commentators agree that intervention is needed to preserve the [*535] earth's biodiversity (and with it the cultural diversity of the inhabitants of biologically rich areas). 56Although long-term occupant communities and the large corporations who would like to exploit their knowledge are theoretically natural allies, the market has failed to bring them together efficiently. Having made the argument that market intervention in the form of new intellectual property rights for long-term occupant communities is both rhetorically impossible and normatively problematic, this essay will identify six factors that have stymied concerted action by these two groups interested in the preservation of plant genetic resources. The discussion suggests that the most effective rhetoric for co-opting the political might of the biopirates against the forces of habitat destruction is the rhetoric of the market rather than the rhetoric of principle.A. High Transactions Costs If a biopirate wants to establish a long-term working relationship in a biologically rich area, with whom should he establish it? It is often unclear who, if anyone, within a long-term occupant community is authorized to sell knowledge. In addition, frequently more than one group possesses the same knowledge. Pharmaceutical companies trying to act in good faith and provide compensation have run into difficulty in identifying precisely who deserves to be compensated. 57 One solution may be to contract with a national organization instead, as Merck did in its agreement with INBIO in Costa Rica. In the developing world, however, where most plant genetic resources are found, national governments often do not speak for long-term occupant communities. 58 In fact, the two are often antagonists. 59 The sheer cost of transacting over plant genetic resources stands in the way of a functioning market. [*536] B. Corrupt Governments The problem with creating markets for knowledge of plant genetic resources is especially acute when corrupt local and national governments are unwilling to facilitate transactions with their least powerful constituents. In the developing world, we see a pattern of dislocation, destruction of homeland, and a preference for logging and commercial farming interests that threaten both biodiversity and the very existence of long-term occupant communities. Governmental antagonism to these communities complicates transactions with them. Even where official policy is benign, institutionalized bribery and the lack of a reliable judiciary make establishing a flourishing market difficult. Bureaucratic impediments to bio-prospecting may make it entirely unprofitable.C. End-Term Problems The lack of government support for long-term occupant communities, combined with government support for logging interests may contribute to a sense that the world's remaining biologically rich environments are doomed. In end-term situations, perverse incentives exist for both sellers and buyers. As commercial lawyers well know, in the period before bankruptcy, all bets are off. Consider the history of a large extinct sea bird, the Great Auk. It inhabited the cold waters of the northern hemisphere in great numbers until hunting, to supply food for the crews of sailing ships, brought it to the verge of extinction. One last colony existed on Eldey Island, Iceland. In 1844, naturalists and collectors came to the island in order to harvest the last of the birds before they became extinct. 60 The birds of the last colony ended up in natural history museums around the world. If the world's strongholds of plant genetic resources are rapidly disappearing, along with the peoples who have information about their properties, then we are likely to see a mad rush instead of the sort of stable market that would facilitate long-term alliances between local communities and corporate biopirates.D. Information Asymmetry Even where a national government is interested in facilitating commercial exchanges, a long-term occupant community's ignorance [*537] of the market value of its plant knowledge makes it difficult to establish a reliable market with those who wish to exploit the information. Initial transactions may be highly one-sided, leading to a lack of interest on the part of sellers to transact in the future. If initial deals are perceived to be exploitative, trust will erode. An Amazonian tribe may understand that tea made from a particular bark will relax muscles without making the drinker drowsy, but it has little information about the international market for muscle relaxants without dangerous side affects. Price setting is difficult in this context, especially when the seller is not sophisticated enough to consider (or desire) transactions involving deferred payments, royalties, or other contingency arrangements. In addition, the buyer often lacks important information about the value of plant knowledge held by long-term occupant communities. It is difficult for a firm to price information it does not have yet.E. Lack of Trust Markets do not function efficiently when the parties to a potential transaction do not trust each other. Long-term occupant communities, already suspicious of destructive outside influences, are understandably reluctant to transact with biopirates who have not respected their culture and have been unwilling to share the fruits of their bio-prospecting. No efficient market will coalesce until long-term occupant communities have good reason to trust those who wish to exploit their knowledge.F. Threats to Cultural Integrity The development of a robust market between biopirates and long-term occupant communities would have some disadvantages for the holders of valuable information. To the extent that some information is considered sacred, only a strong new property rights regime would enable long-term occupant communities to deny outsiders all access. In addition, a robust market would almost certainly reduce the cultural isolation of many groups. Although transacting can present threats, those who argue for an absolute right of cultural integrity must consider whether the strategy of arguing for new intellectual property rights can really help them achieve that goal. They may have to consider the possibility that the choice may be between a second-best world for long-term occupant communities or no world at all. [*538] IV."Your Friend in the Rain Forest": Lawyers and the Failure of ImaginationThe rhetoric of justice and the insistence on moral principles has not stopped the ongoing destruction of the world's remaining biologically rich ecosystems and the communities who live there. It is time to reexamine the rhetorical strategy of those who argue that justice and fairness require the creation of new intellectual property rights for long-term occupant communities. Given that one sure solution to the preservation problem would be to set aside vast tracts of wilderness (a real property answer, not an intellectual property answer), 61 it may be time to set sail with the biopirates and attempt to co-opt their wealth and political clout. Preservation is in the direct financial interest of some of the most powerful private institutions on the earth - international pharmaceutical, agribusiness and bio-tech firms - and it is worth convincing them to support the effort. 62 To do so, it may be necessary to abandon the rhetoric of intellectual property rights. This final section provides two brief points about future dialogue. First, abandoning the rhetoric of morality and justice (the rhetoric of intellectual property rights for long-term occupant communities) does not mean the abandonment of just and moral ends. Second, lawyers must exercise significant imagination in the face of the natural question that the biopirates will ask: Why should I pay for what I can get for free?A. Market TalkOne alternate rhetorical strategy emphasizes the consequences of the market failure described above. Virginia Nazarea has eloquently documented the fragility of plant knowledge systems, emphasizing the need to create and maintain records of what people know about the properties, characteristics and uses of plant resources. 63 Merely conserving plant genetic resources in "seed banks" is not enough to preserve biodiversity. Human knowledge must be preserved also. Unfortunately, this knowledge, the same [*539] knowledge that biopirates currently plunder, is rapidly disappearing. Multi-national pharmaceutical, agribusiness and bio-tech firms must be made to see that it is in their best interest to prevent this from happening. Creative non-intellectual property solutions have already been suggested. Professor Peter Drahos has proposed the creation of a global bio-collecting society. 64 He notes that the "life science industry wants in this field freedom of contract, low search and transaction costs, and certainty of use." 65 He offers an institution that would serve as a central repository of traditional knowledge and arbiter of disputes between donors and those who wish to exploit plant genetic resources. What might pharmaceutical companies be willing to pay for the right to make withdraws from a vast knowledge bank? Although Drahos suggests a complex mechanism for compensating those who make contributions to the bio-collecting society, a simpler and more efficacious arrangement might require former biopirates to secure large tracts of land for donor communities in return for the right to make withdrawals. 66 Creative forms of compensation would more efficiently preserve both biodiversity and community.Jonathon Carlson points out that there is a potential role for the World Bank here. 67 Although the World Bank is not generally known as a friend of the environment, it is one of the few institutions that has the power to influence national governments. To the extent that corruption or bureaucracy stand in the way of a more efficient market for plant genetic resources, the World Bank might be able to help. If former biopirates wished to purchase or quiet title to land in favor of long-term occupant communities, the cooperation of the World Bank would be invaluable. Carlson notes that "Bank support for projects that clarify property rights by granting clear land title to impoverished groups have often resulted in increased [*540] investment in conservation measures." 68 But the project need not be sold on humanitarian grounds only - the express motivation for approaching the bank would be to facilitate the creation of an efficient and durable market in plant genetic resources.Other writers have spoken convincingly in market terms, suggesting the need to explore contractual solutions 69 and emphasizing the need to make habitat preservation part of the exchange for knowledge. Even if creating a functioning market is not feasible, Jim Chen's suggestion of tax responses to market failure may be attractive. 70 A surcharge on products created by the exploitation of plant genetic resources might be directed to habitat preservation. Regardless of the particularities of the arguments offered, a form marketplace rhetoric clearly offers advantages over the rhetoric of justice.If LTOC Advocates cannot adopt a new rhetoric, they may soon lose their chance to grab the initiative. A new draft treaty, the International Treaty of Plant Genetic Resources for Food and Agriculture, represents a growing trend to focus on the rights of sovereign states, rather than the rights of local occupant communities. It has already been signed by eight nations and requires signatories to "recognize the sovereign rights of States over their own plant genetic resources for food and agriculture." 71 Although it provides for benefit sharing with "farmers" 72 (an undefined term) and for "protection of traditional knowledge," 73 it requires that signatories "agree to take the necessary legal or other appropriate measures to provide … access to plant genetic resources." 74 The International Bureau of WIPO is also exploring a nation-to-nation approach to the exploitation of plant genetic resources. 75 While [*541] LTOC Advocates have been busy asserting the need for new intellectual property rights, national governments have been seizing the international policy initiative. As a practical matter, LTOC Advocates may be forced to choose between partnering with multinational corporations or trusting national governments that have a poor track record of conservation and a history of mistreatment of local communities.B."Your Friend in the Rain Forest"Luckily for the aspirations of long-term occupant communities, most large multinational pharmaceutical companies have serious image problems. They have an unparalleled reputation for greed, and their lobbyists are well-known for pressing Congress to ignore the public interest in favor of their own bottom line. The high prices they charge for patented drugs mean the poor often go without adequate medicine. 76 An imaginative lawyer might point out to them that a fix for their reputational problems might be found in the rain forest. Picture the advertising campaign that could follow the purchase of vast tracts of rain forest by biopirates (or should we call them "bio-friends"?):Last January, with help from the World Bank and the Brazilian government, we at Pfizer-ADM-Genentech helped set aside 500 million acres of land in the Amazon basin to be kept forever free from logging and industrial development. Was it merely to help a local community maintain its way of life? [insert footage of thriving village] Not entirely. Was it to help insure that the "lungs of the world" would forever keep producing oxygen? Only in part. Was it to help reduce global warming? We're glad to help, of course, but we really had just one goal in mind: Discovering a cure for little Mary's cancer [insert footage of brave, sick child]. Phizer-ADM-Genentech: Your Friend in the Rain Forest.Commercial advertising revitalized the modern Olympic movement, and there's no reason why it cannot play a role in conserving the world's biodiversity. The point, however, is not that publicity holds the key to environmental preservation, but rather that in a world that will not be saved by sui generis intellectual property rights, lawerly imagination becomes a critical resource. [*542] C. A Final Word About JusticeAlthough the rhetoric of justice is unlikely to convince international policymakers to grant long-term occupant communities new intellectual property rights, it has other clearly effective uses, especially in arguing against strict enforcement of the TRIPS Agreement against developing countries. Consider the words of Vandana Shiva:The US has accused countries of the Third World as engaging in 'unfair trading practice' if they fail to adopt US Patent Laws which allow monopoly rights in life forms. Yet, it is the US which has engaged in unfair practices related to the use of Third World genetic resources. It has freely taken the biological diversity of the Third World to spin millions of dollars of profits, none of which has been shared with Third World countries, the original owners of the germ plasm. 77It is precisely this sort of rhetoric that has led to the agriculture industry's decision not to market seeds with so-called "terminator genes" that would prevent farmers in developing countries from saving seeds. A similar rhetoric of justice and fairness recently resulted in the willingness of international pharmaceutical companies to be flexible with the pricing and distribution of AIDS drugs in South Africa. 78 The rhetoric of justice may also be effective in stimulating (sometimes perhaps through shame or guilt) the willingness to engage in the sort of creative thinking that this essay advocates.ConclusionI have not offered a program to save the rain forests. It will take a powerful coalition of different groups to take on that daunting task. My point is a simple one. Advocating new intellectual property rights for long-term occupant communities is a poor rhetorical strategy for maintaining the world's biodiversity and helping the disempowered groups that hold so much critical knowledge [*543] about plant genetic resources. My positive suggestions for a new rhetoric are decidedly pragmatic and stand in sharp contrast to the "goals of today's romantic social critics, among whom cultural anthropologists stand out in disproportionate numbers." 79 I agree with Alan Wolfe and Michael Brown that "romantic criticism … simply fails to persuade a large public audience." 80 The current rhetoric of biopiracy may gratify our "sense of moral worth but can offer only 'utopian longings that ultimately have no critical edge.'" 81 This essay suggests engaging multi-national corporations on pragmatic terms, using language that is less threatening to their interests and more likely to achieve concrete results. It represents "a return to a realist perspective that approaches social problems in all their ambiguity and nuance, confronting squarely the tragic contradictions that inevitably arise in the everyday life of pluralist societies." 82 Finally, this perspective demonstrates that imagination is the most critical commodity needed by advocates for long-term occupant communities if they are going to find a rhetoric that will take them where they want to go.