No perm – IPR

Classical economists justify protection for public goods 19 (like plant genetic resources) primarily on the basis of an incentive theory.20 The incentive rationale assumes that, in the absence of protection, society may see insufficient creative activity. Therefore, authors and inventors need the lure of a limited monopoly in order to produce valuable new creations. One can understand why most economists are not interested in arguing for new property rights for long-term occupant communities. A theory aimed at providing incentives for new creations does a poor job of justifying protection for existing knowledge. Long-term occupant communities do not argue that they need incentives to invent. The knowledge they have, and the plant genetic resources they cultivate, already exist.

Other, non-incentive-based, economic arguments are similarly unavailing. Although assigning property rights (especially in land) is desirable to clarify issues of ownership in order to facilitate market exchanges, unimproved plants and plant knowledge are not analogous to land. Under the present legal regime, investors do not have to worry about competing claims to existing knowledge. Ownership in unimproved plant genetic resources does not have to be clarified for exploitation to occur. To illustrate, consider that an oil company wanting to drill for oil will not make the investment to do so until it has secured the proper legal rights in the land it wants to exploit. A pharmaceutical company has no parallel concerns about ownership of an existing strain of germ plasm it had discovered in the rain forest. As illustrated in the two hypotheticals, those who want to exploit plant genetic resources currently do so freely, without the need to compensate anyone. In addition, given the diffuse nature of knowledge held by long-term occupant communities and the difficulty of identifying owners and assigning rights within or between groups, an attempt to clarify rights might result in only marginally decreased uncertainty.21 Economic arguments based on clarity do not promise to take LTOC Advocates very far.

Economists also sometimes champion new property rights when they will result in the increased dissemination of information. For example, the requirement that patented inventions must be fully described and available to the public at the Patent Office (and now its website), surely results in the dissemination of valuable information. LTOC Advocates, however, argue that information about plant genetic resources is currently too widely disseminated. They liken the developing world to a leaky sieve and argue that new intellectual property rights are needed to slow the flow of information from South to North. Given this attitude, it will be difficult for them to harness arguments based on the policy of encouraging dissemination.

One might also offer an economic argument that long-term occupant communities need new property rights in order to have adequate incentive to maintain plant genetic resources (rather than to engage in inventive activity). However, this is difficult. After all, they have maintained knowledge and resources, sometimes for thousands of years, without any external legal motivation. It should be noted, however, that as communities begin to unravel, traditional knowledge becomes lost.22 Although external incentives may be necessary to preserve knowledge as a culture disintegrates, the solution may not be the creation of new intellectual property rights. The need for preservation incentives in a desperate case is probably immediate and unlikely to be supplied by abstract intellectual property rights that cannot quickly translate into monetary value. New rights are probably not an efficient solution to the preservation problem. In short, none of the arguments typically offered by economists are likely to advance the intellectual property-based strategy of LTOC Advocates.