Tyfield 10

The effects of these changes are legion – though we may note immediately a clear focus upon the life sciences where they are most controversial – and have been judged to be overwhelmingly negative by numerous commentators. A non-exhaustive list includes the following. First, by imposing patents on medicines necessary for treatment of diseases affecting large sections of the developing world, such as AIDS or tuberculosis, costs of these drugs are inflated beyond the financial means of most patients (Drahos and Mayne 2002). Second, by setting up IPR regimes in developing countries with rich resources of biodiversity, ‘bioprospecting’ (or ‘biopiracy’, depending upon your perspective) is encouraged, in which private enterprises from the Global North appropriate common resources of the Global South. This process is particularly facilitated by genetic engineering techniques, which allow even insignificant genetic modification of these plants to be patented (Drahos and Braithwaite 2002; Shiva 1998, 2001). Third, Northern businesses also exploit the traditional medicinal knowledge as pointers for further research, and can patent the resulting knowledge (Dutfield 2003; Shiva 1998). Fourth, through the substitution of traditional crops and farming methods by patented, genetically modified crops, issues of social displacement and food security for billions of the world’s peasantry arise (Shiva 1998, 2001). Last, but by no means least, the economic case for TRIPs is strikingly absent. First, as regards its effects on economic growth, there is almost unanimity in the economic literature that TRIPs shifts the balance of economic gains significantly in favour of developed economies, particularly the United States, and away from developing countries (at least in the ‘short term’), thus exacerbating global inequalities in economic development.3 Indeed, one widely respected, and generally proTRIPs, analysis concludes that ‘blind faith’ is the only basis for the rest of the world outside the United States to accept TRIPs (Maskus 2000: 190). Even within the developed economies, including the US, the case for TRIPs was both spectacularly weak and dependent upon forging from scratch a conceptual connection between IPRs and free global trade. As regards the latter issue, this involved a wholesale redefinition of the nature and purpose of patents. Patents are (temporary) monopoly rights regarding the exploitation of various ‘intellectual’ resources. As such, they have traditionally been treated as directly opposed to free and open markets. Portraying patents as a central issue for the global opening of trade was thus an extraordinary conceptual sleight of hand. Furthermore, patents have generally been legitimated as necessary incentives for individuals to engage in the risky and uncertain process of technological invention. Conversely, the argument for TRIPs was that scientific research would not be developed into profitable commodities without patents – a concern with innovation rather than invention. This opens the economic case for TRIPs to the objection that IPRs are a relatively unimportant mechanism for the translation of scientific research into innovation in the vast majority of industries (Mansfield 1986). Furthermore, literature on this empirical claim – which was still ‘emergent’ in 2003, some 10–15 years after the TRIPs negotiations (Cohen and Merrill 2003: 3) – shows that there are few ‘robust conclusions’ for patent policy regarding its connection to innovation (Jaffe 2000: 531, 554) and that, if anything, strengthening patents has had distinctly negative effects on innovation in the US (Jaffe and Lerner 2006). TRIPs thus effects momentous and contested changes to global trade rules in the absence of any credible economic case. Yet amazingly ‘probably less (sic) than 50 people were responsible for TRIPs’ (Drahos and Braithwaite 2002: 10, quoting a senior US trade negotiator). Furthermore, these people were representatives of private businesses, mostly based in the US, with significant interests in IPRs, not politicians or national trade diplomats who actually signed the agreement. Thus ‘in effect, twelve corporations made public law for the world’ (Sell 1999: 171). These companies together formed the Intellectual Property Committee (IPC) in March 1986 to coordinate their political lobbying for TRIPs. Regarding patents, the American pharmaceutical TNCs (henceforth ‘Big Pharma’) dominated, particularly Pfizer, while for copyright it was the IT and recording industries, particularly IBM. These companies stood to profit enormously from TRIPs; and, indeed, the economic rationale for TRIPs (though not its justification) is only apparent for these agents. The IPC’s control of the US Trade Representative (USTR) was almost total. For instance, the IPC drafted memos that were then circulated as government policy. Furthermore, while those behind TRIPs managed to get ‘95 per cent’ of what they were after (Drahos and Braithwaite 2002, quoting the Chairman of the IPC), this was also in the face of striking opposition, particularly from the large developing countries, India and Brazil, that stood to lose out significantly. Yet eventually this opposition was neutralized, not least through the deployment of threats from the USTR that these countries would be subject to American penalties and tariffs for their ‘restrictive’ trade practices. In these circumstances, the only alternative was a multilateral agreement that could at least provide a forum for some arbitration of these disputes. It is clear, therefore, that TRIPs represents the deployment of exceptional political power. Yet this cannot be explained purely in terms of strong corporate interests getting their will, as comparison with parallel neoliberal measures of global regulation reveals. The negotiations for global rules on financial investment (the TradeRelated Investment Measures agreement, TRIMs) and on trade in services (General Agreement on Trade in Service, GATS) were both much less successful for their corporate protagonists, despite having significant backing from powerful industrial and financial sectors (Sell 2003).