AGRUPACIÓN DE ACUERDO CON LAS MEDIDAS DE REMEDIACIÓN Medidas preventivas:

Th at issues related to IPRs, in our case IPRs and development, have become more visible and contested recently has more to do with the rise of the so- called knowledge economy than with any fundamental change in the nature of IPRs. Indeed, IPRs have been contested since their rudimentary begin- nings in the mid-fi fteenth century (Drahos and Braithwaite 2002 ; May and Sell 2006 ) and this has not changed. IPRs determine who can own, control, and make use of what type of knowledge and who cannot; for this reason, they are political and contested. Knowledge and innovation have been a fun- damental part of human history and the struggle for control over them has taken diff erent forms through time. Th e current arrangement that governs IP is one particular materialisation of this historical struggle, one that determines the terms of control over and access to intellectual ‘goods’, that is, knowledge, innovation, creativity, and goods and services that embody them.

While the current IP arrangement has to be understood in this historical context, it should also be pointed out that it is entirely possible to imagine

158 V. Muzaka

a world with no IPRs. Th at they have now become the main way of governing access to and control over knowledge is proof neither of their indispensability nor of their social eff ectiveness and legitimacy. Indeed, compared to the insti- tution of property, that of IP is perhaps more contested because what is to be owned, that is, ideas, knowledge, and other products of human intellect, are not scarce and appropriable in nature in the way tangible goods are. Knowledge is in fact a good example of a public good, being both non-appropriable and non-rivalrous in nature (Stiglitz 1999 ; May 2000 ). 1 _{Th is conceptualisation}

of knowledge as a public good may appear strange today, but the point is that the more familiar conceptualisation of knowledge as something to be individually owned and traded is but one construction amongst many other potential ones. Th is more familiar conceptualisation of knowledge as property is constructed and upheld by the norms and rules embodied in IPRs laws that, essentially, determine which individuals or groups can control knowledge and expressions to the exclusion of the rest, 2 _{thus deliberately creating scarcity}

when none existed before. It is through such exclusion that the scarcity and rivalrousness of intellectual goods is constructed, enabling a price to be taken and knowledge to be exchanged in the market as with any other commodity (Kinsella 2001 ; May 2000 ). Th at is, to say that scarcity of and exclusion from knowledge and other products of human intellect is not a regrettable side eff ect of IPRs: it is their very aim. Th rough IPRs, knowledge thus becomes the

property of some and, importantly, it becomes capital , insofar as its owners can

both claim rights to its economic value and separately trade their rights over such value (Drahos 1996 ). Who owns this capital and how it is used is of par- amount importance not only for the familiar reasons capital ownership mat- ters in a capitalist system, but, more specifi cally, because of the very peculiar nature of knowledge. It is indeed this persistent, profound, and unresolved contradiction between knowledge as private property/capital and knowledge as public good that has permeated contests over IPRs throughout their existence,

providing a permanent normative and instrumental base for action for actors located in diff erent time/space coordinates contesting specifi c aspects of IPRs. It is perhaps unsurprising that some of the main ideas at the core of the IP institution were developed over time by IP owners and private business

1 _{Unlike tangible goods and objects, which can be appropriated individually and thus visibly separated}

from the commons, knowledge and intellectual products are intangible and not appropriable in this way; once created, knowledge can be used by anybody. Such use is non-rivalrous because the ‘consumption’ of intangible goods would leave the same quantity and quality of such goods to be consumed and enjoyed by others.

2 _{It must be noted that certain intellectual goods are denied private ownership, such as, for instance,}

everyday ideas and discoveries of facts or laws found in nature. Note that both categories are susceptible to interpretation.

9 Intellectual Property Rights and Development: A Contingent … 159

actors who had the most to gain from it. Th eir success is impressive not only in sustaining the construction of knowledge as private property but, since the

late eighteenth century, also that of property over knowledge as a right rather

than what it is in practice: a monopoly for a limited period of time guaran-

teed by the state and subject to certain limitations, with a view to promoting innovation/creativity and, thus—at least in theory—public interest overall. Th e idea of ‘intellectual property as right’ developed from the late eighteenth century onwards, intellectually thanks to the cross-pollination of property theory with general rights theory (Drahos 1996 ; Drahos and Braithwaite

2002 ). While the intellectual construction of IP as right was in full swing during the nineteenth century in Europe, two interrelated and important trends were simultaneously taking place in practice: fi rstly, the lone inventor- entrepreneur model that was at the core of justifi cations for IP was eclipsed by the emergence of the large corporation model with separate R&D depart- ments and, secondly, corporations became recognised as a singular personality in law (Fisk 2003 ). Hence, the complex interplay of intellectual, legal, social, and economic changes occurring during this period in Europe and the USA made possible the conceptualisation of IP as the natural right of both indi-

viduals and companies for work created collectively by their employees. By the late nineteenth century, when the Berne Convention for the Protection of Literary and Artistic Works (on copyright) and the Paris Convention for the Protection of Industrial Property (on patents) signalled the emergence of an international IP regime, objections to ownership over intellectual goods were largely overshadowed and the language of rights had prevailed (May and Sell

2006 ). As the twentieth century began, ownership of patents, for instance, changed radically, with companies, as opposed to individuals, emerging as the largest group of patent holders.

Th e importance of framing IP as a right cannot be overstated, insofar as it naturalises control/property over knowledge that such rights give their owners and marginalises the many objections to property over intellectual goods in the fi rst place. Th is framing has had important consequences on how knowl- edge production, ownership, and diff usion have been governed and con- tested. Th e language of rights provides a particularly powerful and subtle kind of legitimacy to the institution of IP; it has the eff ect of making alternatives and challenges to it appear rather unthinkable. Th is idea of IP as rights has taken hold of the collective imagination to such a degree that even those who challenge the current IP arrangement in the name of development do not question it. Despite the fact that recent contests over IPRs and development are fought on a more or less clear developed– developing countries’ fault line, a rather more useful way of thinking about the main fault line in IPRs contests

160 V. Muzaka

is that between IP owners and IP users: the former a rather small minority that may or may not include inventors/creators themselves and seeks the pri- vate appropriation of knowledge/creativity, and the latter, constituting the vast majority of people in the world, seeking the dissemination of knowledge into the ‘intangible commons’ and easier access to goods with IP claims (e.g., aff ordable drugs and education material). In this conceptualisation of IP con- tests, the state occupies an ambiguous but important position: in theory, as it legitimises and underwrites IPRs, its role is to ensure that these temporary monopolies are used to benefi t the society overall, but, in practice, states have overseen—indeed, made possible—the strengthening of IPRs both in terms of deepening the rights granted to IP owners and extending IPRs to new areas of knowledge/creativity, thus facilitating the accumulation of social and economic power inherent in IPRs on the hands of private IP owners who are often large companies.

Th is historical process has obviously varied over time and place, but the overall trend is clear and has been likened to ‘the second enclosure movement’ (Boyle 2003 ). Th is ‘second enclosure movement’ became more pronounced the stronger the view of knowledge as ‘the new capital’ became, especially with the rise of ‘the knowledge economy’ from the 1970s onwards. With knowledge- and information-based sectors constituting not only the most important share of the economic make-up of key advanced economies from that point onwards but also appearing to hold the key to continued growth in the future, how this ‘new capital’ was to be managed became an important issue to these countries, and to those aspiring towards their levels of economic development. Th is is the important point in time when contests over IPRs— determining how this ‘new capital’ is created, appropriated and protected— became more visible globally, culminating with the negotiation and coming into force of the TRIPs Agreement (Trade-related Aspects of Intellectual Property Rights) at the World Trade Organization (WTO) in 1994. Th is is not to say that TRIPS resolved these contests—on the contrary, it made them even more obvious and acute—but rather that it set in motion for the fi rst time in history a global IPRs regime that, despite the language used to legiti- mise it, was driven by and is primarily concerned with protecting and enforc- ing globally the IP claims of a limited group of business actors, namely, large entertainment and high-tech business actors in the USA, Europe, and Japan (Drahos and Braithwaite 2002 ; Matthews 2002 ; Sell 2003 ).

Given that the manner in which IPRs are governed impinges upon a large set of issues that include, but are not limited to, economic ones—for example, health, education, protection of biodiversity, and human rights—and that the new global IP regime governs IPRs largely as a commercial issue, it should

9 Intellectual Property Rights and Development: A Contingent … 161

not be surprising that contests post-TRIPS have become more pronounced. Indeed, what characterises most of the political confl icts unfolding in various global governance fora since the conclusion of the TRIPS agreement is a per- sistent concern that the current maximalist, ‘one-size-fi ts-all’ approach to IP undermines the achievement of a number of other public goals, most notably access to aff ordable medicines, education material, and the protection of bio- diversity. Th e relation between IPRs and access to aff ordable medicines, for instance, was bitterly contested in the late 1990s and early 2000s; the 2001 WTO Doha Declaration on TRIPS and Public Health was one of the main outcomes of these contests, but many governments and patients continue to face the problematic aspects of this relationship (primarily that of high drug prices) which is why political confl icts in this area have not subsided. In this contested post-TRIPS’ terrain, a seemingly more comprehensive demand was made by a number of developing countries at the World Intellectual Property Organization (WIPO) nearly 10 years after TRIPS was concluded that aimed not to address a specifi c aspect of IPRs, but rather to make the entire IP regime subservient to development, broadly understood. Th is was the WIPO Development Agenda launched in 2004 and offi cially still ongo- ing at the time of writing. Having briefl y laid out why IPRs are inherently political, the next section illustrates some aspects of the historically contested relationship between IP and development.