Global Ruling
Intellectual Property and Development in the
United Nations Knowledge Economy
Ondina Fachel Leal
Rebeca Hennemann Vergara de Souza
Fabrício Solagna
Abstract
This paper firstly provides an ethnographic account of the dynamic of events
in Geneva in 2004, when meetings of various multilateral agencies and
global civil society organizations were held simultaneously to discuss the
proposal to include the Development Agenda as a key element of intellectual
property rights (IPR), seeking to insert some public policy aspects into the
existing legal frameworks on IPR. Secondly we describe the historical context
for the emergence of the intellectual property system as global legislation,
explaining how it came into being and the ways in which it intertwines with
international trade, examining the extent of its impact and its interfaces
with various domains of social life, including culture and knowledge.
Finally, based on interviews, documents and minutes from international
agency meetings, we reconstruct the three-year process of negotiating
the Development Agenda at the World Intellectual Property Organization
(WIPO), describing the role of its main actors. Since Brazil, a member state of
the organization, assumed a lead role in promoting the Agenda, we examine
the disputes that occurred during this process as political actors veered back
and forth in their support for the international system to protect and enforce
intellectual property rights, and the tensions generated as IPRs become barriers to the trade and development of developing nations.
Keywords: trade regulation; global policy; WTO; Intellectual Property
Resumo
Este artigo, em primeiro lugar, relata em uma perspectiva etnográfica a
dinâmica de eventos ocorridos em Genebra em 2004, encontros de agências
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multilaterais e da sociedade civil global que ocorreram simultaneamente,
com o objetivo de discutir uma proposta de inclusão de uma pauta de
desenvolvimento em relação ao regime de propriedade intelectual, em uma
tentativa de contemplar alguns aspectos de políticas públicas na legislação
vigente de propriedade intelectual. Em segundo lugar, em uma perspectiva
histórica, apresentamos o contexto da criação do regime de propriedade
intelectual como uma legislação global, indicando como este se constitui e se
vincula ao comercio internacional, sua extensão e interfaces com tudo aquilo
que passa a regular, inclusive o conhecimento e cultura. Por último, a partir
de dados advindos de entrevistas, documentos e atas de reuniões de agencias
internacionais, retomamos o processo de negociação, que teve a duração de
três anos, da Agenda de Desenvolvimento junto à Organização Mundial da
Propriedade Intelectual (OMPI), descrevendo o papel dos autores principais
neste processo. Como o Brasil, país-membro da organização, assumiu uma
posição de liderança propondo a Agenda, nós abordamos as disputas neste
processo e a oscilação de atores políticos entre apoiar o sistema internacional
de proteção de propriedade intelectual e suas tensões, à medida que esta
legislação se transforma em barreiras ao comércio e ao desenvolvimento de
países em desenvolvimento.
Palavras chaves: OMC; WIPO; Desenvolvimento; Política Global; Propriedade
Intelectual
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Global Ruling
Intellectual Property and Development in the
United Nations Knowledge Economy
Ondina Fachel Leal
Rebeca Hennemann Vergara de Souza
Fabrício Solagna
We need to anthropologize the West: show how exotic its constitution of reality
has been; emphasize those domains most taken for granted as universal (this
includes epistemology and economics); make them seem as historically peculiar as possible; show how their claims to truth are linked to social practices and
have hence become effective forces in the social world. (Rabinow 1996: 36)
Introduction
Over recent decades the notion of Intellectual Property has become indelibly
linked to a legal regime responsible for implementing, regulating and scaling
up intellectual property rights at global level: the Trade-Related Aspects of
Intellectual Property Rights (TRIPS) Agreement administered by the World
Trade Organization (WTO). It is in this context that the domain of what we
call Intellectual Property has expanded and become redefined at global scale,
subjecting new technologies and cultural productions to hegemonic property
laws and market structures.
An Anthropology of the world economic system must inevitably address
the legal frameworks that regulate the production of goods on the global
market, as well as the production of ideas and knowledge, insofar as these too
have been transformed into goods. The TRIPS Agreement has imposed a reorganization of the relations of production and trade at global level. Moreover
it has induced a radical change within and between nations that produce
science and technology and those that do not, but nevertheless require them.
Since the agencies responsible for regulating global trade, which includes
intellectual property law, form part of the United Nations system, one of the
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most controversial topics when it comes to intellectual property issues have
been the relations between Intellectual Property Rights (IPRs) and development. The main argument is that TRIPS-related patent laws and practices
work against the interests of developing countries and need to be reformed.
The paper is divided into three sections. In the first we provide an
ethnographic account of the events that took place in Geneva, Switzerland,
during the months of September and October 2004, when a proposal for the
establishment of a Development Agenda was first submitted to the World
Intellectual Property Organization (WIPO) 2004 General Assembly sessions.
Reflecting the typical dynamic of these global assemblies of nation states,
the meeting took place in parallel with other events: meetings of national
and regional member state delegations, meetings of experts from specialized
international agencies, and a wide-range of global civil society conferences
and summits, all held simultaneously in Geneva. The Development Agenda
proposed by Brazil, as a WIPO member state, emerged in direct response to
the intellectual property legislation and sought to establish various public
policy aspects as an integral part of the IPR framework.
In the second section of the work, we present the context of the global
intellectual property regime, examining how it formed and became intertwined with international trade, as well as the range of its impact, indicating
its interfaces with diverse areas of social life, including knowledge production and culture.
In the final section of the article – which is based on data from interviews, documents and the minutes of multilateral agency meetings – we shift
back to the main topic of our study, focusing our attention on the conclusion
to the negotiation process for the WIPO Development Agenda in 2007, and
describing the role of the main actors, namely the member states of the
United Nations organizations. As Brazil assumed a lead role in proposing the
Agenda in 2004, we examine the disputes that occurred during the construction of this process as the political actors oscillated back and forth in their
support for the international system designed to protect and enforce intellectual property rights and the tensions generated as these rights themselves
became seen as barriers to the trade and development of developing nations.
We followed the three-year negotiation process as direct observers
from October 2004, when the proposal for the Development Agenda was
first presented at the WIPO General Assembly, to October 2007, when the
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same Assembly finally adopted the consolidated Agenda unanimously. Our
research included observation of events, interviewing key people, and collecting and analyzing the rich documentation available through the virtual
libraries hosted on international agency websites. Needless to say, we take this
production of discourses about intellectual property and development by this
law-making agency not as a political breakthrough, but rather as an important moment in the reorganization of country alignments and the production
of new realities within the global order. As Escobar (1995: 46) wrote concerning another context: “The invention of development necessarily involved
the creation of an institutional field from which discourses are produced,
recorded, stabilized, modified and put into circulation.” Escobar’s argument is that the development discourse creates the Third World as the other
to be developed by the West. In the case analyzed here, though, we address
the clash between two global discourses and their different mandates and
constituencies: one about intellectual property, where ideas, knowledge and
imagination are re-envisaged as privately-owned commodities to be commercialized within the global market; the other about development, rephrased in
terms of public wealth and the right to access knowledge and technology.
The world in Geneva
The first proposal for the establishment of a WIPO Development Agenda was
submitted by Argentina and Brazil at the 2004 WIPO General Assembly with
the support of twelve other developing countries. This group of member states,
coordinated by Brazil and naming itself the Group of Friends of Development,
comprised South Africa, Bolivia, Cuba, Egypt, Ecuador, Iran, Peru, Kenya, the
Dominican Republic, Sierra Leone, Tanzania, Uruguay and Venezuela. In order
to reconstruct what we identify as a turning point in the dynamic – or rather
the discourse – between North and South (or to use the language of the multilateral agencies: between developed and developing countries), we explore
some of the tensions between these actors and power groups and the overarching bureaucratic framework of multilateral organizations. It is our view that –
independent of the actual outcomes of the Agenda as a set of reform proposals,
such as safeguarding public interest flexibilities in the international system of
intellectual property rights and working towards more equitable trading conditions – the three-year process involved in negotiating the Agenda provides
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us with a unique opportunity to observe the multiple roles and asymmetrical
relationships of different actors within a scenario of supranational law-making
agencies involved in producing globalization.
Globalization means that decisions of interest to a particular collectivity
are no longer taken either locally or nationally, but internationally by global
supranational entities – the multilateral agencies – that overlay localized
actors. On one hand, this has led to the emergence of a new sphere of social
life located above all of us – including the nation state – and belonging to a
broader systemic order capable of imposing its own interests through law.
On the other, it demands that local actors actively or passively adhere to
this new legal regime. In the new global governance of production, which
includes (especially) the ownership of ideas, the global and the local are
reconfigured by a political economy of knowledge production. The context
itself produces a narrative on the meanings of development, West, North
and South, global and local. As various anthropologists – Abélès (2008),
Appadurai (2001), Fischer (2011), among others – have pointed out, contemporary concerns in anthropology about translating and understanding cultural practices have abandoned traditional objects. Indeed, anthropological
inquiry has shifted its attention to the global arena of policy making and to
the conditions through which such political discourses or rituals of truth, to
borrow Foucault’s terminology, are produced.
By multilateral agencies we mean entities linked to the United Nations
(UN) system, including the World Intellectual Property Organization (WIPO),
the World Trade Organization (WTO), the World Health Organization (WHO),
the Office of the United Nations High Commissioner for Human Rights
(OHCHR), the United Nations Joint Programme on HIV/AIDS (UNAIDS)
and the Global Fund, to mention just a few among the similarly structured
entities, specialized agencies and affiliated organizations headquartered in
Geneva, Switzerland.
Our focus here is WIPO and its 2004 General Assembly, composed of 186
member states, which follows a UN representational governance system of
one country, one vote. In any of these multilateral organizations, holding an
Assembly, their main deliberative policy-making forum, generates an important dynamic involving other events and meetings occurring simultaneous
to the main event. Although long speeches and voting decisions take place
on the main floor of the Assembly, a building and room guarded with the
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highest security, everything else happens away from this space. Although the
international rituals unfolding on the main stage are indeed very important,
much of the decision-making process, disputes and consensus building very
clearly unfolds elsewhere. Multiple formal and informal meetings are held in
parallel to the main event: besides the sessions between member states and
clusters of countries, these include celebrations, protests, media statements,
sittings and civil society gatherings, all held simultaneously in the central
space and its surroundings.
During these periods when the main agencies hold their assemblies,
Geneva becomes a plethora of political rituals and the whole town is taken
over by the thrill and expectation of the event, expressed in diverse languages
and accents. Briefly, given the scope of this paper, we shall explore three
scenes of events held in Geneva during September and October 2004: an international conference of civil society organizations called ‘The Future of the
WIPO’; a meeting held to discuss intellectual property and public health at
one of the Geneva-based intergovernmental technical agencies; and the main
sessions of the WIPO General Assembly.
Prior to the WIPO Assembly meeting, a two-day meeting called ‘The
Future of the WIPO’ was organized by Consumers International (TACD)1,
an international NGO. The meeting brought together stakeholders from
academia, NGOs, government officials, IP experts and well-known scientists,
including Nobel Prize laureates, and as a final document produced the
‘Geneva Declaration on the Future of WIPO,’ signed by hundreds of individuals and organizations.
This meeting took place in a venue across the street from the WIPO headquarters. A few members of the WIPO secretariat were also present at the civil
society forum, invited to discuss “the future of the WIPO.” They gave short
talks, stressing that the primary mission of WIPO, as a technical agency and
law-making body functioning as the “leading global forum for the promotion of intellectual property as a force for innovation and creativity,” was
to deliver capacity-building programs to help developing countries benefit
from intellectual property legislation. The position of the WIPO officials was
highly defensive given that the overall tone of the meeting – reiterated in all
1
TACD Transatlantic Consumers Dialogue is a forum of European and North American consumer
organizations, run by Consumers International, with the aim of developing policy recommendations to foster
consumer interest in policy making (see www.tacd.org).
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its sessions – was critical of the legitimacy of WIPO’s mandate as a UN agency.
The argument was that WIPO only became part of United Nations system
in 1974, and has sided with intellectual property rights, its original function
prior to becoming a multilateral agency, to the exclusion of human rights.
To a strong round of applause, the representative from one intergovernmental organization of developing countries asserted: “WIPO does not
appear to act according to the UN mandate, but according to its original
mission to foster IP,” a reference to the fact that before obtaining its current
agency status, WIPO had been the Office for the Protection of Industrial
Property, a body established to administer services for the Paris and Berne
Conventions on industrial property and copyright. “The king is naked!”
someone in the audience joked, loud enough to be heard, labelling the fact an
“inconvenient truth.” The accusation was that WIPO cares more for the rights
of intellectual property owners than those of users, especially those in developing countries. The collective demand was for WIPO to “change its culture
and direction.” It should be working in the public interest, giving emphasis
to free and open source software, public domain assets like the human
genome, and patent exceptions to allow access to medicines for the poor.
Lectures were given by leading figures from various civil society movements like Richard Stallman, founder of the Free Software Movement, John
Sulston and Tim Hubbard, leaders of the Human Genome Project, and Helen
‘t Hoen from the Médecins Sans Frontières (MSF) Campaign for Access to
Essential Medicines. The conferences, discussions, documents and press
releases all criticized WIPO’s course of action in protecting patents, stressing that WIPO practices at global level had led to unequal access to vital
medicines and health, anti-competitive economic practices, concentration
of ownership, technological measures such as digital rights management
(DRM), and the hijacking of the public domain by private interests. Stallman
asserted that IPRs restrict the public’s access to information and essential
goods, and should not be termed ‘rights.’ Sir John Sulston, the Nobel laureate
scientist, claimed that WIPO has pursued the agenda of those who “perverted
the course of scientific discovery, instead its mission should be everyone’s
interest.” He spoke against the present practices of gene patenting as an
abuse, given that gene sequences are discoveries, not inventions.
The widespread claim against WIPO gradually became a social effervescence, in Durkheim’s sense, appearing on signs held by activists and taking
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over discussions, rooms, blogs, buses and bus stops, post-conference gatherings, restaurants and café conversations. Manifesto statements quickly
circulated, echoing MSF’s statement: “We cannot accept a world in which
the fruits of innovation can only be enjoyed by the wealthy.” Meanwhile, a
prominent group of people was drafting the Geneva Declaration, which criticized WIPO for embracing “a culture of creating and expanding monopoly
privileges, often without regard to consequences,” and called for the organization to shift its focus from intellectual property as an end in and of itself,
to a means of benefiting humanity. The Declaration advocated a moratorium
on the practice of harmonizing intellectual property legislation throughout
the developing world with the laws currently existing in the United States
and Europe.
The final document of the meeting held to debate the future of WIPO
conveyed the urgent need for a change in WIPO’s approach, expressed in
strong language:
Humanity stands at a crossroads – a fork in our moral code and a test of
our ability to adapt and grow. Will we evaluate, learn and profit from the
best of these new ideas and opportunities, or will we respond to the most
unimaginative pleas to suppress all of this in favor of intellectually weak,
ideologically rigid, and sometimes brutally unfair and inefficient policies?
Much will depend upon the future direction of the World Intellectual Property
Organization (WIPO), a global body setting standards that regulate the production, distribution and use of knowledge. (Geneva Declaration on the Future of
WIPO 2004)
As at other events involving so-called global civil society, ‘global’ here
clearly stands for Northern civil society, that is, a geopolitical configuration dominated by European and North American countries. The cognitive
map of international politics divides the planet into North and South as an
updated and politically correct version of the old division between First and
Third Worlds. In terms of the institutional language used by multilateral
agencies, however, the vocabulary still revolves around the Developed and
Developing Worlds. The latter group, the Developing World, includes the
LDCs, shorthand for Least Developed Countries, a designation apparently
deemed unpronounceable in multilateral agency speeches and documents,
cited only by the acronym.
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At the same time as the WIPO Assembly, another event was taking place
in another corner of Geneva to discuss the price of new drugs to combat
HIV-AIDS, a cost that patent protection had made completely inaccessible for
the majority of people in the world with the illness. On the agenda was the
demand for access to healthcare and life-saving medications to be supported
by public policies through a human rights approach. This was a meeting of
experts working to define strategies capable of reversing a global epidemic.
Conversations about what was happening at the WIPO Assembly took place
at the sides, but never on the main floor of the Conference. Apparently there
was no dialogue between the two agencies on the topic of HIV-AIDS drugs:
each institution remained enclosed in its own set of norms, ruling bodies run
by technical experts, office hierarchies and bureaucratic structures.
Summits and meetings in this world of multilateral agencies bring
together an array of different nationalities and multidisciplinary academic
consultancies. Ethnic, linguistic and gender diversity are highly cherished.
Each meeting is a colorful and exotic display of diversity, or an illusion of
it, that celebrates difference in a sea of swirl of turbans, saris, tunics and
Western executive clothing. Each person bears a national identity in his or her
own brand of expertise, garments, language, accent or emblematic embodied
attitudes corporeality – reflecting, in this combination of othernesses, the
intricate power games of the multilateral world where borders are symbolically and temporarily suspended for the time span of the sessions.
We return now to our main stage in this global policy-making negotiation process, the WIPO 2004 Assembly and the session held on the 30th
of September. As we remarked above, Brazil co-sponsored a proposal to
establish a Development Agenda for WIPO. In the dynamic of the UN system
Assemblies, the decision-making process is based on the principle of one
country, one vote. Each speaker takes the floor ‘on behalf of ’ a country or
groups of countries, such as “The Delegation of Egypt, speaking on behalf
of the African group” or “The Delegation of Benin, speaking on behalf of
the LDCs (Least Developed Countries).” Countries may be clustered by geographic location, or grouped under an umbrella political identity like “Least
Developed Countries” or “Islamic Nations.” As we explore later in relation
to the Agenda proposal, Brazil would speak on behalf of the newly created
“Group of Friends of Development.” Hence the identities of the countries and
the organization taxonomies are fluid and comprise important rhetorical
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devices. Powerful political strategies in this arena include speakers shifting
from one identity label to another during their discourse, which requires
political skill and the ability to strategize efficiently as an interest group. In
earlier Assembly sessions addressing other issues, Brazil’s delegation had
already made profuse reference to its participation in the “Group of Friends
of the Chair.” The rhetorical parallel drawn with the creation of a “Group of
Friends of Development,” critical of the course that WIPO was taking, cannot
be overlooked in this discursive dispute.
As part of the dynamic of the Assembly, reference was seldom if ever
made to someone’s personal name. Only member states have seats at the
conclave, meaning that individuals personify countries in a ritualized form
to such a point that is extremely hard to discover the speaker’s actual name.
Neither is this information made readily available in the assembly reports.
The country is the actor delivering the statements. Even backstage, people
can be overheard referring directly to one another as a country or a country
delegation. In a strongly bureaucratized transnational organization, the fact
that the nation state mandate eclipses personhood is very much part of the
symbolic repertoire of this unique form of institution, and also a symbolic
indicator of its capacity to operate effectively in a wholly impersonal mode.
This dynamic of country decision-making power enables so-called global
civil society to build links and strong alliances with country representatives, delegates or permanent mission representations in Geneva’s forums
or elsewhere. In this context, the interplay between a Northern NGO and a
Southern country and the establishment of links are a recurrent and legitimized interest-oriented strategy. Alliances and networking among groups
through formal or informal channels are part of the established practices,
along with negotiating positions and votes when key issues are being debated
on the main decision-making floor. The same dynamic occurs in relation to
transnational companies and other non-governmental bodies representing
diverse interests in the global market. The boundaries between lobbying and
advocacy are blurred: political opportunity is perceived as an asset, or to put
it in Bourdieu’s terms, as political capital. The practices of power groups are
recognized as a legitimate part of the game, a grammar of the multilateral
organization culture.
Since its first session on September 27th when Argentina and Brazil
included ‘Item 12’ as one of the items to be discussed on the Assembly agenda
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(filed on September 22nd), a tension was palpable in the corridors: we could
hear the words ‘Item 12’ spoken in small group conversations. It was clearly
a surprise for the institution as a whole: it was as though a consensus had
been shattered. At this early stage, Item 12 was merely proposing inclusion
of a discussion of Development on the WIPO agenda for further debate. As
a matter of protocol, not accepting inclusion of Item 12 could be seen as a
mistake in the one country, one vote environment.
The Brazilian delegate’s speech at the Assembly began: “I take the floor on
behalf of Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Iran,
Kenya, Sierra Leone, South Africa, Tanzania and Venezuela…” This discursive
strategy of presenting a proposal as the work of more than one country is
used wherever possible, as is listing the partner countries in alphabetical
order: as well as demonstrating good diplomacy, it is another example of
depersonalization, used even when one country assumes the role of the main
actor. It is hard to assess whether in the context of talking about 12 countries
(from a total of 186 member states) it was indeed a symbolic asset. In this case,
the retort overheard in the Assembly’s halls was: “Well, those countries!” and
“Do you remember the movie The Good, the Bad and the Ugly?” in a teasing
reference to the epic Italian spaghetti western. Spoiled country identities
are always the subject of jokes, also used teasingly as a label manipulated
by national delegations themselves – for example, to impersonate countries
closer to ‘The Axis of Evil,’ a sarcastic reference to Bush’s famous speech, a
joke only made away from the main halls, and certainly not in English.
The statement presented by the Brazilian delegation at the 2004 Assembly
refers to the position of civil society, directly citing the document “The
Geneva Declaration on the Future of WIPO” launched in the parallel civil
society forum. The latter argued for the incorporation of the development
dimension into WIPO’s program, specifying four issues: WIPO’s mandate and
governance; norm-setting; technical cooperation; and technology transfer
to developing countries. Development was the main word, but what was at
stake was WIPO’s position as a UN agency, as the delegate put it in an almost
patronizing, if not daring, tone:
Because Development is a shared commitment of the international community,
incorporating the ‘development dimension’ in all WIPO activities should be
a major concern for us all. […] This debate is necessary for the sake of WIPO,
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for its legitimacy and credibility as an institution. We want to help it cater to
the interests and concerns of all Member States and all relevant stakeholders,
including, in particular, civil society. (Statement of the Delegation of Brazil,
WIPO Assembly, Geneva, September 30, 2004)
Ruling global trade: the intellectual property regime
The term Intellectual Property designates a broad range of private, monopolistic rights. Two dimensions define Intellectual Property in its contemporary acceptation of rights and meanings: rights to industrial property,
which refers to inventions (patents, trademarks, and industrial design) and
geographical indications; and copyright, which includes artistic and literary
production in all media. The contemporary intellectual property regime
impinges directly and radically upon everything we call culture, the classic
object of anthropological work.
The global intellectual property regime has implications for all areas of
social life. The text of the TRIPS Agreement sets out its raison d’être and scope:
Ideas and knowledge are an increasingly important part of trade. Most of the
value of new medicines and other high technology products lies in the amount
of invention, innovation, research, design and testing involved. Films, music
recordings, books, computer software and on-line services are bought and sold
because of the information and creativity they contain, not usually because of
the plastic, metal or paper used to make them. Many products that used to be
traded as low-technology goods or commodities now contain a higher proportion of invention and design in their value – for example brandnamed clothing
or new varieties of plants. […] The WTO’s TRIPS Agreement is an attempt to
narrow the gaps in the way these rights are protected around the world, and to
bring them under common international rules. It establishes minimum levels
of protection that each government has to give to the intellectual property of
fellow WTO members. (Agreement, 1994; World Trade Organization, 2012)
Today the term Intellectual Property refers to this new global regime, an
umbrella system designed to protect the rights of patent holders (whether
corporations or individuals). The processes through which these rights have
been redefined have engendered new forms of social coercion and control,
including private monopolies on genetic resources and biodiversity, the folk,
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the local, and social spaces. In other words, the privatization of collective and
cultural resources, as well as inventions of public interest, emerges as a powerful strategy for controlling global flows of knowledge and information, and,
as a consequence, access to intangible cultural goods and new technologies.2
As many critics have pointed out, intellectual property is not just a
regulatory structure defining the right to exploit knowledge and circumscribe creative work, but also a discourse legitimizing the power structures
that found the emerging global knowledge economy. For Bourdieu (1998),
the legal field is a site of competition over the monopoly of the right to tell
what is right. He points to the fact that supposedly universal practices and
discourses are self-referred, or legitimized, within the same legal field that
produces them. The social space of producing international law also defines
those actors who are allowed into the game, and those who are excluded:
Power is rapidly moving towards sharper hierarchies in the international division of knowledge ownership – ownership of the raw materials, the production
cost of which increasingly determines the relative price of goods and services
that are exchanged internationally. From now on, copyrights, trademarks and
trade secrets will be the actual subject of international negotiations. (Cocco
1999: 275)
The global knowledge economy, centered on notions of immaterial labor,
human capital and intellectual property, establishes a new international division of competences between centers and peripheries, North and South, rich
and poor, holders of technology and suppliers of raw materials: “This means
that the position of each country will increasingly depend on its capacity
to capitalize knowledge, on the possibility of converting knowledge costs
into relative prices” (Cocco 1999: 275). Moreover, although this discussion
is beyond our present scope, it is important to recall that the background
for such a legal regime involves a philosophical conception of intellectual
property that links authorship to ownership. This is a matter of significant
debate in anthropology. As Strathern (1996) has put it, property is the legal
connection between a being and an entity, which is regarded as the extension
of a subject who, in the case of intellectual property, is conceived according
2
Part of the analysis of the historical context of IPRs presented in this section has been addressed in Leal
and Souza 2012. See also Leal, Deitos and Souza 2010 and Souza 2009 for further discussion of this topic.
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to Western canons of the individual (rather than collective) subject.
We can identify three broad sets of knowledge on which intellectual
property rights have impinged. These not only configure new markets, they
also restructure the daily lives of social actors in relation to these objects:
access to information and knowledge; traditional knowledge and intangible
cultural heritage; and access to essential public health assets.
The shaping of the global intellectual property regime unfolds within
this scenario of deep technical changes and the dominance of corporations
that attempt to impose their agendas on everyone else, including those issues
that directly affect public interest:
The international extension of patenting reflects both the geographical range
of the operation of a company and the importance it attributes to the protection of its monopolistic positions, the rentier extraction of royalties, and
the power to sterilize innovation if it so wishes. Large US corporate groups
have always attributed paramount importance to this protection. They were
the ones to impose the adoption of TRIPS on GATT at the end of the Uruguay
Round. (Chesnais 1996: 164)
This form of domination, in which knowledge is privately appropriated
by corporations, is based on an assumed scarcity of intangible goods and
resources, including information, previously understood to be part of the
commons. Drahos and Braithwaite (2004) refer to this as a logic of knowledge
hegemony, which finds its fullest expression in the current global intellectual
property regime. This regime may be understood as a set of institutional,
juridical, philosophical and social strategies that enable the exclusive control
of resources of virtually any kind. Anthropology, which takes the question
of nature/culture as a central theoretical axis, becomes a spectator to how
nature or life – to use the discursive terms deployed by intellectual property
regulations – becomes culture and, as such, comes to entail authorship or
becomes liable to commodification and thus patenting. Fischer (2009: 85-6)
noted that “biology has been transformed from a republic of science in which
the flow of information, at least in academic settings, was largely free to one
in which the biologist always tries to patent before publishing and much
data is closely held and no longer freely available.” This was exactly the same
point made by the Nobel laureate geneticist at the Geneva Conference in
2004, narrated in the first part of this paper.
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Intellectual property rights, whether copyright or industrial, are
monopolistic strategies designed to secure control over certain objects by
certain agents, especially corporations. They are a “dynamic instrument for
accessing and controlling markets, to the benefit of industrial companies”
that have “enough capital to direct the flow of research and invest in markets
created by products and processes, the commercialization of which was
made possible by such research” (Ost 1999:81).3
What is known today as the global intellectual property regime has its
origins in the post-war period when multilateral governance strategies first
emerged. From the second half of the nineteenth century until the end of
the Second World War, international directives on IPRs were regulated in
compliance with the Berne and Paris Conventions.4 The 1883 Paris Convention
responded to the interest of technology-supplying5 countries in “facilitating
technology flows across contracting nations, thus creating common requirements for granting patents and guaranteeing national coverage for foreigners” (Gandelman 2004: 101). The 1886 Berne Convention, in turn, covered the
protection of literary and artistic works. According to Gandelman (2004), the
latter emerged from the concern of European countries to guarantee protection for their authors in foreign countries. Neither convention imposed
the standardization of national laws, or the mandatory and unconditional
adherence to minimal standards. Unions were also open to the entry and exit
of their members without any obligation to adhere to subsidiary agreements.
In 1893, the two conventions were unified under the International Unified
Bureau for Intellectual Property Protection (BIRPI), whose headquarters were
located in Berne, Switzerland, until 1960.
According to Halbert (2006), during the 1950s the power struggle over the
regulation of intellectual property rights was manifested in the coexistence
of various organizations arbitrating on similar issues. In this context, BIRPI
3
Referring to the production of science and knowledge in Brazil, Carlotto and Ortelado (2010) argue for a
specifically peripheral agenda focused on the relationship between science and the market, and looking more
closely at editorial activity in order to understand both the economic effects of the products of scientific activity,
and the effects of the economy over scientific work.
4
Between the late nineteenth and early twentieth century a series of technical conventions or conferences
were constituted to allow governments to exploit common interests without the obligation to adhere to a specific
regime. This was the case of the 1865 International Telegraphic Union, the 1874 General Postal Union, and the 1875
International Weights and Measures Office (Almeida 2004).
5
Although it was not primarily a supplier of technology, Brazil was one of the ten original subscribers to the
Convention.
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progressively engaged in working relations with various multilateral agencies – specifically, those belonging to the United Nations (UN) system. This
eventually resulted in the incorporation of the World Intellectual Property
Organization (WIPO) into the UN system during the 1970s, an entity that had
earlier replaced the Patent Office, BIRPI, in 1967. However, WIPO’s functions
were merely administrative and regulatory: it lacked the powers to impose
adherence to multilateral norms on UN member countries.
This was not the only arena where disputes on the definition of IPRs
unfolded. Ever since the creation of the General Agreement on Tariffs and
Trade (GATT)6 in 1947, the United States had pushed for the inclusion of IPRs
in the Agreement’s remit. On this point it faced opposition from several
countries, including Brazil.
During the 1980s, the United States established an explicit policy for
linking intellectual property rights to trade, both multilaterally through
GATT and bilaterally by means of sanctions imposed through Section
301.7 The question of intellectual property was progressively included in
the Multilateral Trade System (MTS)8 as the WIPO gradually lost ground
to GATT. Compared to the WIPO, GATT offered three advantages (for the
United States): it established higher protection standards; it applied commercial sanctions to states that failed to adapt to the established protection
standards; and it limited the leverage of developing countries in defining
the GATT agenda, given their relatively weak position in international trade
(Correa and Musungu 2002).
After a round of failed negotiations on GATT, the Uruguay Round was
launched in 1986. It ended in 1994 with the creation of the World Trade
Organization (WTO). Despite strong opposition from developing countries,
IPRs were incorporated to the organization by means of the Trade-Related
6
GATT was the outcome of negotiations led by the United States at the United Nations over the reduction
of barriers to international trade.
7
Section 301 of the U.S. 1974 Trade and Tariffs Law authorizes the government to unilaterally adopt coercive
(tariff and non-tariff ) measures against countries whose practices are considered unfair to U.S. commercial
interests. In the following decade, this Law was amended to include, among other changes, the application
of Section 301 to intellectual property. During the same period, the United States framed Brazil since the
legislation then in force did not cover patenting of pharmaceutics – thus unleashing what became known as the
pharmaceutical patents dispute.
8
“The MTS includes the ensemble of international agreements signed by states from 1947 onwards to regulate
international trade” (Nasser 2003: 33). These agreements were consolidated with the creation of the World Trade
Organization (WTO), together with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement.
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Aspects of Intellectual Property Rights (TRIPS) Agreement.9
As the TRIPS Agreement has become incorporated into the multilateral
trading system, considerable concern has been raised over its globally pervasive role. The Agreement represented a radical imbrication of intellectual
property rights and trade, and thus the subjection of IPRs to market demands
and the conversion of all tangible and intangible objects into commodities.
The advent of TRIPS in 1994, together with the Word Trade Organization
(WTO), a multilateral agency with the power to impose global sanctions,
marked the birth of an unprecedented era of commoditization, mercantilization and globalization.
This new, late twentieth/early twenty-first century expansionism in the
intellectual property agenda has mostly been affected through bilateral and
regional agreements that became known as TRIPS-plus. The intellectual
property regime established by both the TRIPS Agreement and the series of
agreements on IPRs of a TRIPS-plus kind globally regulates intangible goods,
including: traditional knowledge; agriculture (whether through technological packages, including intellectual property protection clauses, or through
the patenting of seeds and cultivars); health-related products, affecting the
price of pharmaceuticals and essential inputs, for instance, as well as the
direction taken by research into new drugs; education, through copyrights
and their impact on the price of books and even their availability; and information and communication, through the executive regulation of their flows.
The current legal framework enforcing Intellectual Property Rights has
shaped economic development, trade and market access. IPRs have becomes
vectors in a profound shift in contemporary capitalism, inasmuch as the
question of access to goods, products and services has become fundamental
to understanding the dynamics of power relations at diverse levels (Rifktin
2000). These rights have also determined ownership and access to essential
goods such as the pharmaceuticals necessary to contain endemics and epidemics, and have controlled the flux and content of information and creativity, not only by dictating what forms of human creativity and inventiveness
are legally permitted (or not), but also by altering the ways in which they
circulate and become expressed in societies.
The TRIPS-plus mechanisms reflect a new phase in the history of
9
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For the TRIPS Agreement text, see Agreement 1994, World Trade Organization 2012.
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corporative monopolies, characterized by an imperative to extend control
over markets. As Silva (2009) argues, just as the patent system’s demands,
which culminated in the TRIPS Agreement, only became materialized in
the aftermath of the consolidation of industrial parks in the pharmaceutical, electronic and entertainment sectors – and when these were ready for
massive advances into the global market, so the new pressures for broadening IPRs and TRIPS are related to the dynamics of contemporary capitalism.
A Development Agenda for WIPO
One of the most controversial topics when it comes to intellectual property
are the relations between IPRs and development. As far back as Queen Anne’s
England, privileges of invention and authorship were advocated as a way of
bolstering local commerce. When WIPO entered the UN system in the 1970s,
the good management of IPR agreements came to be linked, at least formally,
to the promotion of creative intellectual activity and technology transfer
to developing countries in order to speed up their economic, social, and
cultural development. The TRIPS Agreement also incorporated a number of
development-related issues, especially in its provisions concerning flexibilities10 and the timeline for implementation in different countries.11
During the 1990s, it became increasingly evident that lengthier deadlines
were not in themselves enough for developing countries to incorporate
technology effectively and improve local productive capacities. Moreover,
the obligations imposed by the TRIPS, even where minimal, proved to be at
the limit or beyond the possibilities in some countries, turning them into
obstacles to development. One of the solutions encountered by state and nongovernmental actors alike was to advocate for deployment of the flexibilities
already incorporated in the TRIPS Agreement as a means to secure the relative autonomy of the countries concerned, promote public interest, and press
for an IPR regime less harmful to developing and less developed countries.
Critics of the Intellectual Property regime denounced the narrow and
10
Flexibilities refer, for instance, to the right’s term (national frameworks may choose to lengthen the
protection term beyond minimal standards), the right’s scope (to extend or reduce the scope of patentable
objects), and the adoption of specific, clear rules in the education and public health sectors.
11
In articles 65 and 66, the Agreement established deadlines for adapting national legal frameworks according
to development levels: one year for developed countries; five years for developing countries; and eleven years for
less developed countries.
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mechanistic conception of development informing official discussions of
the relationships between development and intellectual property. The latter
assumed that the provision of legal security to the rights of inventors and
creators, along with strict punishment of violations, would be enough to
foster an enabling environment for technological development and industrial
activity. The economic development that was expected to ensue would, it
was argued, logically and automatically produce developmental offshoots in
sectors such as social welfare and environmental protection.12
Taking a stance against WIPO’s practices of expanding the scope and level
of intellectual property protection, the Development Agenda – sponsored
by Brazil and Argentina, and described in the first part of this article – was
first presented at the WIPO General Assembly in 2004. In a joint declaration
issued one year later, in 2005, the Agenda’s co-sponsors named themselves
the Group of Friends of Development. In 2007, when the Agenda was
finally approved at the WIPO Assembly, this group was composed of 14
member countries, including its original sponsors. It emerged in the wake
of other initiatives aimed at redefining the meaning of development as it
became coupled with IPRs, such as the Millennium Development Goals,
the Monterrey Consensus, the Johannesburg Declaration on Sustainable
Development, and the Doha Declaration on TRIPS and Public Health. The
Doha Declaration is particularly forceful in its demonstration of how IPRs
may hinder the advancement of the human development goals proposed by
the United Nations. It became increasingly accepted that, despite its universality, the application of TRIPS might produce different effects, depending
on each country’s development level, including negative impacts on social,
economic and technological development (CIPR 2002).
Besides these challenges to the assumption that the regime could, in
and of itself, promote development, two other major lines of criticism have
emerged, as we saw forcibly presented in civil society fora in Geneva in the
Fall of 2004. The first argues that, regardless of the existence of internal
12
An example of this kind of argument can be found in Sherwood (1992). The author claims that, especially for
developing countries like Brazil, IPRs are an indispensable part of the infrastructure necessary for development.
“The effective protection of intellectual property will help developing countries to move in two directions. One is
towards participation in global technology networks. The other is towards encouraging human creativity within
the national economy. The first step towards enjoying these benefits is to think of intellectual property protection
as a vital part of the country’s infrastructure. […] Intellectual property protection, an inexpensive but powerful
instrument, is available to any developing country wishing to benefit from it” (Sherwood 1992: 194-195).
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efforts in this direction, WIPO must incorporate the specific needs of
developing or least developed countries in its programs. The organization
must acknowledge “more explicitly the fact that intellectual property protection brings both benefits and costs, and further emphasize the need for IP
regimes properly adapted to the specific circumstances in developing countries” (CIPR 2002: 158). The second line of criticism suggests that the TRIPSplus Agenda, whether in its traditional (bilateral and regional) versions or in
WIPO’s recent efforts to adopt stricter criteria than TRIPS,13 poses obstacles
to further development and, as such, should not automatically be taken as a
necessary part of the system’s evolution.
A developmentalist perspective, whose discursive field includes the
Development Agenda, therefore emerged to a large extent in opposition to
the pro-IPR bias. This set of arguments stems from “a developmentalist view
on Intellectual Property, which should function as a tool for capacity-building […]” rather than being an end in itself (Jaguaribe and Brandelli 2007: 286).
The developmentalist argument was pursued along two paths simultaneously: on one hand, as a positive and proactive response to the TRIPS-plus
negotiations, both at WIPO and through bilateral pressures in free-trade
agreements; on the other, as a reaction to the way WIPO had directed negotiations by disregarding policies catering to the demands and needs of developing and least-developed countries. This double characteristic was fundamental during the Agenda negotiation process as a way of deflecting criticisms
that the Brazilian Delegation was opposed to IPRs per se or WIPO itself.
In general terms, the developmentalist argument within IPR negotiations highlights the need to balance the benefits and costs of the intellectual
property system to ensure the viability of the system itself (Jaguaribe and
Brandelli 2007). From this perspective, intellectual property should be a
means to development, attuned to each country’s policies for industry and
technology.
This recognition of the need to adapt IPRs stemmed largely from an
assessment of the experiences of developing and least-developed countries
in the aftermath of the Uruguay Round, when the TRIPS Agreement was
13
Here we refer to the Digital and Patent agendas (Jaguaribe and Brandelli 2007). The Patent Agenda includes
the Patent Law Treaty (PLT), reform of the Patent Cooperation Treaty (PCT), and the Substantive Patent Law
Treaty (SPLT). The Digital Agenda includes the World Copyright Treaty (WCT), the World Performances and
Phonograms Treaty (WPPT) and the Protection of Broadcasting Organizations Treaty.
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brought into being. Emphasis was also given to the historical experience of
developed countries and how they had deployed IPRs differentially and flexibly during various key periods of their own techno-scientific and industrial
development. Also relevant here was the perception that the current configuration of the intellectual property system has failed to benefit developing
and less-developed countries in implementing policies for economic, social,
cultural and human development.
Care should be taken, however, not to take the processes involved in
constructing the Agenda as peaceful and unilinear decision-making by the
Brazilian actors involved in constructing the country’s stance. An initial
fault line can be traced to the scope of the IPRs to be included in the Agenda.
While the INPI (Instituto Nacional de Propriedade Industrial) and other
institutions working in the area of technological development emphasized
industrial property rights, those involved in civil society movements, such
as Creative Commons Brazil and the Ministry of Culture’s copyrights department, advocated the importance of allowing significant space for the interests pertaining to their fields.
On the other hand, these two discursive fields share a common
semantic field, which allowed them to collaborate in the construction of
a Development Agenda. This includes, first of all, the idea that the social
function of intellectual property is not exhausted by the availability of a
technique or the creation of products offered to the public. In order for intellectual property to effectively perform its social function, it must be widely
available to all social sectors in the form of appropriable knowledge and consumable goods (including culture, knowledge and information). This entails
shifting the basic role of IPRs from guaranteeing inalienable individual
rights to ensuring the social function of (intangible) property.
Secondly, it becomes imperative to reinstate what was, arguably, the
original balance between the monopoly rights afforded by private IPRs and
the public interest – the latter understood not only as a formal counterpart
to these rights, but also as effective form of participation in the innovation
and creativity encapsulated in the objects they protected. In this sense, the
introduction of the developmental dimension as further leverage in IPR
mechanisms is key to redressing the distortions of a system that has been
“hijacked by private interest groups” (in the words of ambassador Roberto
Jaguaribe, interviewed in 2008) and that “needs to be calibrated” (according
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to Maria Beatriz Amorim Páscoa, also in an interview given in 2008).
These concerns lead to one of the Agenda’s most controversial items: the
scope of the public domain. As a common intermediary space, in Benkler’s
sense (2007), the public domain becomes fundamental: it implies a particular
frame of governance, involving the use of resources that differ from the
current system of private property and based on the impossibility of any kind
of private appropriation.
Within the Development Agenda, public domain rules include the limitations on and exceptions to IPRs. These rules are defined by states at two
levels: via multilateral agencies, such as WIPO, through the establishment
of supranational regulations; and domestically through national public policies and regulatory bodies. In the Agenda’s various versions, the issue of the
public domain – always a sensitive topic at WIPO and in negotiations in other
multilateral and intergovernmental fora – has been the subject of oscillations
and controversies fomented by countries such as the United States.
According to the official records available and other kinds of field data,
Brazilian diplomats putting forth the country’s stances during negotiations
have been extremely careful to defuse any idea that they are advocating the
abolishment or delegitimization of the intellectual property system per se.
Among the regime’s supporters and opponents alike, there is a tacit agreement regarding its existence, legitimacy and importance: what varies is the
content and objectives attributed to it.
As we looked to show in the first part of the article, the process of building the legitimacy of the Agenda proposal involved an intense dialogue with
and support from non-governmental organizations campaigning in the
public interest, many of which were present at its launch in 2004. However it
also involved appealing to the UN itself and its founding mission, building
support among other multilateral bodies, and receiving the endorsement of
regional groups and individual countries.
The 2004 WIPO General Assembly decided to transfer the assessment
of proposals to Inter-sessional Intergovernmental meetings, which would
be responsible for preparing a report for presentation at the 2005 General
Assembly. Thereafter the tone was set for a dispute between the WIPO
Secretariat, which sought to maintain the Agenda within the existing forum,
and the Friends of Development group of countries, which began to be
referred to simply as ‘The Friends,’ who were working continually to reinvent
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its systemic and horizontal profile of governance. At that time, the Group
of Friends was developing the Agenda’s structure through four thematic
teams, whose composition would change during the negotiations until a
final version was reached. These displacements, which will not be examined
here, eventually led to four groups of propositions: the WIPO mandate and
governance; norm-setting; technical cooperation; and technology transfer
(Souza 2009).
Even though the proposal eventually presented to the 2005 General
Assembly was not approved, it did allow the balance of forces around the
dispute to be mapped, as well as an assessment of the Agenda’s most sensitive items, including those relating to the public domain and alternative
modalities of copyright licensing. Over 130 public-interest NGOs “from
all corners of the globe” signed a statement in support of the Friends of
Development proposal. The 2005 Assembly, following a dynamic similar to
the 2004 Assembly, was closely observed by non-governmental and public
interest organizations and, outside the WIPO headquarters, Geneva once
again became a political forum for diverse power groups. In the WIPO session
held on September 29th 2005, Brazil and an impressive number of developing and least developed countries took turns on the floor to stress “the need
to adopt appropriate measures to overcome the technological gap between
developed and developing countries and arrangements that would facilitate
technology transfer,” along with other points of the Agenda. After a long
procession of country member speakers delivered their messages, the United
States Delegation merely issued a laconic statement in the opposite direction,
expressing full support for “WIPO’s work in promoting IP worldwide, as
strong IP stimulates creativity and local investments.” An important public
interest organization issued a critical commentary that circulated widely in
the international media and social media networks:
The United States government and the European Commission should
abandon efforts to use WIPO as an instrument of uncritically expanding
intellectual property protection and the protection of their export industries.
They should support a new dialogue within WIPO; a dialogue consistent
with modern intellectual discourse about the reform of intellectual property
regimes in order to promote the public interest, North and South. (CP Tech
document, October 3, 2005)
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The Provisional Committee on the Development Agenda set up by the
2005 Assembly met in 2006, and its support base was enlarged to include
countries from the African Group, expanding on questions of technical assistance, which were already part of WIPO’s scope. It succeeded, moreover, in
avoiding a restrictive interpretation of these issues on the Agenda.
Also at that moment, keeping in mind that the meaning of the notion of a
development agenda is fluid, other development-oriented proposals emerged
as alternatives to be discussed by the Committee alongside those presented
by the Group of Friends: the African Group proposal, which was a revised
version of one discussed earlier, as well as proposals from Chile, Colombia
and the United States of America. In order to study all the different proposals, the Committee’s president prepared a list, organized to encompass all the
recommendations on an equal basis.
Three years after the initial proposal, the Agenda was finally approved at
the September 28th session of WIPO’s 2007 General Assembly. At this meeting,
a set of forty-five proposals relating to a Development Agenda was agreed
upon by member states and unanimously approved. The final formulation of
the proposal was presented by the Brazilian Delegation, led by Ambassador
Roberto Jaguaribe, and maintained a conciliatory and moderate tone. It
presented some introductory points that had already been included in the
document and stressed WIPO’s status as a specialized UN agency, as well as
the horizontal organizational structure of the Agenda. The text highlighted
the fact that the Agenda’s set of proposals would allow developing countries
to safeguard public interest flexibilities existing in the intellectual property
international system; these countries would receive assistance to implement
such flexibilities; and the proposals would ensure greater civil society participation in WIPO’s activities.
As Bennerman (2008: 25) pointed out, “the Friends of the Development
have already won what is perhaps the biggest contest of principles to have
faced WIPO in the past forty years – the question of whether the WIPO
mandate includes development.” Furthermore:
One of most important battles of the Development Agenda – the battle over
the inclusion of development in WIPO’s mandate – has already been won. […]
[Although] Pessimists (or realists) might generally predict that more powerful
states will ultimately prevail over weaker ones, with the international IP regime
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maintaining its rights-centered focus. […] one more extension of, and infused
with, international power relations – a struggle through which developing
countries are unlikely to achieve substantial gains. (Bannerman 2008:26)
Nevertheless, it cannot go unremarked that while the Agenda was able to
unite discontent voices and make a strong claim for change within WIPO’s
structure, a major leadership crisis became public precisely during the same
2007 General Assembly. Some might say that the crisis even overshadowed
the Agenda. Calls for the Director General of WIPO to step down, after a
decade in office, following accusations of corruption captured the attention of the member states. This discussion divided the countries between
‘Brothers’ of the Director General, the African Group, a silenced country
member group, and the United States and other developed countries who
demanded his immediate resignation. However, as Musungu (2009:74) put
it, the crisis may also have been a blessing in disguise for the Development
Agenda since the reforms that it envisaged could not have happened with an
embattled Director General and a divided Secretariat, nor proceeded with a
sharply polarized membership.
WIPO’s Director General resigned. Brazil submitted Graça Aranha’s candidacy for the position. At the 2008 General Assembly, among several other
candidates, the Australian candidate was eventually elected WIPO’s Director
General by a difference of just one vote from Brazil’s candidate.
From our anthropological standpoint, the account of a four-year dynamic
of how the Agenda was built, embedded in a discursive dispute between two
sets of principles polarized around the notion of property – one aligned with
the private sector, the other with public interest – within global regulatory
institutions, entices us into a narrative of a process in which powers and
meanings are reordered, crafting a tale about the imaginary global geography
of North and South.
Trespassing lines and the anthropological endeavor
In exploring the proposal for the Development Agenda in this work, we
also have tried to shed some light on two processes leading to the constitution of global law-making agencies regulating world trade. First, the World
Intellectual Property Organization, which was transformed from a corporate
patent office to a United Nations regulatory agency; and second, the advent
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of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPs), which came into being together with the World Trade Organization
(WTO), with all its sanctioning power over global trade. Both events marked
the beginning of an era of unprecedented commoditization and heightened
regulatory barriers across the world. In this complex context, the Agenda
could be seen as a mischievous attempt to challenge sanctified rules, routinized powers and homogeneous institutions. Our anthropological endeavor
here has been to give an account of these tensions and the institutional
context in which competing world visions are produced.
Intellectual property rights are a kind of legal fiction. The parameters
defining this kind of relation, including relations between objects and active
and passive subjects, are borrowed almost mechanically from a model that
has been traditionally applied and historically constituted to protect objects
of an altogether different nature. A straight, continuous line is traced linking
the private property of immobile goods – land, for instance – to these completely different, intangible and mutable goods. It is in this sense that some
critics, such as Richard Stallman, founder of the Free Software Movement,
referred to the term ‘intellectual property’ as an oxymoron.
Intellectual Property Rights (IPRs) may sound like a kind of legal fiction
of hybrid realities. Their objects are largely immaterial, yet these rights are
based on analogies with material and immobile goods. Subject to individual
monopolies, they are justified by appeal to collective interests and a particular social function. Personalized and grounded in individual creativity,
they may be inherited by those who contributed nothing to their production. Despite being legal fictions, IPRs are legal entities. It is on this strange
character that we must dwell if we are to make sense of the possibility of
bringing together two objects like property and intellectual activity that are,
in principle, antagonistic.
In our final remarks, we seek to show how, in its very constitution, the
Agenda straddles both sides of what Boaventura de Sousa Santos (2010) calls
the abyssal line. It has been argued that modern law is the most complete
form of abyssal thinking: that is, the way through which Western modernity
divides sensible and non-sensible objects into those belonging to “this side
of the line” and those belonging to “the other side.” The Western side of this
line is ruled by a dichotomy of regulation and emancipation, the other side
by appropriation and violence (Santos 2010). IPRs, which belong to this side,
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have been encroaching on an increasing number of objects, prompting a
impassioned reanimation of the line. On one hand, it excludes and interdicts,
precluding access to a wide range of goods and products located on the other
side of the line (in the way, for instance, that public health programs are
jeopardized by pharmaceutical patents). On the other hand, it nabs elements
from the other side – traditional knowledge, material culture – which, when
brought to this side, are subjected to the same rules, thus feeding into the
interdiction cycle.
Abyssal thinking, a foundational matrix for thought and classification
in Western modernity, is also characterized by the impossibility of existing
simultaneously on both sides. To exist on ‘this side’ implies, necessarily and
by definition, to negate, exclude and eliminate – if anything, to domesticate
– whatever belongs to the other side.
In this sense, a multiplicity of legal systems and ways of defining which
elements belong to the sphere of law not only escape the official framework,
they are converted into non-legal or illicit acts, condemned to invisibility or
illegality. The traditional cruelty of colonial regimes is revamped under the
empire of Law, whether through the plundering of traditional knowledge and
its transformation into a commodity, or by submitting groups to the official
legal framework as the only viable means to safeguard their autonomy and
protect their cultural particularities.
The proposal of a Development Agenda for WIPO is an endeavor to
make this line more porous, albeit in a controlled manner. It is, in a sense,
an attempt to render visible some elements from the other side, fostering
the emergence of authorial, collaborative experiences that differ from the
monopolistic-commercial logic of IPRs. The qualification ‘some’ is important
here: not all elements from the other side are desirable, only those that can
be domesticated and framed according to preexisting ways of distributing
power and knowledge. This is manifested, for example, in the limitations
imposed on the participation of non-governmental organizations in this
process. Even if their presence is desired, their contributions regarded as
fundamental, and their support deemed necessary, there is a clear separation
between these actors, who are authorized to denounce and propose, and
others, more authoritative and legitimate, who manage the contending interests and ultimately define the Agenda’s master guidelines.
From this stems the second process of approximation: the similarly
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controlled attempt to recruit the dissident voices of historically silenced
political minorities to this side of the line during the Agenda-building
process. In a complex process that lies beyond our present scope, indigenous
peoples, patient groups, academics, consumers groups, counter-cultural
movements and anti-globalization movements are invited to participate
in the construction of the new Agenda. They are recruited however on the
basis not of their specificity, but their exoticism. As such, they must to some
extent conform to the formal ritual acts that grant access to these instances –
in particular, the idea of representation.
As stated above, the abyssal line is not a one-way process of incorporating
elements from the other side. There are also increasingly qualified countermovements: experiences of subaltern cosmopolitanism which press for a
non-abyssal form of thinking, based “on the notion that the world’s diversity is inexhaustible” (Santos 2010: 51). In the case of IPRs, this means, for
instance, seriously considering legal systems in which notions of property
find no equivalent in our philosophy, or legal systems based on other logics
of production, appropriation and distribution of (re)creative activity. These
‘others’ can be found not only on the ‘difference’ pole formed by indigenous
peoples, peasants or traditional communities: they are also encountered at
the center and margins of this side of the line, pushing for visibility and challenging the hegemony of abyssal thinking.
It is in this sense that the process for negotiating and approving a
Development Agenda for WIPO – or, more precisely, at WIPO – is paradoxical. On one hand, it shows the political muscle of a heterogeneous group
of social actors capable of tipping the balance of power in the international
intellectual property regime. On the other, it points to the consolidation
of the legal intellectual property regime as something to a greater or lesser
extent ‘necessary’ for the countries’ development. In the first case, there is
a counter-movement, an attempt to push and smooth the abyssal lines that
constitute our world. On the other, there is a re-entrenchment of this line,
since ultimately the existence of the regime itself is not at stake. Its content
and pillars are questioned, but a consensus remains regarding its existence
and reality – and what is more, its inevitability. Hence, even with the openings achieved by the Development Agenda, no substantial changes have been
made to the configuration of forces. In fact, after the earlier moments of
turmoil, the situation has settled in such a way that it has again become clear
o. f. leal, r. h. v. de souza, f. solagna
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who is on this side and who is on the other. And intellectual property continues to be, borrowing from Meneses (2010), one of the shadows that loom over
our modernity.
Received May 2, 2014, approved July 10, 2014
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