[Sabrina Safrin (guest-blogging), March 8, 2007 at 9:24am] Trackbacks
Globetrotting Propertization.

Today's global economy makes the chain reaction creation of property rights more pronounced because changes in property rights in one country, particularly when internationalized, can trigger unanticipated changes in the property regimes of another. The propertization of naturally-occurring genetic material that occurred in response to the patenting of bioengineered organisms and isolated and purified genetic sequences represents one example of globetrotting propertization. The growing international demand for the creation of new intellectual property rights to cover traditional knowledge represents another.

Most knowledge that we use is both traditional and free. It consists of human innovation and insight developed over millennia and passed down from generation to generation. We take the free availability of most information as a given. Yet, today many nations demand the development of new intellectual property regimes to cover "traditional knowledge." A flurry of international activity in multiple fora has materialized on this issue. Several nations have already enacted measures to protect traditional knowledge.

What has occurred to cause nations to demand the extension of intellectual property rights to tradition?

Anthropologist Michael Brown observes that "[i]n the late 1980's, ownership of knowledge and artistic creations traceable to the world's indigenous societies emerged, seemingly out of nowhere, as a major social issue."

Did something happen in the late 1980's that could have engendered such demands? Yes, the internationalization of intellectual property.

In the late 1980s, the United States began to impose trade sanctions against countries that accorded little or no protection to U.S. intellectual property goods. Moreover, in 1986 and 1987, the United States and the European Union linked intellectual property and trade in the negotiating mandate for the Uruguay Round of the GATT. The 1994 adoption of the TRIPs Agreement, which emerged from the Uruguay Round, required countries to put in place, as a condition of participating in the world trading system, copyright, patent, trademark and trade secret laws.

Beginning in the late 1980s, developing countries were thus forced to extend a host of intellectual property protection to a vast range of knowledge that had hitherto remained free in their countries. They responded to these first generation intellectual property rights by demanding in numerous international fora the development of second generation intellectual property rights which would propertize traditional knowledge generated in their countries that had previously remained open.

For example, developing countries strongly object to the TRIPs requirement that they extend patent protection to pharmaceutical goods. In turn, their demands for the extension of intellectual property protection to traditional knowledge often concern the protection of folk remedies. Similarly, developing countries have responded to the developed country insistence on intellectual property rights over plants by demanding the international recognition of "Farmers Rights" to address the historical and continued contribution of farmers to the development of crops.

In response to requirements that developing countries extend copyright protection to artistic works, these countries now demand that some kind of intellectual property right attach to traditional songs and dances that originated in their countries. They decry the copying of these traditional works or their incorporation into new works as "piracy."

The internationalization of intellectual property began a chain reaction of propertization that not only encompassed new technologies and creative works but also unexpectedly innovations and expressions existent for centuries.

Should the movement to extend intellectual property rights to traditional knowledge take root, I expect that in chain reaction fashion it will engender demands to protect not only knowledge from developing countries and from indigenous communities but also traditional Western knowledge. Each year when I teach about international developments to establish new intellectual property regimes to cover traditional knowledge, some students invariably assert that traditional Western knowledge should receive the same protection. One student recently elaborated on all the intellectual property rights that ought to attach to the hamburger.

(I note as an aside that there exists a tendency in the United States not to take overseas and international propertization developments that seriously. Who cares if Panama or Brazil restricts access to raw genetic material or puts in place an intellectual property system to cover traditional knowledge? These developments can, however, impact the U.S. intellectual property system. For example, an increasing number of both developed and developing countries believe that the TRIPs agreement should be amended to require that patent applications disclose the source country of any biological material used in the innovation. If the amendment is adopted, this disclosure requirement could apply to U.S. patent applications as well.)