In this chapter, I will examine how intellectual property rights have been conceptualized and practiced in modern society. A preliminary attempt will be made to show the possibility of extending intellectual property rights to peasants.
There are two types of property objects, namely tangible and intangible property. While physical objects such as land, household goods, individual animals or herds of animals belong to tangible property, intangible or intellectual property objects include a list of abstract objects, such as patents, copyrights and trademarks (Oksanen 1998). When someone has a property right, she or he has the right to use what is owned, to exclude others from doing so, and to transfer the right to another person (Stare 1972, 200-207). The owners of tangible property have permanent rights to control and use it.
Intellectual property objects are abstract and can be protected by certain institutions and laws. The relationship between individuals and property objects are determined by property right regimes. The purpose of property right regimes "is to manage people in their use of environmental resources" (Bromley 1991, 21).
Intellectual property rights are aimed to "reward and provide recognition for intellectual creativity" (Shiva 1997, 9). To put matters another way, intellectual property rights protect products of the mind. In particular, patents are a part of the intellectual property rights and "are state-granted and legally constraining protection for inventions, and through them the patent holder appropriates an exclusive right to an abstract object such as the formulae for penicillin and its derivatives" (Oksanen 1998, 20). The patent system is designed to incite individuals to promote creativity and protection of mental achievements about which are neither possessions of natural objects nor discoveries of biochemical qualities in wild organisms. "Consequently, patents are to be granted to those clearly identifiable people who have invented things or processes that are novel, non obvious and capable of industrial application" (Oksanen 1998, 5). This shows that Northern countries claimed property rights on plant variety for a patent of an invention of an industrial product, e.g., novelty, industrial application and originality through the modification of the plant variety's characteristics and quality (Nijar 1996, 76). The patent law of Northern countries shows that the discovery of a product of nature, and the knowledge pertaining to it are not supposed to be patent able, for they lack invention. According to Stenson and Gray, "with traditional knowledge, however, there is no single act of creation: traditional knowledge is not the discovery of a single person or group of people, but the result of centuries of collective experience...in which case there was never any one person or group of persons entitled to private property in this knowledge" (Stenson and Gray 1997, 190). Western countries and corporations owe little value to the knowledge of different plants that serve as the bases of plant-based drugs for the pharmaceutical industry. They believe that "Third Word" people do not have intellectual rights of biodiversity but property right derived from a geographical accident, and they can be entitled to geographical fee for the drugs that are extracted by foreigners from their plants and animals. The knowledge in the resource of indigenous peoples is considered to be common and can be accessed freely. "Communities are in many case de facto or de jure possessors of natural resources. It is disputable whether intellectual property rights can be granted to them" (Oksanen 1998, 19). Accordingly, the people can be considered as creative provided that they can make profits and guarantee them through intellectual property protection. It seems that all value is supposed to be reducible to market prices, and all human activity to commerce. This in turn negates the creativity of other people who do not aim to make profits but to promote the free exchange of ideas as the basis of creativity. Regimes governed by IPRs usurp the creativity of the local people, their knowledge, social and economic lifestyle and practices. "Knowledge and resources are, therefore, systematically alienated from the original custodians and donors, becoming the monopoly of the transnational corporations" (Shiva 1997, 67).
Some Western scholars argue that the "weak" intellectual property protection negatively affects Western industries in "Third World" countries. They lament that protection of one's idea is very weak, and individuals have no confidence to protect their ideas. As Shiva convincingly argues, "[i]nstead of seeing the structural inequality of the international economic system as lying at the roots of Third World poverty, IPR advocates explain poverty as arising from a lack of creativity, which, in turn is seen as rooted in a lack of IPR protection" (Shiva 1997, 11).
Some writers thus underscore that IPRs are formulated in line with the interests of multinational corporations and the reality of social, economic and political organization in industrialized Western countries. In the last quarter of the twentieth century, power is shifted from the hands of national states to the hands of transnational corporations. The political rights of transnational corporations [property and investment, mobility of capital and technology, control over life forms (patents)] have superseded the political rights of citizens in the world. Accordingly, power and capital are concentrated in corporate hands. Shiva argues that "IPR regimes in the context of "free trade" and "trade liberalization" become instruments of piracy at three levels: resource piracy, intellectual and cultural piracy and economic piracy ( Shiva 1996, 63). Industrialized countries have used multilateral international trade instruments such as the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) to extend their intellectual property rights regimes to plants, animals and microorganism (Nijar 1996, 75). Transnational corporations use intellectual property rights to lay claim to indigenous practices used in developing countries. Under intellectual property rights provisions contained in GATT and enforced by the WTO, exchanging seeds is viewed as illegal trade practice although peasants have freely exchanged seeds for generations. The Uruguay Round Agreement gives patent rights for traditional, communally bred plant to a handful of transnational corporations. Companies that hold international patents for seed varieties ask peasants to pay royalties and buy their own seeds from transnational corporations. Some companies have genetically transformed varieties of crops in preparing their patent claim.
Moreover, rules established in the GATT's recently concluded Uruguay Round regarding trade-related intellectual property rights (TRIPs) and trade related investment measures (TRIMs) are favorable to transnational corporations. TRIPs enable corporations to privatize and patent life forms, including plant and other genetic resources of "Third World" countries. The TRIPs provisions in GATT 1994 "guarantee ownership rights to products made in the laboratories of the North from the knowledge of indigenous peoples and local communities...only the North's industrial model of innovation is recognized; the cumulative collective system of innovation of traditional communities is excluded by the TRIPs provisions" (Nijar 1996, 88-89).
In contradistinction to the proponents of IPRs, this study and contributions of many a scholar confirm that peasants are innovative, and critical students of their environment. They are not passive possessors of biochemical information. They actively participate in the production of knowledge. However, the motive force of innovations is not to amass limitless private profit and wealth. Peasants are primarily interested in fulfilling their basic needs, and solving social, economic, political and environmental problems. In some instances, the members of a certain society are free to use the fruits and inventions of some individuals. "This gave rise to free systems of science and technology, which were there for any one to use" (Tewolde Berhan 1996, 16). This, however, does not rule out the fact that some medical practitioners, time reckoning experts, artisans and other peasants who have unique knowledge are not willing to transfer their knowledge to other people other than to their children. As Tewolde Berhan rightly noted, "[t]hese specialized systems of science and technology developed their own intellectual protection systems, usually in the form of the knowledge being `unbuyable'" (Tewolde Berhan 1996, 16).
Some writers suggest that the owners of the habitat of a certain species of organism should have a claim to genetic information the species provides. Vogel argues that we should "create legal title over genetic information as it occurs in nature...These landowners will enjoy rights analogous to intellectual property rights (e.g., patents, copyrights, trademarks, and trade secrets) whenever the information on their land is commercialized " (Vogel 1994, 4). What Vogel is suggesting is that the possessor of biogenetic information should have certain rights to it. In this connection, it has been suggested that property rights should protect both the "human capital" and "natural capital". Timothy Swanson claims, "if one society generates information useful in the pharmaceutical industry by means of investing in natural capital (non-conversion of forest, etc.), whereas another generates information by investing in human capital (laboratory based research and school-based training), each is equally entitled to an institution that recognizes that contribution" (Swanson 1995, 6).
Other writers praise the collective rights of indigenous people. An interdisciplinary team of experts from the "[T]hird World Network, an international group of "Third World" individuals and organizations developed concepts of collective intellectual property rights in 1993 (Shiva 1997, 80). CIP systems recognize the rights of peasants and thereby enable them to protect the biological and cultural diversity of peasant societies across the "Third World" and to protect the free spaces for knowledge systems, which are basis for the local communities (Shiva 1996, 61; 1997, 80). These systems further recognize the value of all knowledge and production systems.
There have been other international attempts to address the property rights in genetic resources. The enactment of an international convention in the early 1960s--the Union for the Protection of New Varieties of Plant (UPOV) heralded the emergence of property rights for commercial benefits in genetic resources (Nijar 1996: 76). The World Food and Agricultural Organization (FAO) also adopted Undertaking at its 22nd session in 1983 in response to the complaints of developing countries about the common heritage of humanity. Free access to basic resources as well as to improved and elite variety is recognized by this undertaking although several industrialized countries ignored this undertaking on the ground that improved materials did not form part of the common heritage of mankind. But Plant Breeders' and Farmers' Rights were recognized in 1989 and 1991 by more than 160 countries as a result of the debates that began in March 1987 meeting of FAO's Commission on Plant Genetic Resources (CPGR) (Nijar 1996, 76-77).
The other significant attempt by the states to tackle the biodiversity loss by means of establishing international rules of governance over biological and genetic resources is the Convention on Biological Diversity (CBD). The CBD recognizes that the states have "sovereign right to exploit their own resources pursuant to their own environmental policies..." (Art.3). Consequently, concerning genetic resources, "the authority to determine access...rests with the national governments and is subject to national legislation" (Art. 15(1)). Farmers' and indigenous peoples' rights were acknowledged as important means of conservation and biological diversity although this has not been fully supported by the existing international mechanisms. Regrettably, international attempts have not changed the existing situation.
I would suggest that if the people in the world are to protect the creativity of nature and of diverse knowledge systems, the dominant IPRs, TRIPs, patents on life, and the fundamental principles of TNCs should be reconsidered, and changed in favor of the protection of all forms of knowledge. Intellectual property rights whether we call it collective or not, that recognize the rights of peasants, indigenous people and industrialized countries should be instituted. As has been stated, the present IPRs are not inclusive of the innovations of peasants and other indigenous people in the world. The local people should be empowered and supported by the concerned groups. They must benefit from their knowledge of the natural environment and its resources.
