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Session #1: Friday, 9 January, 13.30 - 15.15 (CSLG)
Panel coordinator(s): Brenna Bhandar (Kent University, UK) and Dwijen Rangnekar (Warwick University, UK) (b.bhandar@kent.ac.uk/d.rangnekar@warwick.ac.uk)
Chair/discussant: Graham Dutfield, Co-Director, Centre for International Governance, School of Law, University of Leeds, UK (g.m.dutfield@leeds.ac.uk)
Panel description
Panelists, paper titles, and abstracts
The panel seeks to unpack and disturb various readings (and writings) concerning intellectual property. In the process it focuses on that persistent contradiction within intellectual property law – the struggle between myths of creativity and originality and rhetorics of theft and progress. The panel also acknowledges the ‘exclusionary’ effects and impacts of intellectual property. In addition to the exclusionary effects that the borders of a property right generate, the law also excludes various forms of creativity by recognising and privileging only particular arenas and acts of creativity. Another set of contradictions emerge with the very nature of biotechnological innovation itself, which challenges distinctions between the natural and the made, between the categories of human and non-human. These distinctions, well entrenched in regimes of property ownership and patent law, are now being taken apart and challenged by the very substance of biotechnological objects. The role (and ability) of the law to draw bright line distinctions in this arena raises further issues of enquiry.
This paper seeks to focus on the exclusionary nature of IP rights and dwells upon two key senses in which these rights “exclude” both particular people and their knowledges. But this exclusion actually stems not merely from the practice and the design of the IP rights regime as embodied by TRIPS and as supported by other international IP instruments like the UPOV, FAO etc. This exclusion is implicit in the very conception of intellectual property rights (IPRs) which ostensibly stems from the self- owned intellectual labour of individuals but which ends up infringing the self owned rights, over both tangible and intangible property, of ‘other’ contesting or even non-contesting individuals, communities and societies. This paper would begin with arguing that the non-compossibility of IP rights with other’s rights and other rights is both implied in the very conception of intellectual property, which though tries to emulate tangible forms of property in its configuration and demands of protections, fails as a legitimate rights claim. The conception then has manifestations in the way IP rights are configured, institutionalized and regimented as universal law. The assumed universality and validity of IP rights ignores the social constituency of knowledges and the difficulty thereof in establishing a rights claim over it. The paper will highlight the contextual, relativist and the social dimension of intellectual practices in order to question the claimed epistemological privileges, granted by the TRIPS regime to the enterprise of western sciences. Indigenous knowledge, even after its value is being acknowledged by the West that support the use of indigenous knowledge in planned social change, has an asymmetrical location within the TRIPS framework that to a large extent reflects and helps define and legitimize social, political, ideological and economic practice. The IP rights regime is thus exclusionary in practice too.
When we give intellectual property, the conception as well as the institutions that support and protect it, a universal status, a conceptual separation of knowledge from culture takes place. Knowledge gets incorporated into the contemporary discourse as a component of power relations, beyond the notion of cultural division of labor, beyond race, and beyond ethnicity. The TRIPS regime adjudicates over what comprises ‘innovative’, ‘novel’, ‘non-obvious’ knowledge and therefore what comprises intellectual property. The criteria of what constitute knowledge, what is to be excluded and who is designated as qualified to know, involves acts of power. This paper seeks to establish that intellectual property rights are an instantiation of power relations that make it possible to extract and constitute knowledge and adjudicate on what comprises knowledge. The dominance of the discourse of intellectual property has resulted in the marginalization and subjugation of non-Western knowledge systems to the Western science-based knowledge system. Throughout critiques of development discourse there is an assertion of the relative, the local, the plural epistemologies as well as ontologies of peoples. IP rights exclude these pluralities and the rights emerging from them. A right which has weak justificatory premises – both ontological and utilitarian – needs to strongly conjoin with other rights; in the absence of that IP rights will always have weak moral claims.
Intellectual property laws are legitimated by a "progress narrative" in which works contribute to a modern civilizing process. Historically, tradition functioned as modernity's other and its forms of creativity were denigrated as mere imitation. Indeed, imitation itself was cast within a racial narrative in which it exemplified the mimetic alterity of prehuman others (aping). To what extent do new recognitions of 'tradition' within international policy reflect a reversal of these exclusionary tendencies and to what extent do those who 'bear' tradition challenge intellectual property laws to address their constitutive margins and marginalisations?
There is an increasing shift towards achieving uniformity in global intellectual property (IP) regulations. The effort is to achieve this uniformity both in substantive and procedural content of intellectual property rights (IPRs). This move is throwing up interesting, yet difficult response to the emerging debate on IPRs, specifically within the context of certain societies located mostly in developing countries. The iniquitous multilateral IP agenda largely speaks about lack of proper and adequate IP protection in some of these countries. At the outset, it is suffice to state that for some of these countries due to several political and financial constraints intellectual property (IP) is not a priority. Although it is obviously so, these countries increasingly understand and sense the future potentialities of IP and its need. What they do not understand or unable to do is to internalize varied forms of multilateral IP protection to effectively suit their needs. They also know that the primary cause for their inability lies elsewhere. The multilateral rules relating to protection of creativity and other subject matter of IP, for example, are essentially couched in a language that favours few dominant players. The paper will, accordingly, argue that this move towards attempt to create a uniform IP legal regime disregarding the diverse contexts in which some of these countries exist would stifle creativity. It is argued that creativity thrives in conditions of diversity; not just diversity of ideas or its application. In certain societies creativity is linked to day-to-day living and the consequent technology is in-built. Traditional knowledge (TK) offers many such examples. It is further argued that those communities that followed diverse and exploratory approach to their own natural surroundings thrived. In this sense, linking technology and creativity is a relatively recent phenomenon; essentially a by-product of industrial revolution. The word `technology’ per se connotes some kind of an active or express intervention. To be precise in legal terms, it is linked to human intervention. According to emerging norms relating to biotechnological inventions the extent of intervention, in a varied degree, is the key element in deciding the extent of protection. The terminological definitions relating to such terms as – innovation, technological innovation, invention and the term `creativity’ itself assumes different meanings for different communities. The emerging global IPR regime, I would argue, while setting out an ambitious agenda has largely laid emphasis on creation of more durable institutional and uniform regulatory regimes that favour few dominant players. The key component of their agenda is `technical assistance’ for transitional domestic IP regimes to bring them in tandem with so called multilateral agenda. South Asia, within which I propose to examine this link between IP, creativity and the institutional mechanisms, has been attempting to respond to this so called challenge of `transition’ in its own way. The paper would further argue within the South Asian context that shrinking policy space and consequently to determine its own legislative language to capture the essence of its creative collectivity without being inconsistent with the multilateral IP norms should be regarded as one of the emerging challenges. The way forward would be perhaps to provide primacy to territorial notions of creativity and originality. This would also entail nurturing of a viable and durable domestic legal mechanism taking into account its own interpretative matrix. The paper would also look at the available South Asian case laws to locate the IP norm creation in a specific interpretative context.
Geographical indications (GIs) are a recent introduction into the portfolio of intellectual property rights governed by the TRIPS Agreement. Yet, it has existed in different forms either in nomenclature (e.g. Appellations of Origin, Indications of Source, etc.) or as cultural norms and notions. Marks indicating origin and institutional forms of the same (e.g. guilds) are often recognised as the precursors to trademarks. If one moves outside of supranational and into national jurisdictions than the French system for wines, Appellation d'Origine Contrôlée, easily comes to mind. Interestingly, certain products also witness a sui generis system for protection, e.g. International Olive Oil Agreement (Stresa). Looking at cultural norms and notions of authenticity, some scholars draw attention to the stabilisation of cultural repertoires in certain localities as establishing such norms and notions. For instance, van der Ploeg’s talks of art de la localité, suggesting that “every location acquired, maintained and enlarged … its own cultural repertoire: its norms and criteria that together established the local notion of ‘good farming’ (van der Ploeg, 1992: p20). My specific interest is in the interface between these two – and other – norms and notions of authenticity. And particularly in what happens to the notions/norms as they traverse from the ‘cultural’ and into the ‘juridical’.
I approach these puzzles through a characterisation of GIs as ‘clubs’. This analytical category is based on an understanding of the impacts of cultural norms and juridical rights: both, through different mechanisms and with different consequences, are endowed with requirements for adherence (inclusion) and prohibition (exclusion). To explain, the local notions of ‘good farming’ require an adherence to those practices to be part of the ‘club’. Those not adhering to the rules of ‘good farming’ are prohibited from using the mark indicating origin. Such inclusion/exclusion exists with varying levels of precision with cultural norms/notions and their juridical reification – GIs (and others of this IP family). Beyond developing the analytical notion of ‘clubs’, the paper focuses on its application to GIs. Using recently completed field work on Feni (in Goa), the paper raises the following question: ‘How do different actors – and differentially endowed and interested actors – cooperate to form a GI-club?’ Members of a GI-club are interdependent: the reputation embedded in the indication is collectively on account of and simultaneously accrues to all club-members. However, despite this interdependence, club members compete with each other: “horizontally” for market shares (e.g. competition between distillers) and “vertically” for share of the rents (e.g. competition between distiller and a retailer). This competition is equally complicated by varying perceptions and cultural notions of Feni (i.e. ‘good farming’) and imaginations of the future of the product (i.e. the future of ‘good farming’).
The paper ends with a gentle reminder to research on GIs – and other marks indicating origin, such as ‘organic’, ‘fair trade’, ‘blood-free’ diamonds etc. – that using the analytical category of ‘clubs’ to this area brings into attention two particular issues. First, it reminds us of the microfoundations of power and standard setting; thus, suggesting that the consensus of rules is not necessarily the rules adhered to by the consensus. Second, those excluded by the clubs’ rules are not necessarily ‘unauthentic’ – and not adherents to the ‘rules’.