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« He sowed, other reaped » : The secret war of capital against life and our liberties

Jean-Pierre Berlan — 2009-01-08T23:47:23Z

Connaissances en communs
Knowledge Commons
Sommaire/ContentsJean-Pierre Berlan, Ancien directeur de Recherche Inra Montpellier (France)

One does not need to be a marxist to realize the basic rule of our capitalist economic system : production begins by investing money to buy the equipment, raw materials, energy, etc. and hire workers to produce a commodity and ends up with money when the sale of the commodity closes the process. Such a process makes sense if, and only if, the amount of money received in the end is higher than the amount invested, namely if there is a profit. A business enterprise exists in so far as it produces profits.

The commodity produced, be it cars, pesticides, armaments, or drugs etc., is simply a means to that end. If bombs are more profitable than food, food production will collapse and investments will flow into bomb factories. Millions of people have recently starved to death because it had become more profitable to produce necro-fuels rather than food, but for capital these sufferings were irrelevant. Not only what is produced but where (China, Brazil or Rumania), by whom (by slave labor, prisonners or by unionized workers), how (in a safe environment or in a toxic one) and when it is produced (strawberry in winter or summer) are as irrelevant as are pollutions, depletion of natural ressources, damages to the environment, workers' and consumers' health, etc. This is because of competition. Under the pressure of competition, a business enterprise must move to the most profitable location, use the most profitable source of labor whatever the consequences. If it does not, competitors will, and it will die. Obviously, ethical considerations have no place under such a rule except as a talk show smokescreen or during Sunday services.

Likewise, under the pressure of competition, a business enterprise must, in turn, reinvest its profits into a new cycle of production with more efficient machinery, speeded up production methods, « new » products, etc. If not, it will fall behind its competitors and die. So that capitalism is condemned to permanent growth. It must expand geographically. It must deepens by destroying former systems of production. It must turn public goods that use to be free into new sources of profit. It must subvert all the autonomous dimensions of our lives.

Such a ferocious beast can only be tamed for a limited time. Social struggles during the 1930's and WWII imposed some ties that were soon broken. In the 1980's, the liberal ideology loosened the chains of the beast which became increasingly free to roam over the planet in search for new sources of profit. Thus, a seed industry which was unconcentrated (with the exception of so-called « hybrid » seed), into a large number of small entrepreneurs/breeders and small companies was consolidated by the self proclaimed « life science industry », namely a cartel of transnational manufacturers of pesticides, herbicides, insecticides, fungicides – the « death science industry ».

Over the last fifteen years, the system made a far reaching discovery : it could make immense profits out of nothing and without producing anything, be it usefull, useless, or noxious. This is called finance. The miracle worked for a while : the inflated speculative virtual wealth it created indeed stimulated a frenzy of debt-based consumption of commodities particularly in the US and England, but in the end, the day of reckoning has come : it was a gigantic « Ponzi scheme ».

Briefly stated, a business enterprise will produce anything or even nothing, provided it is profitable.

In this regard, life confronts capitalism with a difficult problem : living organisms, plants, animal reproduce and multiply gratis, for nothing. Indeed, some living organisms even have pleasure reproducing, which makes this injustice of Nature doubly scandalous.

As long as the harvested grain is next year seed, breeders, seedmen and their likes have no market worth the name. No market, no profit. More generally, as long as plants and animals reproduce and multiply gratis in the farmer's field, no profit can be made. This was recognized long time ago, in fact as soon as the first breeders/businessmen appeared :

"Take, for instance Ephraim Bull [1], who gave the world the Concord grape, now a standard variety, cultivated in thousands of vineyards, found in nearly ever section where grapes will grow. He created wealth, luxury, refreshment and food for millions. His work is today precisely as valuable as it was on the day he first gave it to the world. The first mother-vine which thrives to this day at Concord, Mass., has multiplied its potency into the tens of millions of vines, unchanged, not losing an iota from any one of the many qualities which gave its peculiar value. Ephraim Bull died in poverty...at the age of 89 and the passers-by are informed by the epitaph on the plain slab marking Ephraim Bull's grave that:

'HE SOWED, OTHERS REAPED' [2]

The law of life runs contrary to the law of profit. Life, then, must be wrong. This is what the infamous transgenic technology « control of gene expression » [3], nicknamed Terminator by its opponents, revealed in march 1998. Terminated seeds germinates normally, the plant grow normally, it flowers normally, the grain develop normally and the plant produces a normal crop – but for the fact that a transgenic device has killed the germ of the grain. If sown, the harvested grain will not germinate. It is sterile.

In our light, Terminator – the sterilization of life - appears as the greatest triumph of two centuries of plant breeding and applied genetics. For this is the very goal that plant and animal breeders have consistently pursued, ever since the first commercial breeders-seedmen appeared, during the last decades of the eighteenth century for farm animals and about one century later for plants.

I shall not deal here with animals since wresting life from the hands of farmers into those of investors/breeders was fairly easy. Reproduction could be controlled by keeping the males and females locked while property rights were asserted by a bureaucratic system– the « herd book ». Earlier, during the eighteenth century aristocrats had pioneered the device for their lucrative passtime, horses racing, and not suprisingly, they patterned their system of control of the blood (i.e., the profit) of their « purebred » horses after their aristocratic own « pedigreed » system of transmission of « blood » (i.e., power and wealth). In the early nineteenth century, farm animal breeders extended it to cattle and sheep, thus gaining a tight control over the « blood » (profit) of their animals. [4]

For plants, the task was daunting. It implied separating what life confounds, separating production from reproduction. The first could remain in the hands of farmers, the second was to become the monopoly of investors/breeders. It meant expropriating the founding practice of agriculture, sowing one's harvested grain. It meant creating a breeder's priviledge over reproduction at the expense not only of farmers, but of the entire society. Life had to be « enclosed » just like common land had been enclosed in England, thus creating a revolutionary new social figure, the free proletariate, entirely divorced from any means of production, but his labor force. This process laid the ground for the Industrial Revolution and to the present industrial world.

Expropriating life is even a more revolutionary project. It will affect all dimensions of our lives, economic, social, political, symbolic. It will separate humanity from life itself. Our depossession will be total, our alienation absolute. The shift of political power brought about by two centuries of industrial advances makes this maddening project within completion, at least in industrial countries. Farmers were the most numerous social category, they have been wiped out in few decades. It is only by (a lazy) habit that we call survivors « farmers » for they are now simple cogs – « technoserfs » - of an immense agro-industrial-financial complex ; seed companies were small family companies, and carried little economic and social influence while now they are part of the powerful cartel of the « death science industry » ; and last, Life that was sacred has been reduced to unspectacular strings of DNA. [5]

Until recently no breeder/seedman could claim : my goal is to sterilize life. [6] Such a goal had to be carefully cloaked into secrecy to be achieved. A corrupt and misleading vocabulary turned out to be the best way to protect the « Great Secret » of breeders and agricultural genetics. If Terminator finally revealed it, this is because the « death science industry » feels it has now the political clout to assert its priviledge over life.

In the following pages, I shall deal with both issues : how the system managed to expropriate reproduction and how its corrupt vocabulary concealed its deeds.

* * *

Peasant farmers grow varieties in the original sense of « character of being varied, diversity, the contrary of uniformity ». In fact, as late as 1880, the Vilmorin in France used indifferently the word « varieté » (« variety ») and « race » to describe « Les meilleurs blés » grown in France. A variété of wheat is made up of plants that share a number of particularly visible characters such as height, shape of the ear, color, earlyness, etc. This makes it possible to identify a particular set of plants as variety X or Y. But upon scrutiny, within such varieties there exist large variations. Such is the case for human and animal « races ». Industrial farmers grow also « varieties ». At present, law requires that such « varieties » be Homogeneous (all plants of a given variety must be identical) and Stable (the plants must remain identical to the original model). The third criteria Distinction follows from homogeneity and stability : clone A is distinct from clone B provided that all plants of clone A differ from all plants of clone B by the same set of characters. All « varieties » sold in industrial countries must conform to the Distinction, Homogeneity, Stability criteria. The task of a seed producer is to make exact copies of a plant which is deposited in the vault of an official organism, namely to clone it. Modern « varieties » are clones - whatever their mode of reproduction.

Industrial farmers and indeed everyone including scientists (who usually are extremely touchy to the point of esoterism about precision of vocabulary) use the word « variety » to designate this exact opposite : clones, that is a set of DHS plants. It is my contention that this semantic confusion is deliberate. For the term « clone » illuminates the forces that drove the bisecular course of breeding and agricultural genetics from homozygous clones (the « pure line » « varieties » of the 19th and 20th century) (I), to heterozygous clones (the so-called « hybrid » « varieties » of the 20th) (II), and to the so-called « Gmos », namely Patented Pesticide Chimerical Clones (Ppccs) of the 21st (III). In the same way that a mouse click changes instantly the display of a computer screen, the word « clone » will dispell a century of genetic confusions and mystifications about breeding and genetics, particularly about « hybridization », the dominant breeding method of the 20th century. Thus, in this historical perspective, Dolly simply extends to mammals what breeders and geneticists have done or attempted to do to plants for two centuries. How can we explain this two centuries long devotion of breeders and geneticists to cloning ?

II. Homozygous cloning or line breeding

Early in the nineteenth century, British gentlemen farmers realized that their cereals, wheat, barley and oats, « breed true to type », the expression meaning that each plant keeps its individual characters from one generation to the next. They had no explanation for this observation but it did not prevent them from making use of it. When they discovered a naturally « isolated » plant that seemed to carry some valuable characters, they grew it individually to multiply it, that is they cloned it. If the clone proved to be valuable, they would grow it year after year.

« The old Chidham wheat, wrote J. Percival, the first English Mendelian wheat breeder, grown in this country from about 1800 to 1880 or later was derived from a single ear found growing in a hedge at Chidham in Sussex" [7] "The variety Fenton, also an excellent sort much cultivated last century was discovered by Mr. Hope of Fenton Barns, Scotland, in a quarry in 1835 ... [8] " "In Scotland, P. Shirreff developped his wheat Mungoswell from a plant which had well survived the severe 1813 winter [9] " etc.

The second phase in the development of the method began in 1831, when John Le Couteur, a gentleman farmer from Jersey, took his visitor, the Spanish botanist Mariano La Gasca, to his wheat fields. La Gasca pointed out that a field which Le Couteur considered "tolerably pure" was a mixture of twenty-three sorts "of which some have been discovered, through the experimental researches made by the Author, to be three weeks later in ripening than others" [10]. Le Couteur went to work : scouting his fields, he « isolated » (selected) the very rare promising plants – healthy plants that carried a set of favorable characters such as a good root system, a strong stem, a heavy ear, color, standability etc., grew them individually to multiply – to clone – them - tested the various clones and finally selected the best one (or ones). In 1836, he wrote a book to describe his « isolation » method : "...no previous writer had yet called the attention of the agricultural world to the cultivation of pure sorts, originating from one single grain, or a single ear" [11] . His pride is justified. La Gasca and Le Couteur invented the modern breeding improvement technique : cloning.

We should note here that improvement stems from : a) visual selection (isolation) of the very rare plants that carry a set of favorable characters ; and b) selection of the best clone among the clones extracted from the variety.

Three reasons explain this two centuries old devotion to cloning.

The first one is its logic. There will always be a gain (according to whatever criteria) to replace a variety of « anythings » by copies of the best « anything » (or any « anything » superior to the average of the variety of « anythings ») extracted from the variety.

This logic has a supremely important consequence : improvement by cloning is independent of the reproductive system of an organism. The breeder should be able to extract superior clones from a variety. Period. This appears tautological at this stage, but this evidence runs, as we shall see, against a century of genetic teachings. It follows that any attempt to justify breeding/cloning by biological considerations or, for that matter, by any consideration hides some kind of dishonesty or swindle.

I should add that what is logically inescapable can be bio-logically wrong. Organic farmers have been increasingly joined by more thoughtful farmers, agronomists and biologists rediscovering the importance of biological diversity. Furthermore, it is obvious that such a method contributes to the destruction of biodiversity. Criticisms have focussed so far on industrial monoculture while ignoring that our industrial monoculture is monoclonal. It is likely that the use of the word ‘variety' instead of clone has contributed and still contributes to delay recognition of one of the major threat to diversity.

The second reason is that the Industrial revolution was not limited to coal, steam engines, textiles, iron, railways, but was a model for all activities, including agriculture. Gentlemen farmers were Ricardian – capitalist - farmers. These entrepreneurs invested in agriculture in order to produce profits. They shared the implicit values of the Industrial Revolution, the search for industrial uniformity, the drive to produce normalized, standardized, homogeneous and stable (that would remain identical year after year) commodities for distant anonymous markets.

The third reason is property rights. True, these Ricardian farmers were interested in improving the profit of their domains. Realization that breeding could be a direct source of immense profits came later, in the second part of the nineteenth century. Yet, with hindsight, the link between industrial uniformity and property rights is obvious. No property rights can be defined on a variety because it is heterogeneous and changing or unstable. A clone is Homogeneous and Stable over time. It is a living dead. It suffice to describe it with enough details to Distinguish a clone from another one. In the late 1920's, French cereal (essentially wheat) breeders adopted these three criteria, Distinction, Homogeneity, Stability (D.H.S.) to set up the first system of property rights on plants [12].

Two observations can be made : first, these criteria describe the steps of small grain (autogamous) cereal breeding : crossing two plants having complementary characters which, when found together in a plant would Distinguish it from others plants, and selecting for these characters within the successive generations of the cross until reaching clonal Homogeneity and Stability. Briefly stated, the D.H.S. gave a legal basis to the La Gasca/Le Couteur cloning method – and, in effect, outlawed varieties. Only clones can be offered for sale.

Second, such property rights were directed against seedmen selling clones of their competitors under a different name. At the time, no one knew for sure what was traded. From the point of view of an anonymous market, it was legitimate to define exactly what was sold. In 1961, the six countries which founded the Common market adopted this system of breeder's rights under the Treaty of the Union pour la Protection des Obtentions Végétales (UPOV). At present, 60 countries had adopted it, but it is now threatened by patents which not only protect a breeder from the competition of seedmen but terminates the so-called « farmer's privilege » [13]. .

The « farmers' privilege » designates the practice of using the harvested grain as next year seed. It founded agriculture. Surprisingly, neither the ancien régime landlords nor our present capitalist moneylords ever attempted to wrest such a privilege from their peasant tenants to grow crops by themselves.

So that the « death science industry » and its allies denounce a non-existent farmer's privilege in order to wrest a privilege on the reproduction of plants and animals ! And it demands this privilege in the name of « free » markets, of liberalism – another imposture.

II. Twentieth century : heterozygous cloning

Nineteenth century breeders invented cloning for plants that « breed true to type », such as wheat, barley or oats – namely autogamous plants ; twentieth century breeders strove to apply the same method to plants that do not « breed true to type », to plants that lose their individual characters in the farmer' field because, like mammals, they are cross-fertilized – to allogamous or, rather, heterozygous plants. With an obvious consequence : farmers would have to buy back their seeds every year.

At the beginning of the twentieth century, in 1908, George Shull in the United States discovered a method to extract clones out of maize varieties. We are celebrating at present the one hundredth birthday of his technique based on the newly rediscovered Mendelian laws (Box 1). The road to commercial success was long, tortuous, full of setbacks and required a decisive « Lissenkoist » intervention of the State in February 1922 to impose cloning to recalcitrant traditional maize breeders. The mobilisation of public research and large public expenses in favor of the new breeding technique finally succeeded : by the mid 1930's, public breeders had managed to extract clones that were consistently better than the unselected farmers' varieties from which they were extracted.

In what follows, I shall not deal with the rich hagiography which, under the deceitful expression « hybrid corn » and « hybridization », extravangantly celebrated the triumph of this cloning method but concentrate on what is the most enduring, the most lucrative, [14]the most subtle scientific mystification of the 20th century. It is all the more brillant that it rests on a slight twist of vocabulary, the use of the expression « hybrid » [15]rather than « clone » or anything equivalent such as Le Couteur's « pure sort ». That was enough to send astray breeders and agricultural geneticists for a century into the black hole of the mysteries of hybridity, hybrid vigor, heterosis, dominance, overdominance, pseudo-overdominance, epistasy and the likes.

We have seen that breeding/cloning is based on an inescapable logical principle. Maize varieties grown in the Corn-Belt exhibited until the 1930's very large individual variations. Applying the La Gasca/Le Couteur isolation/cloning method could make sense.

This is the idea that Shull expressed in the first part of the first sentence of his first famous seminal article « The composition of a field of maize » presented before the annual meeting of the American Breeders Association (a professional body, not an academic one) at the end of January 1908.

"While most of the newer scientific results show the theoretical importance of the isolation methods, and practical breeders have demonstrated the value of the same in the improvement of many varieties … ».

At this point, Shull should have pursued « at last, I have found a Mendelian method to extract clones from maize varieties » (Box I) and apply the La Gasca/Le Couteur improvement method. » No more was necessary. But this, he did not do : the second part of his sentence introduced the biological discussion of « hybridity » which occupies the rest of his article : « … the attempt to employ them in the breeding of Indian corn [16] has met with peculiar difficulties, owing to the fact that self-fertilization, or even inbreeding between much wider that individual limits, results in deterioration » [17] (p. 296).

Shull's theorizing is that maize being a cross-fertilized species, a field of maize is made up of complex « hybrids ». His experiments with corn had shown that self-fertilizing corn reduces its vigor (« deterioration ») and that crossing (hybridizing) self-fertilized corn plants restaures vigor. According to Mendel's laws, each self-fertilization halves the percentage of genes in the heterozygous state, namely it halves the « hybridity » or heterozygosity of maize while crossing restaures hybridity. From this correlation, Shull jumped to concluding that hybridity is the cause of vigor. The breeder's task then is to keep maize in its highest state of « hybridity » and the only method to do so and to improve corn is his « corn hybridization » technique – indeed, an overwhelming argument in favor of this invention.

Shull's theorizing is brillant - so brillant that it has blinded almost everyone for a century. If we leave aside the logical flaw that correlation between hybridity and vigor is not causation [18] , it is very convincing… once the reader has been trapped into his « hybrid » black hole [19] ! But we know that improvement by cloning does not require any justification. Even if is theory had been without a flaw, its mere formulation is the evidence of a mystification.

What is the corpse that Shull hid in the closet ?

Suppose Shull had been scientifically honest. He would have described La Gasca/Le Couteur cloning method of improvement for true breeding plants and given due recognition to de Vries' « great book ». He would have then explained his Mendelian trick to extend them to maize (Box 1).

The result ? Everyone would have realized that his method, not only ran contrary to the well established breeding principles « Breed from the Best » and « Like engenders like », but was unlikely to deliver anything but unworthy gains. [20]

We have seen that improvement brought about by the La Gasca/Le Couteur cloning (isolation) method stems from two sources : visual selection of the rare plants carrying as many as possible favorable characters ; and selection of the best clone. Shull's method eliminates the phase of visual selection. It is as if breeders went blindfolded into the maize field to randomly pick up a few maize plants - the future clones. The chances to extract a superior clone from a maize variety by such a method are none.

If Shull's clones could not improve maize, what could they improve ? The answer is : BREEDER'S PROFIT. A maize plant is the result of a cross. Like a mammal, it has, so to speak, a mother which differs from its father. Such a plant cannot keep its individual characters from one generation to the next, whether cross-fertilized or self-fertilized. If a clone has been selected for its exceptional qualities, its offsprings will not keep these exceptional selected qualities. In Shull's words : « When the farmer wants to duplicate the splendid result he has had one year with hybrid corn, his only recourse is to return to the same hybridizer from whom he secured his seed the previous year and obtain again the same hybrid combination. »

Shull's maize cloning method does not aim at improving maize for farmers, but at creating property rights for breeders. It is turned against farmers. It is the first Terminator.

It was a momentous achievement : "I could have raised a monument to myself, wrote Shull, which would be worthy to stand with the best biological work of recent time" [21].

Indeed : Shull had solved the only problem that matters in a capitalist society : creating a new source of profit at the expense of farmers, at the expense of society as a whole. And at the same time, he had obfuscated it by an extraordinary semantic subtelty. No wonder that Shull has been celebrated as a scientific hero.

We may stop here to ponder about the gullibility of the entire scientific community, biologists, agronomists, sociologists, and economists when it comes to the genetics [22]. How could any one delude himself into thinking that improving maize required that it did not reproduce in the farmer's field ? How could any biologist not suspect a trickery ? Is not reproduction the most fundamental character of Life ? At least, farmers suspected it : they dubbed the revolutionary « terminated » corn « mule corn » (the mule is sterile). But because it had been « Hi bred », these clones yielded more than their unselected varieties and they had no choice but to put the rope around their neck and purchase it.

Who could believe that terminating corn could help farmers and serve the welfare of mankind ? Orthodox economists manage to built up the evidence that it was the case [23] ! But, it is not only a matter of gullibility. It is also a matter of power, with one side disposing of such an arsenal of institutional, economic, scientific, ideological, and political weapons that the idea of speaking the truth could only germinate in the mind of the few dissidents willing to engage in a lost battle. It is also a matter of devotion to the Cartesian scientific method as we shall see. The few critical voices which, at the time, had enough common sanity to remain unconvinced by the lights of the new science of Genetics were called « obscurantist » and silenced by an owerwhelming propaganda. We should keep this in mind when dealing with the latest attempt to mystify the latest development of industrialisation of life, the so-called « Gmos ».

III. Twenty first century : a new round of mystifications, the so-called Gmos

So-called Genetically Modified Organisms or « Gmos » pursue bi-secular process of the industrialization of agriculture and privatization of life, introduce a new and irreversible form of pollution, genetic pollution, thus accelerating the pace of destruction of biodiversity so that no return will be possible, and close the historical process of our depossession. The drive for profit and social control takes place, as usual, behind a philanthropic smokescreen - fighting hunger, curing deseases, protecting the environment, depolluting East Saint-Louis [24] and what not. As usual, this smokescreen deploys two weapons : corruption of vocabulary and a powerful scientific ideology, the DNA.

Corruption of vocabulary

All living organisms being constantly « genetically modified », the term Gmo has little meaning. It was chosen to avoid the term ‘chimera' that was used by scientists at the beginning of the transgenic era. For instance, the patent of Cohen and Boyer on their first transgenic manipulation (1973) was on a « functional chimera » (or ‘genetic chimera' since the term function and gene at the time had the same meaning). Cell biology defines a chimera as an organism composed of two genetically distinct types of cells. In a transgenic organism, a construction made up of genes coming from differents species, genera, kingdom has been added to the normal organism. Transgenic plants for instance carry a promoter (in most cases a gene from the cauliflower mosaïc virus), a gene from any kind of organism (insect, mammal, virus, plant, fish, man …) conferring some valuable character or function and a marker gene (initially, a bacterial gene conferring an antibiotic resistance) to sort out the cells that have been transformed.

The term ‘genetic chimera' then describes exactly an artificial construct involving genes from various origins. But from a marketing point of view, genetic chimeras would have been unpalatable, so more so that consumers are particularly distrustful when it comes to food [25]. Monsanto proposed or rather imposed the term Gmo so that these revolutionary techniques could be pictured as the continuation, by more reliable, more precise, more predictable and safer methods of what humanity had done since the beginnings of the domestication of plants and animals. That the immense majority of biologists accepted to sacrifice scientific precision to marketing tells a lot about the commodification of biology.

A more precise expression to designate cultivated Gmos would be Patented Chimerical Pesticide Clones, or Pcpcs. Such plants are now grown on some 100 million hectares, and are, as usual, clones. Since more 99% of the Pcpcs now cultivated are either producing an insecticide, or tolerant to an herbicide, or both, the term « pesticide » does not require an explanation. Even Nicolas Sarkozy, the French president, has talked critically of « pesticide plants », but his government is still trying to sneak them into French agriculture.

The death science industry has taken over seed production to increase the sale of its poisons but their propaganda asserts that their so-called Gmos will protect the environment ! As to farmers (the technoserfs of the agro-industrial complex), they are sinking deeper into an addictive [26] and inefficient pesticide system, [27] that destroys soils, pollutes waters, poisons the environment in general, and ruins public health.

The adjective chimerical has been explained. The last term « patented » accounts for recent legal developments : so-called Gmos are patented. In North America, it means that the farmer cannot sow his harvested grain anymore, nor exchange it with his neighbours for seed. Patents are Terminators by law, without the costs, hassles, and unreliability of biological solutions such as « hybridization » or the biological Terminator. In Europe, the directive 98/44 on « Patenting of biotechnological inventions » prepares the end of the « farmer's privilege » - in the name of liberalism ! The death science industry managed to obtain from the Commission, the Council of Ministers and the Parliament what candlemakers petitionning in 1845 against the unfair competition of sun asked in vain :

« … a law requiring the closing of all windows, dormers, skylights, inside and outside shutters, curtains, casements, bull's-eyes, deadlights, and blinds—in short, all openings, holes, chinks, and fissures through which the light of the sun is wont to enter houses, to the detriment of the fair industries with which, we are proud to say, we have endowed the country, a country that cannot, without betraying ingratitude, abandon us today to so unequal a combat. (…)

« First, if you shut off as much as possible all access to natural light, and thereby create a need for artificial light, what industry in France will not ultimately be encouraged? » [28]

Thus the expression Patented Chimerical Pesticidal Clones, Pcpcs designates precisely what the death science industry and his biotechnicians try to force sell. A single company, Monsanto hold some 90% of the market and is the spearhead of the US government to secure, thanks to gene patenting, a monopoly over life and a control over the world food supply.

The ideology of DNACf. [29]

The scientific smokescreen of DNA is difficult to dispell because not only scientists, but all of us are ideologically committed to a mechanical reductionist and determinist world view so well expressed by Descartes, some four centuries ago. So that the propaganda about biotechnologies solving the problems of humanity from hunger to deseases was listened to with awe and credulity. This Cartesian approach is at the center of the « molecular vision of life » [30] of the Rockefeller foundation that was to lead to molecular biology and to biotechnologies. The objective was to apply to biology the Cartesian model that had proven to so sucessful in the physical sciences. The strength of the new biology would be « grounded in the study of the ultimate littleness of things. …control over nature was to be derived from manipulating miniaturized bits of nature » [31]. The success of the program was rapid.

The discovery of the structure of the double helix (1953), raised the challenge of the elucidation of the genetic code. In 1957-58, Crick formulated two hypotheses that simplified the task : the « sequence hypothesis » and the « central dogma » : a gene (the sequence of nucleotides) determines exactly and univoqually the sequence of aminoacids of a protein. The diagram

gene ==> protein

where the arrow goes from gene to protein captures the paradigm (to use Thomas Kuhn's word [32] ) of molecular biology [33].

Paradoxically, the triumph of the elucidation of the genetic code by the late 1960's had several perverse consequences.

First, since Crick's hypotheses worked, almost everyone jumped to the conclusion that they were true. Crick himself reiterated them in 1970 after an earlier Nature editorial had noted their “considerable oversimplification” of reality : …"the discovery of just one type of present-day cell which would carry out any of the three unknown transfers (Protei==>Protein, Protein==>DNA, Protein==>RNA, NDA) would shake the whole intellectual basis of molecular biology." [34]

Second, it entrenched DNA as the « molecule of life », the « code of codes » from which life proceeded just like the Creation proceeds from the Creator. Biologists rewrote the first sentence of the Bible as: « In the beginnings was DNA ». The doctrine of DNA became an ideology. [35]

Third, the remaining task of biologists was to decipher, to « sequence », the « book of life » (the genome) of as many organisms as possible. Biology became a matter of industrial organisation, investment, finance, marketing, division of labor and propaganda : huge investments in sequencing machines, computers, software were necessary ; raising funds required to convince private investors and governments that a new era of total mastery was coming. Top biologists mutated into entrepreneurs and propagandists and their laboratories into corporate organisations. They multiplied extravagant promises and ended up believing them after their own public relations officers, investors and the media had had enormously amplified them.

Fourth, the first genetic manipulation in 1973, opened up the biotech era. After the initial worries were placated, a new Eldorado appeared at hand since moving genes around would make it possible to produce any corresponding protein/function. Hunger and deseases would be scourges of the past.

Fifth, since genes were defined entity producing well defined proteins, they could be patented. Out of this financial/scientific euphoria grew the Human Genome Project. On top of all the inflated claims, at last « we would know what it is to be human » as Nobel laureate W. Gilbert claimed.

In the words of B. Commoner [36]: « That the industry is guided by the central dogma was made explicit by Ralph W.F. Hardy, president of the National Agricultural Biotechnology Council and formerly director of life sciences at DuPont, a major producer of genetically engineered seeds. In 1999, in Senate testimony, he succinctly described the industry's guiding theory this way: "DNA (top management molecules) directs RNA formation (middle management molecules) directs protein formation (worker molecules)."33 After all, at a time of a triumphant capitalism, it should not be surprising that Life itself be a capitalist enterprise.

Alas, the worldwide extravagant celebration of the sequencing of the human genome could not hide that the bubble had burst : the human species has about 30.000 genes (this number appears now to be even lower), and from 3 to 10 times more proteins. So the precise mechanism of information transfer from DNA to proteins does not exist. Alternative splicing – the possibility for a gene to be involved in the making of many proteins [37] -, well documented by the early 1980's appeared to be the rule. Many other ‘anomalies' called the molecular biology paradigm into question. They were and still are largely ignored. Technological developments (biotechnologies) proceed unabatted while the scientific foundation that made them possible has disapeared. This is a threatening situation. It does not seem that the nuclear experience has taught anything. The only hope is that public opinion in Europe and elsewhere will manage to stop the biotech flood before it is too late and impose a reasonable approach to agriculture and food.

* * *

This short history of industrial breeding reveals that breeders and geneticists have constantly deceived themselves while deceiving us without ever deceiving the interests that they had to serve. Such is the rôle of science. Important features about biology, applied and theoretical, under industrial capitalism emerge : the drive for commodification of heredity and social control mystified by scientific constructs based on the systematic use of a corrupt Orwellian vocabulary ; the dramatic reduction of our liberties with the historical completion of the « enclosures » of life with patents ; the entrusting of Life to the death science industry ; the denial of democracy consisting in making decisions « on sound science » (namely the science concocted by the death science industry, as the US government, international bodies and our complacent elites want), etc., ; all this occuring within a general ruin of soils, seas, fresh waters, biodiversity, health. I have little doubt that the same holds true for most if not all scientific fields under industrial capitalism.

The idea that another scientific knowledge can be developed has been ridiculed for decades. Rightly so, but for a wrong reason : proletariate science and bourgeois science were essentially the same, pursuing the same goal of of domination of Nature and enslavement of men. As Hannah Arendt has shown [38], the scientific enterprise stands by nature, outside our humanity. So that it will pursue its course, blind to its destructive consequences. This enterprise deals with entities that do not belong to the world that has shaped us as humans, and to do so, it has to use a special langage, mathematics. To take one example : Einstein's paradox of twins aging differently, because one twin is travelling at light speedlight while the other remains on earth is only comprehensible with the mathematical tongue.

While Arendt has a point about the inner dynamic of science, she neglects that scientists have to solve the problems of the « society » they live in. They are part of this society, and as such are submitted to its power structure. What are then the problem of « society », if not the problems that confront the ruling class ? The problem that scientists have to solve are the problems that the ruling class wants to be solved. And it wants them to be solved in such a way that solutions will increase its profits and social control over society, not in a way that will increase our autonomy and liberties. Thus, science has always worked for the military. I do not know any important innovation that is not linked to the military, from ready-to-wear clothe to nuclear power, internet or computers. After all, one should not forget that Galileo was working next to the most important arsenals of the Renaissance, Florence and Venice at a time when it was of growing relevance that cannon bullets reached their destination.

In spite of Hannah Arendt's argument, I think another science is possible, one that would serve not the ruling class, but one that would promote our liberties and our autonomy. I would define it as agronomy, or agroecology : the science and art of a friendly cooperation with Nature to make it do gratis, for free, what the our capitalist agro-industrial complex does with industrial oil based inputs, fertilizers, irrigation, pesticides, machinery that are economically, socially, and environmentally, ruinous.

Here is an example of such a science. [39]

In Kenya, maize is attacked by an Asiatic stem borer and by Striga, a plant that wraps itself around the maize roots systems and parasites it. The stem borer and Striga can destroy entire fields. The cow-boy methods of industrial agriculture – pesticides and herbicides – were unable to control these scourges.

The International Center in Insect Physiology and Ecology (ICIPE) was set up in 1970 to develop ecological methods to control pests and weeds. After studying and testing hundreds of plants associations practiced by peasants, Icipe researchers deviced a « push-pull » method consisting in growing Desmodium, a leguminous plant, in combination with maize. Desmodium has an unpleasant odor for the moth of the corn borer and repels it (the « push » part). The « pull » part consists in surrounding the maize field with Elephant grass (Pennisetum purpureum), a very good fodder grass which is also very attractive for the corn borer moth which lay its eggs on it. After the first stages of development, the young caterpillars bore into the stem, where most of them are destroyed by the mucilage produced by the Elephant grass. The Asian corn borer is thus controled. As to Striga, it does not grow in the presence of Desmodium. Third, this association is an agronomist's dream : it associates a legume plant (that fixes the nitrogen of the air) with maize, a plant that requires nitrogen. And last, Desmodium protect the fragile soils against erosion and the sun.

This wonderful scientific work was done with the participation of farmers. It assures them a bountiful and stable maize crops without insecticides, herbicides and fertilizers. Farmers increase their cattle, the droppings of which contribute to increase soil fertility. Higher incomes make it possible to send children to school.

The welfare of Kenyan peasant farmers increases.

But GDP (the commodified part of the economy) and profit decrease.

In a capitalist world, this is truly catastrophic: under pressure, the Kenyan government has authorized Ppccs.

Starving Kenyan populations is all right, so long as profits increase.

Box 1

Maize is cross pollinated because the male flower (the tassel) on top of the plant is separated from the female flower on the stem. Pollen is carried away by wind and insects. A maize plant inherits different characters from its two parents. It is, in the genetic vocabulary, heterozygous. Shull imagined that a heterozygous corn plant such as A1A2 B3B1 C2C3... (A1, A2, …An being the various versions or alleles of genes A ; B1, B2, … Bn, the alleles of gene B, etc.) resulted from crossing the two "pure" (homozygous) lines A1A1 B3B3 C2C2... and A2A2 B1B1 C3C3... These pure lines can be cloned by growing them in isolated fields to prevent contamination by foreign pollen. The next step is to grow the two pure lines side by side and to castrates one of them by pulling off the male flower. This castrated "female" (seed-bearing) plant will be pollinated by the "male" pure line. The last step is to harvest the cloned seeds A1A2 B3B1 C2C3... on the female plant.

How is the breeder to obtain the pure lines A1A1 B3B3 C2C2... and A2A2 B1B1 C3C3... ? The question has no answer. However, Shull found a method that apparently escaped the difficulty. It was founded on Mendel's law of segregation which had just been « rediscovered » in 1900. This law states that self-fertilization halves the percentage of heterozygozity. After six (6) generations of self-fertilization of maize, only 1/26 (1,4 %) of the genes originally in the heterozygous state remain so. The breeder has then a set of different depressed « pure lines » which he crosses two by two to obtain clones made up of ordinary maize plants, no more no less « hybrid » and vigourous than any plant randomly extracted from the original variety. The last step is to test the clones for several years to select the best and replace the variety.

The 6 generations of self-fertilization generate an astronomic number of pure lines and crossing them two by two squares this astronomic number. Since two depressed « pure lines » can combine into a good clone, no selection is possible until clones have been extracted and tested. For cost reasons, only a very small number of lines can be randomly extracted. 100 lines, an extremely small number, generates 4 950 clones that have to be tested in several location for several years. Shull's cloning is impracticable.

Briefly stated, Shull's method is long, costly, unlikely. Moreover, it runs against the two basic tenets of selection. « Breed from the best » and « likes engenders like »…

[1] March 4, 1806 – September 26, 1895

[2] American Breeder's Magazine, 1910, pp. 230, 242.

[3] US patent number 5,723,765 granted to the US Department of Agriculture (that is public research !) and Delta and Pine Land Co., a private cotton seed company.

[4] This pedigree system assumed that the value of an individual was due to his ancestry, to his belonging to a line founded by some distant ancestor. At the end of the nineteenth century, the bourgeois utilitarism revolted against the inefficiency of this aristocratic breeding system. Cf. on internet my piece « Sélection aristocratique et sélection bourgeoise : de la lutte des classes dans les pratiques de sélection des animaux ».

[5] Of course, such a reduction is absurd. But a quarter century of heavy scientific propaganda about the « 8th day of the creation », the « code of code », the « great book of life » etc., have from an ideological and symbolic perspective have removed any respect for life from the mind of our contemporaries.

[6] I leave outside the question of human reproduction. It will follow the same path as animal and plant reproduction. If State eugenism so popular during the interwar period is now discredited, it is being replaced by its liberal version, eugenic consumerism.

[7] The Wheat Plant. London, Duchworth and Co., p. 78, 1921.

[8] Percival, ibid.

[9] EvMerhed, H. Improvement of the plants of the farm , J. Roy. Ag. Soc., 45, 77-113 (1884).

[10] Le Couteur, J. On the Varieties, Properties, and Classification of Wheat. London, W. J. Johnson, p. 42 (1836).

[11] Ibid., p. 44

[12] Jean-Pierre Berlan and Lewontin Richard C., Plant breeders rights and the patenting of life forms, Nature, 322:788-791, 1986.

[13] The UPOV system is threatened by patents which offer a much better protection to the death science industry. It is getting closer and closer to the patent system. This is a matter of survival for the bureaucrats in charge of administrating UPOV

[14] Farmers end up paying their seed one hundred times more that conventional, self-reproduced seeds.

[15] Aside from its esoteric mystery, the choice of the term « hybrid » rather than cross, is another deceit. « Hybrid » has a … ‘hybrid' origin. It comes from Latin « hibridus » of mixed blood, and from Greek « hubris » exuberance. It carries the idea that mixing « bloods » bestowed upon the offsprings some favorable charaters. Nineteenth century biologists were careful to reserve the term « hybrid » to crosses between species – thus, the mule is a hybrid between a mare and a donkey. The notion of species being rather vague, it was used to designate crosses between plants carrying some obvious differences such as in Mendel's famous pea experiments.

[16] Corn breeding was not based on the isolation method. In any case, the La Gasca/Le Couteur « isolation methods » formulated some 70 years earlier were long forgotten. In fact, Shull had discovered them reading de Vries' 1907 book Plant Breeding. At the very end of his1908 article, he cited it incidentally among a few other articles as if of negligible relevance. By belittling De Vries' « little book » (his words (Shull, 1908 p. 301. The book is 370 pages long !) which had given him the idea of his revolutionary proposal, Shull blows up his own stature.

[17] Shull, G. The composition of a field of maize. Am. Breeders' Ass. Rep., 4, 296-301 (1908).

[18] Loss of vigor during inbreeding and recovery of vigor when « pure lines » are crossed can be accounted for by a simple Mendelian model based on the well documented phenomenon of partial dominance. There is no need to postulate an intrisinc superiority of the heterozygous state. Cf. Richard Lewontin and Jean-Pierre Berlan, The political economy of Agricultural Research In C. R. Carroll, J. H.Vandermeer e P. M. Rosset (orgs.), Agroecology (Nova York, McGraw Hill, 1990).

[19] Slull's theorising launched geneticists and breeders in the vain search for a causal mechanism explaining the intrisic superiority of the heterozygous state. So more so that in 1914, Shull forged the mystifying and esoteric word « heterosis » to designate « hybrid vigor ».

[20] The observation that maize yield increased after « hybrid varieties » were introduced in the US and have approximately quadrupled since then does not infirm this conclusion more than the observation of the sun rotating around the earth infirms that the contrary is true. Genetics and breeding seem in this matter to be in a pre-Galilean state. Leaving aside the statistical nonsense of estimating the respective contribution of the interacting factors (fertilizers, machinery, irrigation, lime, breeding etc.) to yield gains, maize varieties were improved by conventional mass selection, and obviously, improved clones were extracted from these improved varieties ! « Hybridization » – i.e., cloning -, did not contribute significantly to yield gains.

[21] In a letter of Shull to East, a rival biologists who disputed his priority on the discovery of the cloning method. February 1909, in Jones, D. Biographical Memoir of Edward Murray East, National Academy of Science, Bibliographical Memoirs, XXIII, ninth memoir, p. 224 (1945)

[22] During the first part of the twentieth century, almost all geneticists were involved in the eugenic movement and in racist theorizing.

[23] Z. Griliches very famous and very celebrated articles on the benefit/cost of agricultural research and on the diffusion of innovations in the US deal with « hybric corn ». Once again, it is striking that no one has realized that these articles are founded on an elementary mistake : farmers and breeders/seedmen do not trade an abstraction, namely yield gains per acre, but they trade bushels of seed. Focussing on the commodity traded debunks these two wonderful pieces of apologetics of capitalist science and technology.

[24] East Saint-Louis has the dubious priviledge of being one of the most polluted area of the US. It is where Monsanto factories were located.

[25] The genetic industrial complex was aware of this and managed in North America to avoid any kind of labelling of transgenic food.

[26] At first, a pesticide works. Insects disapear, weeds are destroyed. Farmers are elated. But plants and insects become tolerant or resistant. Doses must increase. And when the pesticide drug does not work anymore, a new class of pesticides, more potent, must be introduced.

[27] Crop losses have remained at the same level in the US during the last forty of fifty years although the quantitit of pesticides have been multiplied forty times or more.

[28] Bastiat, F. 1845. Petition of the candlemakers against the unfair competition of the Sun, Paris, Harmonies economiques. Frederic Bastiat (1801-1850), journalist and economist, was fighting under the banner of liberalism against protectionism.

[29] Lewontin R. The doctrine of DNA. Biology as ideology, Concord (Ontario), House of Anansi Press, 1991

[30] Lily E. Kay The molecular vision of life, Caltech, the Rockefeller foundation and the rise of the new biology, , Oxford, Oxford University Press, 1993.

[31] Rockefeller Foundation, Annual report 1938, quoted in Kay, op. cit , p. 49.

[32] A paradigm is the set of assumptions taken for granted and remaining implicit within which a scientific field develops until ‘anomalies' undermine it until its downfall.

[33] For a detailed explanation, cf. Commoner B., Unraveling The Dna Myth. The spurious foundation of genetic engineering, Harper's Magazine, Feb 2002. The sequence hypothesis states that the sequence of nucleotides determines exactly the sequence of aminoacids of a protein while the « central dogma » states the transfer of information (that is the exact sequence of the amino-acids) is only from nucleic acid to protein (and from nucleic acid to nucleic acid) and not from protein to nucleic acid (nor from protein to protein). Crick expressed his ideas at the 1957 Symposium of the Society of Experimental Biology. They appeared under the title « On protein synthesis » in 1958 in the acts of the symposium (New-York, Academic Press).

[34] Crick F.H.C. The Central Dogma of Molecular Biology. 1970, Nature 227:561-563 (see page 563).

[35] Cf. Lewontin R. Biology as ideology, Concord (Ontario), House of Anansi Press, 1991.

[36] Commoner Barry, op. cit.

[37] Up to 38,016 variant proteins in the case of the fruit fly

[38] Arendt Hannah. 1961. La conquête de l'Espace et la condition de l'homme, last chapter of La condition de l'homme moderne, (traduction), Paris, Calmann-Levy, 339 pp.

[39] From the film Organic Research, An African success story, made by Florian Koechlin, Blueridge Institute, Basel, 2000.

Who Pays For the Public Domain?

Anupam Chander , Madhavi Sunder — 2008-12-14T16:46:24Z

Connaissances en communs
Knowledge Commons
Sommaire/ContentsAnupam Chander, University of California, Davis - School of Law

Madhavi Sunder, University of California, Davis - School of Law

In 1848, the Great Mahele established fee simple rights in Hawaiian land, dividing that land among the king and chiefs.[1] Two years later, a statute granted the common people who worked the land the right to apply for title.[2] At the same time, the ban on the sale of land to foreigners was lifted in order to attract foreign capital.[3] The combination of the establishment of Western-style property rights and the sanction of sales to foreigners had a marked result on land distribution: “The land fairly quickly passed out of the hands of both [chiefs] and [commoners], reducing many to the status of landless laborers.”[4] Relatively few commoners acquired title to the land in part due to their unfamiliarity with this new system of land tenure and the difficulty of filing claims and surveying land.[5] By 1896, whites owned 57% of the land area generating taxes, and Native Hawaiians owned just 14%.[6] Today, many descendants of the native Hawaiians see the move from more communal to more private property tenure as a key to the impoverishment of their forbearers. The Mahele land division was crucial to the project of colonizing Hawaii.

For many in the developing world, TRIPS—the Agreement on Trade Related Aspects of Intellectual Property Rights[7]—is today's Great Mahele. Like the Mahele, TRIPS establishes both Western property rights and the right of foreigners to own property. To establish a property regime, TRIPS requires substantial standards of protection for intellectual property in all member states. To enable foreign ownership, TRIPS imposes national treatment obligations, requiring states to treat foreigners as equals of their own citizens. This cocktail of robust private property rights and foreign access thereto is leading to a steady transfer of the “ownership” of intellectual “products” from the developing world to the developed world.[8]

Indeed, the numbers may be more dramatic than those resulting from the Great Mahele. A 1974 United Nations study concluded that 84% of the patents granted in developing nations were held by foreigners.[9] Such disparity continues: In Sub-Saharan Africa (excluding South Africa), resident Africans received thirty-five patents in 1998, while nonresident foreigners received 741.[10] In 2001, persons from developing nations received less than 1% of patents granted in the United States.[11] Between 1999 and 2001, persons from developing nations accounted for less than two percent of patent applications received under the international system of the Patent Cooperation Treaty.[12]

Part of this story is quite familiar. It is well understood that the international legal regime for intellectual property currently favors the Western world.[13] But the role of the commons in creating and preserving global inequality is less remarked upon. Our contribution to this story is to disclose what TRIPS has deliberately left unenclosed. TRIPS has upset the balance in the global public domain. Prior to TRIPS, both West and East effectively benefited from a public domain in the other's inventions and expressions—the West, because the East did not formally protect its knowledge, and the East, because international intellectual property laws were weak and ineffective at protecting property across borders.

Medicines and pesticides do not usually spring divinely from the heads of pharmaceutical and agricultural company scientists. Companies often seek inspiration both in nature and in the knowledge developed in traditional communities, leading them to distant lands and peoples. Even a drug as commonplace as aspirin derives from the active ingredient in willow bark, salicin.[14] Indeed, aspirin is named in part for the spirea plant, which yields salicin. [15] In medicine, this search for inspiration even justifies a field, ethnopharmacology, with its own journal founded in 1979. [16] The field is premised on the belief that “[e]arly people confronted with illness and disease, discovered a wealth of useful therapeutic agents in the plant and animal kingdoms.” [17] The editors of the Journal of Ethnopharmacology note that “[m]any valuable drugs of today (e.g., atropine, ephedrine, tubocurarine, digoxin, reserpine) came into use through the study of indigenous remedies.” [18] Medicinal or agricultural innovations, held as intellectual property, often rely upon knowledge and genetic resources in the public domain.

The neem controversy offers one example of this process. [19] Indigenous to India, the neem tree is known in Sanskrit as “sarva-róga nívarini” or “curer of all ailments.” [20] The Sanskrit name suggests the myriad applications of the products of the neem tree; traditional uses include “an almost ridiculous variety of pesticidal, agricultural, medicinal, contraceptive, cosmetic and dental applications.” [21] In the 1980s, various Western countries began patenting applications of neem extracts. [22] The neem incident demonstrates that the problem of the exploitation of traditional knowledge and genetic information predates TRIPS. Indeed, TRIPS would not have affected the above account. Nor can TRIPS be held responsible for the wide disparity in patents obtained by persons in developing versus developed states.[23]

But while the neem incident offers an example of the Western world exploiting intellectual products of the East and South, we must recognize that the East and South also exploit the intellectual products of the West. Computer software, Disney films, and pharmaceutical products developed in the West have long been copied and commercialized in the developing world, often without any flow of royalties. The Western pharmaceutical giant GlaxoSmithKline, for example, alleged that it lost some $50 million in potential sales of its patented ulcer-treatment drug Tagamet because of local generic copying in Argentina and other developing countries. [24]

Developed states have, of course, long sought to thwart such copying. Copyright and patent conventions have existed for more than a century. The Paris Convention for the Protection of Industrial Property of 1883[25] and the Berne Convention for the Protection of Literary and Artistic Works of 1886, [26] both administered by the World Intellectual Property Organization (WIPO), [27] promised intellectual property holders some international protections. But for the most part, despite widespread accession, these systems of protection under the aegis of WIPO proved ineffective in practice. Developing states often failed to uphold their obligations. [28] Equally important, the copyright and patent conventions did not mandate high levels of minimum protection for intellectual property, requiring only “rudimentary” standards for patentable inventions. [29] Finally, the systems provided neither effective domestic nor international dispute resolution mechanisms for rights holders to redress violations.

The result was that, from the perspective of the Argentine drug manufacturers, the formula for Tagamet was effectively in the public domain. Generic drug manufacture has flourished in large developing countries, as has copying of other inventions.[30] This reflects a system that has been in place for many decades; the international regime governing intellectual property has been effectively one of rampant exploitation of knowledge developed in all corners of the world.

TRIPS changed this. In place of an international commons where all intellectual products were available for exploitation by all—or at least exploitation by people outside the country of origin—TRIPS mandated strict protections for intellectual property throughout all member states. [31] Developing countries initially resisted the linkage of intellectual property to trade. During the Uruguay Round trade negotiations, the developing states sought to permit maximum flexibility on the part of each state to determine the scope of protection that intellectual products might receive. [32] The developing states lost this battle: TRIPS requires a robust set of minimum standards for intellectual property. The developing countries were, however, given transition periods during which to implement most of their obligations. [33]

That TRIPS would require significant changes in developing countries became clear soon after the birth of the World Trade Organization. The very first dispute brought under TRIPS was a claim by the United States against India, classified as a developing country under the treaty, [34] for violating its obligations to provide certain patent protections.[35] Even though TRIPS entitled developing countries to extra time in which to implement some of their treaty obligations, several measures were required immediately. The United States accused India of failing to provide a mailbox system in which patents could be filed to establish an order of priority for the time when the law permitted full patentability.[36] In addition, the United States accused India of failing to offer exclusive marketing rights to the foreign patent holder. The dispute resolution body's report in favor of the United States, followed by India's subsequent amendment of its laws to conform to its obligations, demonstrated the binding power of TRIPS.

With the advent of TRIPS, the global commons of intellectual products has been radically transformed. For the developing world, the intellectual products of the developed world are to be firmly protected, on pain of loss of trade privileges. Argentina, for example, can no longer fearlessly snub Western pharmaceutical companies. But while TRIPS may make “fair followers” out of “free riders” in the developing world, [37] it leaves the developed world free to exploit the efforts and resources of the developing world, where the global commons of intellectual products remains intact. Because traditional knowledge and genetic resources in the developing world are unpatentable, at least in their raw state, such knowledge and resources remain open to exploitation. [38]

Thus, the public domain in traditional knowledge and genetic resources still remains, post-TRIPS. And this public domain is bound to be exploited asymmetrically. Why cannot companies in the developing world exploit such resources equally with companies in the developed world? After all, a company in Mumbai is likely to be more familiar with the traditional Ayurvedic system of medicine and local flora than a company in Switzerland.

Local knowledge notwithstanding, there are a number of reasons that such a disparity will be likely to obtain:

Limited local opportunities for commercialization. Because of the limited consumer purchasing power in domestic markets, companies in the developing world often find it difficult to justify the extensive investment in research and development required to transform traditional knowledge and genetic resources into patentable pharmaceutical or agricultural products. In countries such as India, Nigeria, and Ecuador, with 2002 Gross National Income per capita averaging $480, $290, and $1,450 respectively, [39] the domestic consumer base cannot afford the drug prices charged to Western publics. Here, India and Nigeria have an advantage to some extent over Ecuador because they at least have large potential domestic consumer bases, with populations of 1,032 million, 130 million, and 13 million, respectively.[40] But even so, how much could a Bangladeshi company, for instance, hope to recover even from its vast domestic population of 133 million from the sale of a drug it innovated, given an average GDP per capita of $360?[41]

Lack of extensive public investment in research. In advanced industrialized states, government-funded research programs at universities and research institutes support local companies. Governmental policy often mandates programs of technology transfer from public institutions to local enterprise. Developing nations generally do not have such extensive, publicly funded research and development programs.

Capital constraints. Weak internal capital markets across the developing world make the process of raising capital quite expensive. Given the large capital investments needed to patent pharmaceutical and agricultural products and the long time frame within which profits from the investment can be realized, high interest rates make companies in developing countries less competitive. Even where the company seeks funding through the international credit markets, it is likely to face high interest rates because rates for corporate borrowing are generally tied to those for their home state (corporate risk is thought to include sovereign risk). The fact that borrowing is quite dear, domestically and internationally, makes capital-intensive activity difficult to undertake.

Unfamiliarity. Companies in WTO Member States that are making agricultural and pharmaceutical products patentable only under the coercive force of TRIPS will not, as a matter of course, be as familiar with the patenting process for such products as are Western companies, who have long enjoyed the right to patent such products. The unfamiliarity of native Hawaiians with Western real property systems, as we have seen, disadvantaged them when it came to claiming their rights when such systems were introduced. [42] Even in the United States, patent lawyers, universities, and corporations expend significant resources to train scientists to patent inventions. Asserting exclusive rights to invention does not come naturally.

It may be offered that companies in developing countries need not restrict themselves to domestic markets. Companies in the developing world can seek buyers in the large and deep markets of the West. These companies can enjoy the protections of TRIPS as they endeavour to sell their products abroad. But this is too sanguine a view. First, these companies may find it difficult to compete with the big pharmaceutical companies of the West on their home turf, at least outside the domain of generic drugs. The big pharmaceutical companies hold the advantage of brand name recognition. Second, selling branded products in Western nations requires large outlays for advertising and for patenting, both of which are made more difficult for the company from a developing country by the capital constraints described above. Despite these odds, companies in developing countries do obtain patents both at home and abroad.[43] But cases of this sort are relatively rare, as the wide disparity between patenting by developing states versus developed states demonstrates. [44]

Indeed, the argument of the Western pharmaceutical industry in favor of strong international patent rights often implicitly relies upon this disparity in the patent-seeking capacity of companies in the developed and developing world. Only big pharmaceutical companies, they point out, have the capital and know-how to transform traditional knowledge and genetic resources into proven cures. [45] And such companies can operate only if they stand to recoup their investment through strong monopoly rights in inventions. [46]

The result is an international intellectual property regime that is sharply tilted in favour of the developed world. The intellectual products held in the developing world rest in a global public domain, while the intellectual products of the developed world are held closely by corporations. Though Indian enterprises were certainly aware of the commercial value of the neem tree, they were unable to invest the resources to patent its derivatives throughout the world. Thus, the likely beneficiaries of the public domain resources of the traditional knowledge about the properties of the neem tree and the neem tree itself are multinational companies that are capable of converting these public domain resources into valuable patentable products. As James Boyle writes, “Curare, batik, myths, and the dance ‘lambada' flow out of developing countries . . . while Prozac, Levis, Grisham, and the movie Lambada! flow in . . . .” [47] The former are unprotected by intellectual property rights, while the latter are protected. [48] In the end, the international intellectual property regime leads to a transfer of wealth from the poorer countries of the world to the richer countries. In 1999, developing countries paid some $7.5 billion more in royalties and license fees than the royalties and license fees they received, even though this year was well before the deadlines for full implementation of TRIPS obligations in the developing states.124 The U.S., by contrast, saw an $8 billion increase in its surplus of royalties and fees related mainly to intellectual property transactions between 1991 and 2001.125 It is a strange world, indeed, where technology and resources flow for free from poorer to richer states, rather than from richer to poorer.

While it is certainly not their intent, scholars' romantic portrayals of the public domain perpetuate this inequality. The romance of the public domain—the notion that when a resource is open to all by the force of law, all will be equally able to exploit it—obscures the harsh realities of a world fraught with inequality. But the trope of the romantic public domain goes even further. It offers a justification for leaving the developing world's genetic resources and knowledge in the public domain: universal benefit from a rich public domain.

[1]. Sally Engle Merry, Colonizing Hawai'i: The Cultural Power of Law 93 (2000).

[2]. Id. at 93-94.

[3]. Id. at 94.

[4]. Id. at 95.

[5]. Id. at 94.

[6]. Id.

[7]. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, art. 67, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments— Results of the Uruguay Round vol. 31, 33 I.L.M. 81 (1984) [hereinafter TRIPS]. For an overview of TRIPS, see J.H. Reichman, Universal Minimum Standards of Intellectual Property Protection under the TRIPS Component of the WTO Agreement, 91 Int'l Law. 345 (1995).

[8]. The text of the TRIPS treaty organizes three categories of development status: “developed,”“developing,” and “least developed” countries. TRIPS, supra note 82. We use the term “developing” to refer to the latter two categories.

[9]. A. Samuel Oddi, The International Patent System and Third World Development: Reality or Myth?, 1987 Duke L.J. 831, 843 n.61. [10]. Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy 22 (2002), http://www.iprcommission.org/graphi... [hereinafter IPR Commission Report]. In the United States, by contrast, the corresponding figures for residents and nonresidents in 1998 were 80,292 and 67,228, an almost equal division of patent holders between the U.S. and the rest of the world. Id.

[11]. Id. at 12. For a breakdown of United States patents by country of origin, see U.S. Patent & Trademark Office, Patent Counts by Country/State and Year, January 1, 1977 - December.31, 2001 (2002), at http://www.uspto.gov/web/offices/ac... (last visited Sept. 2, 2004).

[12]. IPR Commission Report, supra note 85, at 12.

[13]. See World Bank, Global Economic Prospects and the Developing Countries 133 tbl.5.1 (2002) (providing data that illustrates imbalance in favor of the Western world), http://www.worldbank.org/prospects/... (last visited Sept. 2, 2004).

[14]. Bayer Aspirin, 100 Years of Aspirin, at http://www.bayeraspirin.com/questio... (last visited Apr. 8, 2004).

[15]. Folk medicine has long employed this ingredient; as far back as 400 B.C., Hippocrates prescribed willow bark as a pain reliever in his medical tracts.

[16]. For a description of the Journal of Ethnopharmacology, see Elsevier, at http://authors.elsevier.com/journal... (last visited Aug. , 2004).

[17]. Id.

[18]. Id.

[19]. Contrary to the dynamics of the neem patents, the editors of the Journal of Ethnopharmacology “[r]ecogniz[e] the sovereign rights of States over their natural resources,” and observe that “ethnopharmacologists are particularly concerned with local people's rights to further use and develop their autochthonous resources.” Id. at 91.

[20]. Shayana Kadidal, Subject-Matter Imperialism? Biodiversity, Foreign Prior Art and the Neem Patent Controversy, 37 IDEA 371, 371 (1997) (internal italics omitted).

[21]. Id. at 372-73 (citations omitted).

[22]. Vandana Shiva et al., The Enclosure and Recovery of the Commons: Biodiversity, Indigenous Knowledge and Intellectual Property Rights 47-50 (1997) (listing some of the U.S. patents on neem).

[23]. See supra notes 84-87 and accompanying text. Assemblies of the Member States of WIPO, The Impact of the International Patent System on Developing Countries: A Study by Getachew Mengistie, Thirty-Ninth Series of Meetings, Geneva, at para. 1.1.2, WIPO Doc. No. A/39/13 Add.1, 6 (Aug. 15, 2003) (“In developing countries, the proportion of patent grants to foreigners tends to be much higher than patents granted to their own nationals.”)

[24]. See Oddi, supra note 84, at 845.

[25]. Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, 13 U.S.T. 2, 828 U.N.T.S. 107.

[26]. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, 102 Stat. 2853, 828 U.N.T.S. 221.

[27]. For a discussion of the role of these conventions and of WIPO on international intellectual property protection, see Lawrence R. Helfer, Adjudicating Copyright Claims Under the TRIPS Agreement: The Case for a European Human Rights Analogy, 39 Harv. Int'l L.J. 357, 366-67 (1998).

[28]. For example, at crucial times in its own history, the United States ignored the intellectual property claims of foreign states as it freely appropriated from the store of foreign creativity and knowledge. Cf. IPR Commission Report, supra note 85, at 18.

[29]. J. H. Reichman, Universal Minimum Standards of Intellectual Property Protection Under the TRIPs Component of the WTO Agreement, in Intellectual Property and International Trade: The TRIPs Agreement 21, 29 (Carlos M. Correa & Abdulqawi A. Yusuf eds., 1998).

[30]. Martin J. Adelman & Sonia Baldia, Prospects and Limits of the Patent Provision in the TRIPS Agreement: The Case of India, 29 Vand. J. Transnat'l L. 507, 510, 524-32 (1996) (describing how the lack of pharmaceutical patent protection in developing countries like India enabled developing countries to take advantage of technology developed elsewhere).

[31]. TRIPS, supra note 82, at arts. 9-40.

[32]. Christopher May, A Global Political Economy of Intellectual Property Rights 87 (2000).

[33]. TRIPS, supra note 82, at arts. 65-66; see also World Trade Organization, Press Release, WTO Council approves LDC decision with additional waiver, http://www.wto.org/english/news_e/p... (providing for an additional waiver for obligations of least developed countries until January 1, 2016).

[34]. See supra note 83 for a description of classification system.

[35]. WTO Appellate Body Report on TRIPS: India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, AB-1997-5, WTO Doc. No. WT/DS50/AB/R (Dec. 19, 1997), http://www.wto.org/english/tratop_e....

[36]. Id.

[37]. J. H. Reichman, From Free Riders to Fair Followers: Global Competition Under the TRIPS Agreement, 29 N.Y.U. J. Int'l L. & Pol. 11, 16 (1996-97) (asserting that, with the perpetuation of the protectionist trend in developed countries, developing countries can create a competitive edge by adopting a pro-competitive strategy in implementing the minimum standards of TRIPS to become “fair followers in the worldwide quest for technical innovation”).

[38]. The same is true, of course, of traditional knowledge and genetic resources in the developed world, but given their limited reach and resources it is unlikely that companies in the developing world would be the first to exploit such knowledge and resources.

[39] World Development Report 2004: Making Services Work for Poor People 252 (2003).

[40]. Id.

[41]. Id.

[42]. See supra notes 1-6 and accompanying text.

[43]. See Gardiner Harris & Joanna Slater, Bitter Pills: Drug Makers See ‘Branded Generics'Eating Into Profits, Wall St. J., Apr. 17, 2003, at A1.

[44]. See supra notes 9-12 and accompanying text.

[45]. See Nadia Natasha Seeratan, Comment, The Negative Impact of Intellectual Property Patent Rights on Developing Countries: An Examination of the Indian Pharmaceutical Industry, 3 Scholar 339, 378-79 (2001) (presenting the Western pharmaceutical industry's viewpoint that without strong patent protection developing countries would unfairly profit from the research done by developed countries).

[46]. Id.

[47]. Boyle, supra note 22, at 125.

[48]. Id.

This article is an extract of "Romance of the public domain", which was initially published in the California Law Review [Vol.92:1331 2004] It is published under a Creative Commons licence.