The Collision of Technology, Intellectual Property and Cultural Survival  

Biocolonization
Property law has evolved most completely by virtue of startling new technologies.[1]  From plants to people to what we call “information,”[2] the horizon line that once upon a time restrained our awareness of the end of landscapes of physical and ephemeral things has been expanded.  Science and engineering have made us jump quickly into new legal and ethical understandings of just what it is we call property and what its attendant rights to ownership are in a globalized, free-market economy.  We are now genetically manipulating animals for research; human cells and genes have been patented;[3] the meat we eat may contain genes from humans; the plants we eat may contain genes from fish; in Third World countries, kidneys, eyes and skin are sold in a flourishing market for body parts.[4]  If humans are to colonize biology -- biocolonization -- what questions are we supposed to ask and then answer?[5]  Should we alter the genetic structure of the entire living kingdom in the name of utility or profit?  Is there a limit to the number of types of human genes that should be allowed to be engineered into other animals?  Should the generic integrity of the biotic community be preserved?  Is there something sacred about life or should life forms, including the human body and its parts, be viewed simply as commodities in the new biotech marketplace?  Is the genetic makeup of all living things the common heritage of all or can it be appropriated by corporations and governments?[6]

            In trade-related intellectual property agreements (TRIPS),[7] can we ask/demand other cultures to answer these aforementioned questions in the same way that a western mind would answer them?  Is there an assumption that the local use of a naturally occurring biological substance does not create wealth but waste, and that wealth is created only when corporations commercialize the resources used by local communities?[8]  When a transnational corporation goes bioprospecting[9] in indigenous communities for plants or for the DNA from these plants and the DNA from the indigenous peoples living there,[10] what are the prospectors’ obligations to those societies including understanding how knowledge is constructed, valued and held, the successful negotiation of the panoply of issues surrounding informed consent, and the appropriateness of and/or manner of compensation?[11]  Can we respect the finality of an indigenous community’s rejection of an offer to privatize their human heritage?  Do indigenous cultures have the power to say “no”?[12]  Who constitutes the decision-making authority within indigenous societies?[13]

Genetic Rights
The marriage of genes and computers has propelled us into the biotech century.[14]  Genetic engineering is really a double misnomer.  It moves genes but it’s not about genetics.  Its engineering implies an understanding of the causal mechanisms that link actions to effects.  But nobody understands the mechanisms by which genes, interacting with each other and the environment, express traits.[15]  And transgenic manipulation inserts foreign genes into random locations, for example in a plant’s DNA, to see what happens.  That’s not engineering; it’s the industrialization of life by people with a narrow conceptualization of it.[16]  Will the laboratory replace nature?[17]  Issues of control, piracy of the necessary genes from nature, genetic pollution, genetic discrimination[18] and commercial eugenics[19] are all disturbing.  In a society that is beginning to consider life as perfectible by engineering standards, the real casualty of all this is a loss of empathy; how empathetic are we likely to be to any child growing up that does not conform to the homogenized standards our companies and engineers have set up?  We are changing the criteria for what it means to be normal by advancing technologies for genetic selection and altering the natural course of evolution in a radically accelerated timeframe.[20]

            Bill McKibben describes a dangerous world in which genetic engineering could potentially make it possible for people to enhance their children’s intelligence, height, looks and even athletic ability.[21]  The danger lies not only in a future in which all human beings may be genetically programmed to possess certain abilities, but also in the fact that it will become a vicious, never-ending cycle.  Those parents with a child of IQ of 150 may be satisfied in the beginning, but ultimately disappointed and unhappy because the next batch of children could be manipulated to have an IQ of 170.  What types of laws will we need to create to prevent discrimination from the “enhanced” human toward the “normal” human?[22]  Should there be an end to gene patents?[23]  Should genetic materials be made part of the commons and placed into collective patent banks?[24]  We must be asking, as well, what extraordinary advantages have resulted from the privatization of genetic patents?[25]  “How much cultural shift would it take to persuade people to snort a line or two of transgenic bacteria to ward off the flu?  ***  If the arsenal for disease prevention continues emptying, the decision will become more focused:  how do you weigh the fears of knowingly disrupting our own natural habitat with transgenics versus the fear of taking no action in the face of new epidemics?”[26]

 


                [1]See Generally The Environment and Technology: On the Precipice or In the Crevasse?; discussion of Carol Rose’s articles in Marc R. Poirier, Property, Environment, Community, 12 J. Envtl. L. & Litig. 43 (1997).

                [2] See John Perry Barlow, Selling Wine Without Bottles: The Economy of Mind on the Global Net, http://www.eff.org/IP/idea_economy.article (describing the shift from physical property rights to what might be called electronic intellectual property rights).

                [3] Stefan, Lovgren, One-Fifth of Human Genes Have Been Patented, www.nationalgeographic.com/news/2005/10/1013_0501013_gene_patent.html; Michael Crichton, Patenting Life, February 13, 2007, www.commondreams.org/cgi_bin/print.cgi?file=/views07/0213-25.htm.

                [4]Andrew Kimbrell, Bicolonization, in The Case Against the Global Economy at 141-144 (Jerry Mander & Edward Goldsmith eds., 1996).  See also Michele Goodwin, The Body Market: Race Politics & Private Ordering, 49 Ariz. L. Rev. 599 (2007).

                [5] The questions that follow in the text are recited verbatim from Andrew Kimbrell’s article, id.  See also Richard Lewontin, Genes in the Food, http://www.nybooks.com/nyrev/WWWarchdisplay.cgi?20010621081R, and Richard Lewontin, After the Genome, What Then?, www.nybooks.com/nyrev/WWWarchdisplay.cgi20010719036F.

 

                [6] See Antonio Regaldo, The Great Gene Grab, Technology Review, Sept./Oct. 2000.

                [7] Agreement on Trade-Related Aspects of Intellectual Property Rights, http://www.wto.org/english/tratop_e/trips_e/t_agm0_ehtm; see Vandana Shiva, North-South Conflicts in Intellectual Property Rights, 12 Peace Review 501 (2000).

                [8] See Vandana Shiva and Radha Holla-Bhar, Piracy by Patent: The Case of the Neem Tree, in Mander 147.   See also Captain Hook Awards for Biopiracy, www.captainhookawards.org.

                [9] “Bioprospecting involves searching for, collecting, and deriving genetic material from samples of biodiversity that can be used in commercialized pharmaceutical, agricultural, industrial, or chemical processing end products.”  Bioprospecting – Fact Sheet, http://hawaii.gov/lrb/rpts06/bioconfs.html.

                [10] Pacific Island’s Rpt., Nov. 2000; Cori Hayden, When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (2003); Shane Greene, Indigenous People Incorporated? Culture as Politics, Culture as Property, in Pharmaceutical Bioprospecting, 45 Current Anthropology 211 (2004).

                [11] See Paul Heald, The Rhetoric of Biopiracy, 11 Cardozo J. Intl’l & Comp. Law 519 (2003); Charles R. McManis, Intellectual Property, Genetic Resources and Traditional Knowledge Protection: Thinking Globally, Acting Locally, 11 Cardozo J. Intl’l & Comp. L. 547 (2003); Graeme Austin, Re-Treating Intellectual Property? The WAI 262 Proceeding and the Heuristics of Intellectual Property Law, 11 Cardozo J. Int'l & Comp. L. 333 (2003). ; Kerry ten Kato & Sarah Laird, The Commercial Use of Biodiversity: Access to Genetic Resources and Benefit Sharing, Earth Scan Pub. (1999); Darrell Posey, Intellectual Property Rights and Just Compensation for Indigenous Knowledge, 6 Anthropology Today 13 (1990); Michael Halwood, Indigenous and Local Knowledge in International Law: A Preface to Sui Generis Intellectual Property Protection, 44 McGill L. J. 953 (1999); Kuel-Jung Ni, Legal Aspects of Prior Informed Consent on Access To Genetic Resources: An Analysis of Global Lawmaking and Local Implementation Toward an Optimal Normative Construction, 42 Vand. J. Transnat’l L. 227 (2009); Steven M. Rubin and Stanwood C. Fish, Biodiversity Bioprospecting: Using Innovative Contractual Provisions to Foster Ethnobotanical Knowledge, Technology, and Conservation, 5 Colo. J. Int’l Envt’L. L & Pol’y 23 (1994).  See also additional references in Globalization and Its Special and Significant Impacts on Indigenous Communities.

                [12] Please see the text here, for a larger discussion on the wherewithal of Indigenous communities to object to outsiders’ attempts to exploit or harvest biotic, and hence traditional, property from that culture.  See Craig Benjamin, Biopiracy and Native Knowledge: Indigenous Rights on the Last Frontier, Native Americas 22, June 1997; Michael A. Gollin, Biopiracy: The Legal Perspective, www.actionbioscience.org/biodiversity/gollin.html; Mario Osava, Creating a Network Against Biopiracy, March 28, 2006, www.commondreams.org/cgi_bin/print.cgi?file=/headlines06/0328-09.htm; Martin Khor, A Worldwide Fight Against Biopiracy and Patents on Life, www.twnside.org.sg/title/pat-ch.htm; Europe Pacific Solidarity Bulletin, Human Rights Movement Condemns Research in Tonga, www.antenna.nl/ecsiep/bulletin/bull8-4/6.html;  Amy Harmon, DNA Gatherers Hit a Snag: The Tribes Don’t Trust Them, NY Times, December 10, 2006, Sec. A., p. 1.

                [13] See, e.g., Graham G. Watkins & Maureen A. Donnelly, Biodiversity Research in the Neotropics: From Maureen Conflict to Collaboration, 154 Proc. Acad. Nat. Sci. Phila. 127 (2005)/

                [14] Jeremy Rifkin, The Biotech Century:  Harnessing the Gene and Remaking the World (1998).

                [15] Craig Holdrege & Steve Talbott, The Questions Science Won’t Ask, Orion, 24 (2006).

                [16] Jeremy Rifkin, The New Genetic Rights Movement: Resisting Life as a Commodity, Lapis, Issue 14.  See also Symposium: Biotechnology and the Law, 32 McGeorge L. Rev. 85 (2000); Alan Buchanan, From Chance to Choice:  Genetics and Justice (2000).

                [17] Id.

                [18] What happens if you are doing genetic screening prior to birth and it shows a potential that the child will develop a genetic defect and will require medical care in the future?  What if your insurance company agrees to pay for an abortion but not for the medical care for the life of the child as the expense was preventable by terminating the pregnancy?  See Eric Rakowski, Who Should Pay for Bad Genes?, 90 Cal. L. Rev. 1345 (2002).  Could your child sue you for bringing her/him into the world destined to be debilitated, infirm and in pain?  P.L. 10-233, 122 Stat. 881 (Genetic Information Non-Discrimination Act of 2008).

                [19] See Bill McKibben, infra at note 21; Armand Marie Leroi, Eugenics in the Womb, The Atlantic 36, April 2007; Amy Harmon, Genetic Testing + Abortion = ???, NY Times, May 13, 2007, Sec. 4, p. 1; Elizabeth Weil, A Wrongful Birth?, NY Times Mag. 48, March 12, 2006. See also Population.

                [20] Of course, we do this much slower and non-genetically already -- cosmetically -- in a myriad of ways:  See Special Report: Here Comes the Super Human: How Science Will Help Us Live Longer, Smarter, Stronger, Popular Science, September 2005; Bonnie Zylbergold, The End of Natural Beauty, October 5, 2007, www.alternet.org/module/printversion/64439; Ron’s Angels Egg Auction, www.ronsangels.com/auction.html; Sperm Auction, www.ronsangels.com/sperm.html; Cryos International Sperm Bank, www.cryos.dk; The Swan (textelevision broadcast 2004); Dr. 90210 (E! television broadcast 2009); Kim Erickson, Drop-Dead Gorgeous: Protecting Yourself from the Hidden Dangers of Cosmetics (2002); Philip Lee Miller, Life Extension Revolution: The New Science of Growing Older Without Aging (2006); Jonathan Watts, A Tall Order, Guardian, December 15, 2003, available at http://www.guardian.co.uk/world/2003/dec/15/gender.uk (describing limb lengthening in China); Come Up To Beauty, www.ronsangels.com (bidding on eggs from “beautiful” women).

                [21] Bill McKibben, Designer Genes, Orion 20, May/June 2003.  See also Michael J. Sandel, The Case Against Perfection, The Atlantic 51, April 2004; N. Schichor, J. Simonet and C. Canano, Should We Allow Genetic Engineering? A Public Policy Analysis of Germline Enhancement, Developmental Biology, www.devbio.com/article.php?id=172; Brian Tokar, Redesigning Life: The Worldwide Challenge to Genetic Engineering (2001); Bill McKibben, The Posthuman Condition, Harper’s Magazine 15, April 2003; Richard Hayes, In the Pipeline: Genetically Modified Humans?, Multinational Monitor, www.ratical.org/co-globalize/mmGMhumans.html; Next News, Should Genetic Modification on Children Be Banned, US News & World Report, www.usnews.com/usnews/tech/nextnews/archive/next040526.htm; Genetics and Society, Inheritable Genetic Modification, www.genetics-and-society.org/technologies/igm/arguments.html; Maxwell J. Mehlman, Wondergenes: Genetic Enhancement and the Future of Society (2003); Masha Gessen, Blood Matters: From Inherited Illness to Designer Babies, How the World and I Found Ourselves in the Future of the Gene (2008); Colin Gavaghan, Defending the Genetic Supermarket (2007); Maxwell J. Mehlman and Kirsten M. Rabe, Any DNA to Declare? Regulating Offshore Access to Genetic Enhancement, 28 Amer.J.L. & Med. 179 (2002); Andy Miah, Engineering Greater Resilience or Radical Transhuman Enhancement, Studies in Ethics, Law, and Technology, Berkeley Electronic Press, www.bepress.com/self/vol2/iss1/art5/?sending=10127; Gene Watch, www.gene-watch.org; Casey Walker, Interview with Richard Hays, Wild Duck Review,  May 31, 1999, available at http://www.geneticsandsociety.org/article.php?id=3078; Designer People, E Mag., Jan./Feb. 2001; Worldwatch Publication: Beyond Cloning: The Risks of the Rush to Human Genetic Engineering and the Larger Agenda of the Human Biotech Industry, Worldwatch, July/Aug. 2002.  But see e.g., Why Get Treated with BOTOX Cosmetic?, http://www.botoxcosmetic.com/why_try_botox/index.aspx;  cf. Ann Hulbert, The Prodigy Puzzle, NY Times Mag. 64, November 20, 2005.

                [22]  See Lee Silver, Remaking Eden (1998).

                [23] Mary Breen Smith, An End to Gene Patents?  The Human Genome Project Versus the United States Patent and Trademark Office’s 1999 Utility Guidelines, 73 U. Colo. L. Rev. 747 (2002).

                [24] Janet Hope, Biobazaar, The Open Source Revolution and Biotechnology (2008); Vandana Shiva, Monocultures of the Mind: Perspectives on Biodiversity and Biotechnology (1993).  However, some argue that patents are needed to encourage the development of biotechnologies.  See, e.g., Andrew J. Fletcher, et al., Principles and Practice of Pharmaceutical Medicine (2002); Leon Kass, Change and Permanence: Reflections on the Ethical-Social Contract of Science in the Public Interest, 17 In Vitro 1091 (1987).

                [25] Pamela J. Smith, Patent Rights and Trade: Analysis of Biological Products, Medicinals and Botanicals, and Pharmaceuticals, 84 Am. J. Agric. Econ. 495 (2002) (arguing that patents strengthen the market power of U.S. drug companies); Sally Smith Hughes, Making Dollars Out of DNA: The First Major Patent in Biotechnology and the Commercialization of Molecular Biology, 1974-1980, 92 ISIS 541 (2001).

                [26] Jack Hill, “7. Case Study: Chagas’ Diease; Location: Guatemala; Building a Better Bloodsucker,” N.Y. Times Magazine, May 6, 2001, available at http://www.nytimes.com/2001/05/06/magazine/7-case-study-chagas-disease-location-guatemala-building-a-better-bloodsucker.html?pagewanted=all.  See also Ronald J. Maynard, Controlling Death: Compromising Life: Chronic Disease, Prognostication, and the New Biotechnologies, 20 Med. Anthropology Q. 212 (2006).