Clark Wolf, Director of Bioethics, Iowa State University
Efforts are underway to insure that patents and other intellectual property (IP) protections will become more effectively international. The World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) have both urged developing nations to develop intellectual property rules similar to those of Europe and the United States. But is it in the interest of developing nations to adopt such rules? Or is it rather in our interest that they adopt such rules?
In one view, strong intellectual property rules spur innovation and provide an incentive for innovators to transfer their products internationally. So the stronger the protection for patents and other forms of IP, the stronger the incentive to develop valuable new technologies and the more likely it will be that these technologies will be widely available. The longer the period required to develop a new product and the greater the costs associated with research and development, the more likely it is that the work simply will not be done unless those responsible for its accomplishment can reasonably hope to regain their investment. Patents and other forms of IP protect the rights of inventors (or the rights of those who provide financial support for research), who can recoup their investment if they produce a valuable and patentable product.
In another view, stronger IP rules can result in slower rates of technology transfer, since those who need new technologies often cannot purchase them. For example, many relatively impoverished citizens of developing nations are unable to purchase life saving medical care or more productive crop varieties because the drugs or seeds are patent protected and expensive. While many pharmaceutical and seed companies have special pricing policies for consumers in the developing world, poor patients and farmers are often unable to purchase what they need.
In the standard analysis, a good system of IP should strive to balance these two goals. But recent research has focused on the competing interests that different nations may have with respect to global and international rules governing IP. In particular, several scholars have suggested that it may be in the interest of developing nations to adopt weaker national protections for IP that is exported from the developing world.
Consider the case of boll-resistant cotton in the Indian state of Gujarat. In 2001, cotton farmers in Gujarat were struck with a plague of bollworms, which wiped out a substantial portion of the crop. But some farmers, who had purchased a cotton variety known as Navbharat 151 from a seed company run by D. B. Desai, had no trouble with bollworms. Tests later showed that Navbharat 151 contained Monsanto’s patented Bt gene. Desai has been charged for selling genetically modified seeds without approval from India’s Genetic Engineering Approvals Committee, but he has not been charged with patent violation.
Navbharat 151 may be a biotech equivalent of the music, books, and software that are “pirated” in many countries around the world. But this is not ‘piracy’ in any legal sense, since Monsanto’s patent was not valid in India. And, by all accounts, the results for Gujarat cotton production have been positive. “Yields are up, pesticide use is down,” reports Andrew Leonard, in a recent article in Salon magazine. And Leonard reports that descendants of Navbharat 151 are in continuous use:
“As farmers are wont to do, they saved their seeds, and discovered that the second generation was also resistant to bollworm depredation. Some even experimented with interbreeding the Navbharat 151 genetic line with other strains of cotton particularly suited to Gujarat conditions, and came up with new strains that proved effective. Local seed companies sprang up to commercialize the descendant breeds. And even though Mayhco-Monsanto has since been allowed to sell its own cotton seeds, the local bootlegged versions have proved more popular. And why not? According to reports, they're much cheaper, and, from the point of view of local farmers, perform as well or better than the ‘official’ alternatives.”
Leaving aside, for the moment, concern about the unregulated release of a GM crop, should we think that Desai did anything wrong by using Monsanto’s product without permission or license? Since no license was required by law, Desai committed no crime against Monsanto, so if we judge that his actions were wrong, we must argue that they were morally wrong, not legally wrong.
A similar question comes up from the perspective of the Indian legislature: Are there good reasons for India to adopt standardized intellectual property rules that would prohibit the importation of agricultural products that are patented elsewhere? It would seem that India gains the benefits of the product without paying the costs if it permits farmers to import inventions from abroad.
The suggestion that India might benefit from such “piracy” will not sit well with many people who devote their energy and creativity to research on biotechnology and agricultural innovation. But in earlier times the United States actively promoted the importation of technology from abroad and even gave patents to the importer that would supersede any claims of a foreign inventor. Doron Ben-Atar’s recent book Trade Secrets (Yale, 2004) documents the legal “piracy” of European invention by Americans in the early years of the Republic. By issuing such “patents of importation,” the US was able to increase the rate of technology transfer and industrial development. Can we consistently deny presently developing nations the right to do the same thing?
If we would urge, like the WIPO and the WTO, that India and other developing nations should adopt stronger rules to protect intellectual property in agricultural biotechnology, can we argue that it is in their interest to do so? Or do such laws actually promote our own interests and more broadly align with the interests of people in developed nations where most of the research is done?
Ben-Atar, Doron S. 2004. Trade Secrets: Intellectual Piracy and the Origins of American Industrial Power. New Haven: Yale University Press
Leonard, Andrew. 2007. “Napster Pirates of Transgenic Biotech.” Salon. http://www.salon.com/tech/htww/2007/02/08/gujarat/index.html. Accessed 1 November, 2007.
McGray, Douglas. 2002. “Biotech’s Black Market.” International Reporting Project, Johns Hopkins University School of Advanced International Studies. http://www.journalismfellowships.org/stories/india/india_biotech.htm. Accessed 1 November, 2007.
Stone, Glenn Davis. 2007. “The Birth and Death of Traditional Knowledge: Paradoxical Effects of Biotechnology in India.” in Charles McManis, Ed. Biodiversity and the Law: Intellectual Property, Biotechnology, and Traditional Knowledge. Earthscan.
Surowiecki, James. 2007. “Exporting I.P.” New Yorker Magazine. 14 May 2007, p. 52.
Bioethics in Brief
Volume 9, Issue 4
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Editor: Camie J. Stockhausen
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