Prometheus: Vol 29, No 3 (2011)

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Editorial
Stuart Macdonald
Pages: 229-231

This issue focuses on intellectual property rights, though from two very different perspectives. The research papers consider how intellectual property rights relate to traditional knowledge, very different from the sort of information created in an R&D laboratory. The collection has been organised by Peter Drahos, Director of the Regulatory Institutions Network of the Australian National University in Canberra in a venture supported by the Australian Research Council.

In his own paper, heading the collection, Peter Drahos immediately extends the discussion beyond the customary concern with protecting the traditional knowledge of indigenous peoples. He argues that this sort of knowledge is itself indigenous, part of the infrastructure of a civilization, and interwoven with its landscape and culture. Australia is his palette and it is there that a picture is painted of knowledge quite meaningless in isolation from the knowledge inherent in complete systems. His bushfire example is especially telling: traditional knowledge is required to sustain the bush by regular burning, but burning the bush without this knowledge destroys the very habitat burning is intended to maintain. Burning in ignorance reduces the bush to a commodity exploitable only by the resource-intensive methods of European farming. In disregarding knowledge as part of a system, the system itself is destroyed to be replaced by activities with which Western notions of intellectual property rights are more sympathetic.

Christoph Beat Graber and Jessica Lai also look at Australian evidence – the attempts of the Australian government to promote an Australian Authenticity Label to denote products of indigenous culture. This top-down effort to label (in every sense) worthy indigenous heritage met with spectacular – and mercifully rapid – failure. The authors make interesting comparison with a quite different approach, the bottom-up voluntary system that is Fairtrade. They are much impressed by the willingness and ability of individuals to favour indigenous products through the market, an interesting case of market success in dealing with traditional knowledge in the face of government failure.

Susy Frankel considers the efficacy of geographical indicators in protecting traditional knowledge. She is not sanguine: such indicators are tailored to the requirements of Western communities and Western farmers (champagne, perhaps, both literally and metaphorically). Geographical indicators are not at all suited to the traditional knowledge of indigenous peoples. And lastly in this special issue, Miranda Forsyth argues, much as Peter Drahos argues, that traditional knowledge cannot really be separated from the culture in which it is embedded. She finds her evidence in Pacific Island communities and, like all the authors in this issue, is critical of a hierarchical approach to dealing with traditional knowledge. But Miranda Forsyth goes further in finding that any homogenized approach to the problem, any approach that disregards individual circumstances, may well do more harm than good.

The debate in this issue is on the use of intellectual property rights in scientific research. It is inspired specifically by the publication of the Manchester Manifesto, and more generally by Sir John Sulston’s epic battle against the use of the patent system in the race to sequence the human genome. It is interesting to speculate how different the exploitation of this knowledge would have been had it been protected by patents. Some would point out that a decade of exploitation has been more notable for the potential of development than for its realization. Others would see the speed of the research and the research networks that have been created as testimony to the power of open access to create the knowledge infrastructure vital for commercial development. The proposition paper from Catherine Rhodes, John Harris, Sarah Chan and John Sulston reproduces the Manchester Manifesto in full, and outlines some of the reasons for producing it, and some of the reaction to it. The Manifesto roundly condemns the use of the patent system in scientific research and received much support from the scientific community when it was first published.

Our respondents in this debate are generally critical of the way the intellectual property system is used, and might have been expected to be as one in their support of the Manifesto. Instead, they have reservations. Huanming Yang is an exception, pointing out in no uncertain terms that human genome research and research into rice genomes have flourished in China in large part because of the stance that John Sulston took against the patent system. Had purely commercial criteria driven human genome sequencing, China would not have been a partner in the project and Chinese research that may well transform rice production would probably never have begun. George Church is also an entrepreneurial scientist and a mite more circumspect than Huanming Yang. He observes that the open access weapon the Manifesto recommends may not always be appropriate. Trade secrets is probably a much better weapon of choice, and yet the Manifesto makes no mention at all of trade secrets.

Peter Drahos, the very same Drahos who organized the special collection of papers on traditional knowledge, is sympathetic to the ideals of the Manifesto, but questions the idealism of scientists. After all, Peter Drahos notes, scientists are the greatest users of the system the Manifesto castigates. He finds it a bit rich that scientists should deplore the patent system with their words, while supporting it with their actions. Graham Dutfield, like Peter Drahos, sees scientists wanting it both ways. And, again like Peter Drahos, he wonders why their venom is reserved for the patent when the armoury of intellectual property rights contains so many other weapons designed to make private property out of what might otherwise be public knowledge. Is this total focus on patents an indication that scientists are just not very familiar with intellectual property rights?

Graham Dutfield goes further, as he is entitled to do, and observes that the Manchester Manifesto (which is reproduced here, at the insistence of its authors, exactly as it was first published) really is something of a mess. Its faults go well beyond failing to consider other forms of intellectual property rights. The Manifesto’s understanding of the patent system is inadequate and its logic is faulty. A worthy effort, to be sure, but perhaps a case of scientists being unaware that other subjects can be as complex as their own, and that solutions to problems in the social sciences are no more likely to be simple and single than solutions in the sciences. So glaring are these deficiencies, so serious the charge of ignorance of the subject that the Manchester Manifesto is less a case of could do better than of could do harm.

And there we have it. Quite an exciting issue really, especially considering that both the debate and the research papers are concerned with evaluating the impact of intellectual property rights, an activity that normally offers all the thrills and spills of stamp collecting. The debate papers share a more subtle theme with the research papers: the complexity of intellectual property rights may confound their understanding, but partial understanding does not necessarily restrain the assurance with which opinions about intellectual property rights are expressed. The need for academic analysis is evident.

General Editor

When cosmology meets property: indigenous people’s innovation and intellectual property
Peter Drahos
Pages: 233-252

ABSTRACT

The protection of traditional knowledge by means of intellectual property rights is one of the major concerns of international organizations. Less attention has been paid to the relationship between systems of indigenous innovation and intellectual property. Using Australia as a case study, the paper argues that indigenous innovation systems are located within a connectionist cosmological framework. The distinctive institutional features of this innovation system are identified. Key is that innovation in systems maintains the health of other systems. The commodity-based nature of intellectual property systems does not suit this kind of innovation. Property rights in land matter to this innovation system far more than intellectual property. Forms of intellectual property based on the right to distinguish one’s product in the market will generally be more useful to indigenous innovation than commodity regimes such as the patent system. Voluntary certification systems can probably be harnessed to much greater effect by indigenous business enterprises.

The mismatch of geographical indications and innovative traditional knowledge
Susy Frankel
Pages: 253-267

ABSTRACT

This article is about how geographical indications (GIs) cannot deliver the protection for traditional knowledge that indigenous peoples seek. There are three broad ways in which the protection of geographical indications appears to offer the possibility of providing legal mechanisms to protect traditional knowledge. These are the collective nature of the protection, the indefinite availability of the GI and the connection that GI owners perceive between their products and their land. Those seeking protection of traditional knowledge also seek a collective and an indefinite interest and frequently the relationship between their knowledge and the land is important for indigenous peoples. Yet, these similarities are superficial. GIs protect names and are used by Western farmers and sometimes rural communities to promote their products. This article concludes that GIs cannot deliver the protection that indigenous peoples seek in order to benefit from their traditional knowledge.

The traditional knowledge movement in the Pacific Island countries: the challenge of localism
Miranda Forsyth
Pages: 269-286

ABSTRACT

This paper explores the challenge of respecting the local nature of traditional knowledge in two Pacific Islands’ regional initiatives. It argues that the embedded nature of traditional knowledge within the social fabric of Pacific Island communities necessitates an approach to regulation that respects existing customary laws and institutions, and contrasts this with the prevailing state-centred approaches. It also unpacks the different agendas behind the ambiguous term ‘protection’ and demonstrates the potential for misunderstanding among different stakeholders involved in this field. The paper finally identifies a number of negative consequences that could eventuate if a homogenised, state-based approach is adopted in this area, arguing that care must be taken to ensure that the regulatory framework chosen does not destroy more than it protects.

Indigenous cultural heritage and Fairtrade: voluntary certification standards in the light of WIPO and WTO law and policymaking
C.B. Graber & J.C. Lai
Pages: 287-308

ABSTRACT

Private initiatives for voluntary certification standards appear to be an attractive alternative to top-down approaches in the field of indigenous cultural heritage and development. Over the last 50 years, many different indigenous communities have attempted to use certification trademarks to promote their authentic cultural products. These schemes have had varying success, but arguably none has been as visually unsuccessful as the government-funded Australian system, which collapsed within two years of its inception. On the other side of the scale, the Fairtrade label is considered to be an international triumphant success. This paper assesses why the Australian authenticity label system failed, while the Fairtrade label succeeded, and how these conclusions can be used for existing and future endeavours. It further discusses whether such a voluntary certification system would be compliant with World Intellectual Property Organisation and World Trade Organisation law and policy. It concludes by looking towards the future and the possibility of the Fairtrade label being extended to meet the interests of indigenous communities.

Book review
Foresight: the future of food and farming, final project report
Peter Senker
Pages: 309-313

Book review
Beyond intellectual property. Matching information protection to innovation
Hazel V.J. Moir
Pages: 313-317

Book review
The cost of bad behavior: how incivility is damaging your business and what to do about it
Richard Joseph
Pages: 317-319

Book review
International handbook on regulating nanotechnologies
Anna George
Pages: 319-324

Proposition
The ‘ownership’ of science
Catherine Rhodes , John Harris , Sarah Chan & John Sulston
Pages: 325-336

ABSTRACT

Dr Catherine Rhodes is a research fellow at the Institute for Science, Ethics and Innovation specialising in the international regulations relevant to control of biotechnology. Professor John Harris is director of the Institute and has particular interest in biomedical ethics and medical jurisprudence. Sarah Chan is deputy director of the Institute. Professor Sir John Sulston was the founding director of the Wellcome Trust Sanger Centre in Cambridge from 1992 to 2000, where so much of the sequencing of the human genome was completed in a furious race to publish before American commercial interests patented. He was awarded the Nobel Prize in 2002.

Read the full paper here.

Response
Support the Manchester Manifesto: a case study of the free sharing of human genome data
Huanming Yang
Pages: 337-341

ABSTRACT

Professor Huanming Yang is co-founder and president of BGI Shenzhen (formally the Beijing Institute of Genomics). BGI made China’s contribution to the human genome project. From 1% of the human genome project, it is now a key player in many of the world’s megasequencing projects. Professor Yang also has a strong interest in bioethics and society. He is a former member of UNESCO’s international bioethics committee and has recently been appointed to President Obama’s international research panel of the presidential commission for the study of bioethical issues.

Read the full paper here.

View correction statement:
Support the Manchester Manifesto: a case study of the free sharing of human genome data

Response
Thoughts on the Manchester Manifesto
George Church
Pages: 343-344

ABSTRACT

George Church is a professor at Harvard University and founder of the personal genome project. He has patents in the fields of genome reading and writing, automation and instrumentation, and advocates open source and transparency; for example, by developing the open access next generation sequencing platform (Polonator.org) and the open access human genome plus trait dataset.

Read the full paper here.

Response
Patents, practical ethics and scientists
Peter Drahos
Pages: 345-352

ABSTRACT

Peter Drahos is a Professor in the Regulatory Institutions Network, College of Asia Pacific, Australian National University and holds a Chair in Intellectual Property in the Centre for Commercial Law Studies, Queen Mary, London University.

Read the full paper here.

Response
The Manchester Manifesto: a missed opportunity?
Graham Dutfield
Pages: 353-357

ABSTRACT

Graham Dutfield is professor of international governance at Leeds, research affiliate of the Intellectual Property Law and Technology Program at York University, Toronto, and adjunct professor at the Center for Studies of Intellectual Property Rights at Zhongnan University of Economics and Law, Wuhan. His research on intellectual property crosses several disciplines, including law, history, politics, economics and anthropology.

Read the full paper here.