Issues in the Moral Grounding of Intellectual Property Rights
Issues in the Moral Grounding of Intellectual Property Rights
Abstract and Keywords
This chapter returns to the question of legitimacy of intellectual property rights (IPRs) with which this book begins. Can IPRs be legitimately claimed as rights? In the absence of moral principles that support such a claim, do IPRs derive any legitimacy at all from their ability to support or conjoin with other rights? Do IPRs fit in with a framework of rights, which unites welfare, well-being, equal access to advantage with autonomy? These are questions which emerge out of the contestations relating to intellectual property. These questions explore the broader challenges that collective claims pose to the liberal theory of rights. It is one thing for international covenants to recognize and felicitate these rights, and quite another for them to become justifiable tools for renegotiating both lost spaces of autonomy and protected future choices.
It has been the aim of this book to consider both the moral arguments that support, as well as those that deny the proposition that intellectual property rights, in their current conception, have a moral basis. Rights must necessarily have moral premises and moral dimensions for they address fundamental issues related to the human good, which in itself is an aggregate of a number of equally fundamental ethical aspects. Rights may be devised to secure and advance individual autonomy and interests and presuppose individuals as the sole bearer of these; rights, in another perspective, may presuppose individuals as parts of social attachments and ends, and uphold a notion of the social good; rights may be devised as universal or local or culturally specific, whatever the conception and the motivation, rights are in essence related to the advancement of ‘good’ and are strongly related to their capacities to produce or secure other ethical goals. Rights are therefore, moral goods. Their institution or claim ought to be based on firm moral grounds, in the absence of which they will always have the ability to impair other ethical goals.
Intellectual property rights are both claimed and contested from a rights perspective and therefore it becomes imperative to inquire into the ‘justness’ of their premises. The central question that the study sets out to raise is: What kind of moral claim does a proposition of intellectual property rights make? Because the classical conception of property did not exhibit the same identifying characteristics as intellectual property does, it becomes necessary to examine whether the traditional moral justifications of property rights hold good for Intellectual property rights as well. If they do not, as I have argued, we are in a position to state that even premises of the property discourse are not good enough to legitimate intellectual property rights. This kind of positioning, which uncritically accepts natural rights and utilitarian premises for near absolute property rights, is a strategy which enables us to evacuate intellectual property rights of the very moral premises which it draws its sustenance. Section II then takes it beyond (p.332) this ‘internal’ critique to inquire into the justness of intellectual property rights. Both the premise and the consequence are important dimensions of any rights inquiry.
Central to this study on intellectual property rights are two issues; one, can knowledge constitute a property right? And second, if at all knowledge can legitimately be held as property, who ought to be the legitimate holder of this property right? While the first leads us to theoretical concerns which preclude an easy extension of the conventional justifications for property to intellectual property rights, the second leads us to pragmatic concerns and anxieties which stem from the non-compossibility of intellectual property rights with particular aspects of human rights such as the right to health, livelihood, subsistence, knowledge and so on. The fundamental premise of this book therefore is that rights ought to have strong moral justifications or strong reasons such as a combination of an intuitive moral sense (as to whether there are specific rights people ought to have) and good' consequences, consequences which are ‘rights sensitive’. Any requirement of a right, in a modern context, makes one person's rights conditional on similar rights for all and therefore, makes consequence evaluation an important aspect of the morality of rights. I have argued fervently in Section II that rights ought to be established not merely on grounds of utility, intuition or morality but also for the effects that they may generate for other rights. A right which conjoins with other rights has a stronger claim than a right which infringes upon other rights. If we begin with the premise that rights are moral goods, and that they exist because they augment conditions of good life or conditions of justice, then it becomes very important for rights to not transgress either individual claims for autonomy and freedom, or conditions of justice. Rights which infringe either the individual domain or the social, or both (as in the case of intellectual property rights) are largely ungrounded in any conception of morality.
Alternative conceptions of property have been presented which permit several types of evaluation for claims and disputes arising over intellectual property. One type of evaluation is the examination of the narrow implications of each conception. However, if property and ownership rights comprise both philosophical beliefs and practical utilities, one would expect them to be applied in combination. To use Lawrence Becker's pithy phrase: ‘an all things considered argument’ or all inclusive justification is properly a moral justification.1 Amartya Sen, (p.333) in a similar vein, argues that any valuation exercise would only be partial unless the libertarian priority to rights and processes that give rise to a specified set of rights, and the utilitarian approach that lays emphasis on the valuation of outcomes, are integrated rather than being independent of each other.2 Violation or fulfillment of rights therefore become an important dimension in the valuation of outcomes in this study which adopts this integrated approach while critiquing, on moral grounds, the idea of intellectual property rights.
The Libertarian Limitation
A moral justification of intellectual property would draw upon multiple themes in the following way.3 It would first take into account the ontological criteria which are implicit in the thoughts and practices of many people and thus inform the intuitions that people bring to a discussion of property. These criteria have evolved from traditional practices and in the course of time become the explicit norms for recognizing property rights and ownership patterns. They inform the intuition of people regarding the implicit legitimacy of a certain right or a norm. Natural rights and labour theory are examples of ontological approaches which have been used as a basic assumption for intellectual property, as in the works of Locke or Nozick discussed in Chapter 2.
The study evaluates the libertarian claim, drawn from Locke and Nozick, that views rights as a species of moral property in one's person, personal powers and justly acquires external resources. Referred to as the principle of self-ownership, it is a powerful way of expressing the principle of individual liberty which claims that individuals have full ‘property rights’ over their body, skills, and labour, and anything, justly acquired, with which they mix these becomes theirs to own, exclude, use, and dispose freely. While this became the ‘natural rights’ claim for property rights in tangible/physical property, it falters when applied to intellectual property.
The intuition that people deserve the fruit of their labour is a powerful justification for all forms of property, including intellectual property. These form the intuitive arguments which people use for legitimating all forms of property and are a source of appeal when more explicit criteria, like utility, fail to provide ready answers. They also formed the initial bias for rights in intellectual property. If an individual's labour originates (p.334) a property, then appropriation without consent violates the individual's liberties and his natural right to property. This theory provides a strong claim for ownership in goods which are products of one's labour.
The principle of self-ownership, when extended to the domain of Intellectual Property rights, becomes self-contradictory. Intellectual Property rights, as upheld by TRIPS, exclude from its domain, rights of those people who have not been first movers. For instance, I may have expended mental labour, mixed it with external objects, created something but am not accorded rights to the fruit of my intellectual labour because existing intellectual property rules take away these rights from me. Therefore, in this case, recognizing a dominion over an idea (in the form of IPRs) may actually curtail my self-ownership rights, that is, the rights that I ought to legitimately exercise over the fruits of my mental labour. Recognizing your dominion over an idea can inhibit my use or transfer of my physical property or what I could potentially make my property. Intellectual property would therefore even contravene the Nozickian defense of ownership because it interferes with the freedom to exercise the right of transfer. A copyright or patent owner can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment or transfer of their tangible property. It could thus be violative of others' rights to their property—both intellectual and physical.
One of the central reasons why the right to intellectual property is not ‘naturally’ implied by labour theory is that intellectual property rights in one's knowledge, becomes inconsistent with the principle of liberty. Property rights, in libertarian theory, have been interpreted to be (p.335) a derivative of rights to liberty that all humans are entitled to. It follows logically then that property ought to be consistent with other liberties of other people, (liberty being, to use Lawrence Becker's phrase, the ‘originating right’).4
There is thus a great degree of unease expressed about the protection of intellectual property interests among those who purport to treat individual liberty as the highest good. Intellectual property rights, to use a Nozickean expression, do infringe upon the ‘like liberties of others’. Property rights, even from the classical libertarian position, need to be consistent with a regime of personal liberty. Self-ownership thus, as an abiding principle of libertarian property defense, falters in its defense of intellectual property rights. Any principle which contradicts the premises that generate that principle (liberty in this case) is self-contradictory, as much as self-ownership is as a premise for intellectual property.
The Utilitarian Limitation
Lacking ‘natural’ entitlement or claim, the intellectual property system of rights is then negotiated in a manner that ensures that these intellectual products attain the properties of excludability through statutory enforcement. It is here that a more explicit criterion like utility is employed. It is in the social negotiation of the system that utilitarian arguments gain relevance. Utilitarian arguments have a role to play in reinforcing the moral grounds for property rights. That people will be more productive if they have incentives is a widely shared argument used to project intellectual property rights as incentives or rewards for research and innovation. The expectation that intellectual property protection would lead to good consequences for the society as a whole has led to the codification of intellectual property rules and regulations.
The intellectual property rights as incentive argument invites the objection that G.A. Cohen put forward in his powerful critique of Rawls.5 Rawls' ‘difference principle’ states that inequalities are justified if they work for the good of the least fortunate. In keeping with that, incentives can be defended on grounds that inequalities engendered by the intellectual property regime are defensible on grounds that they create incentives that are advantageous to the least fortunate. Cohen argues that incentives cannot matter to moral and political theory. For instance, if I (p.336) am morally obliged to take care of someone else's interest, that obligation holds on me regardless of how much I get paid for it. Whenever incentives are legitimized from the standpoint of the difference principle, there is a superior alternative: let the talented work at innovation and if the welfare of the society is at the heart of that effort, then greater welfare is derived when no monopoly prices are demanded for that service. The worst off may be better in one sense, that is, reaping the benefits of innovation, for example, a new effective drug but would be worse off in another sense, that is, in having to pay a premium on access to an innovated drug. Moral philosophy cannot justify incentive based inequalities. Cohen's ‘egalitarian conscience’ is vital to the upholding of a stronger version of Rawls' difference principle.
One of the central theses of utilitarian philosophy is to draw a distinction between specific cases and ‘general equilibrium’ arguments. So, for instance, we know from the scholarship on property, that one cannot make a case that every instance of the exercise of property rights is efficient. However, we can still make the case that overall a system of private property is more efficient. The response to the efficiency claim is presented in Chapter 4 but the overall efficiency argument needs further engagement. The term ‘overall’ is a tricky word. It hides the disaggregated components of what constitutes the term ‘overall’. If it can be demonstrated that eighteen million human beings die prematurely each year from medical conditions that can be cured; If it can be demonstrated that neglected diseases cause an estimated 5,00,000 to 1 million deaths annually and cause a global disease burden equivalent to that of HIV-AIDS,6 then is this good enough to constitute ‘overall’. If it does, as these figures and suffering do, merit that status by any standards, then it stands that the intellectual property system does not work for the mitigation of these conditions. It does not have R&D outlays for NDs; it makes drugs unaffordable such that millions of AIDS, cancer, and other victims are denied access to them. To add to this list, examples can be drawn from Chapters 7 and 8, loss of livelihood of farmers, indigenous peoples in developing countries because of the causal chain that connects them to the proprietary claims in agriculture and knowledge systems. If we agree that this constitutes the ‘overall’, then one can establish that (p.337) the intellectual property system does not lead to overall welfare. It leaves large, marginalized sections outside its welfare radar.
On the other hand, if it is argued that if a third of the population dies of neglect and lack of drug access, two thirds still live and therefore, the net aggregate welfare would be better served by orienting incentives for the latter, it would compel an alignment of utility with other moral concerns, for aggregate utility cannot simply be a calculation of numbers. It has aligned itself with the quality of suffering or pleasure and not just the quantum. The suffering of a cancer patient cannot be compared to the suffering of a bald person. Utilitarianism has a weak basis in comparing utilities. Monopoly of use and profits that precondition the operation of intellectual property rights are inconsistent with utilitarian consequentialism that favors a diverse set of consequences namely, greater availability through lower prices and expanded volume. The assumption of utilitariansm that only utility consequences ultimately matter (calculated on the basis of benefits minus costs equals net welfare) is totally contingent on the variables that are quantifiable, both those that are taken into account and those that are omitted. Assigning each of these costs and benefits a value which can be compared to every other cost or benefit is, if not impossible, at least arbitrary. This is not a simple calculation involving comprehensible quantities.
Utilitarianism falters when the overall welfare principle does not take into account unaccounted costs, or undervalued costs. For instance, it is found that in the most industrialized nations, plant monopoly rights lead to control of the food chain by the intellectual property rights-holders, impacting the food security of people associated with and linked to farming practices. In another example, there are grave consequences for those who cannot afford life saving drugs at high patented prices. These are costs which any utilitarian analysis ought to take into account and assign a value which belies simplistic quantification.
Undiscovered costs and benefits, the ever-changing and impermanent character of costs and benefits, make it imperative that the utilitarian justification of intellectual property rights needs to be informed by other moral premises of rights and justice. If morality is to be evaluated in terms of the consequences, the goodness of the outcome should be in conjunction with other principles of justice. Fulfillment and violation of rights have to become important dimensions in any valuation of outcomes.7 Intellectual (p.338) property rights cannot be solely judged in terms of wealth maximization; efficiency cannot become the basis for the grant of a right.
As a stand-alone conception of property, the utilitarian view provides a highly questionable basis for recognizing rights in intellectual property. The absence of intuitive ontological premises of intellectual property and limitations of a consequence-dependent system of intellectual property rights indicate a weak moral claim for Intellectual property rights.
An integrated approach to rights, as adopted by Amartya Sen,8 tries to take cognisance of both the ontological premises and the outcome of rights. Here rights are viewed as normatively important but need to be integrated with outcomes as well—a view that goes beyond narrowly conceived utility consequences to take into account violations and fulfillment of rights as well. Here consequences matter but they need to cohere with our moral beliefs. Our core intuitive, moral sense, admittedly, cannot become the basis of public policy, since our moral beliefs might be mistaken. However, any notion of morality derived from the optimality of consequences, fails to be justified if it cannot cohere with our moral beliefs. There is a need therefore, to acknowledge a system of rights that takes note of consequences of various types—‘other’ liberties and rights being extremely important consequences.
The Rights Limitation
Does the intellectual property regime take into account the consequences that intellectual property rights generate for other categories of rights? People have rights other than to the fruits of their labour. My patent rights, derived from my labour may conflict with my right to health in ensuring access to essential medicines or they may conflict with a farmer's rights to re-sow his seeds, that is, his right to liberty, livelihood, subsistence, etc.
Intellectual property rights do not easily cohabit with other rights, as seen in Chapters 6, 7, and 8. Serious infringements of rights have been documented and enumerated in these chapters. Where rights conflict, terms of adjudication need to be devised to determine the salience of a particular right over another. Liberal philosophy, the source of most civil and political rights in liberal democratic regimes,9 regards two rights as (p.339) ‘originating’ or ‘source’ rights: the rights to life and liberty The right to property is often regarded as a derivative of the right to liberty, or in some Lockean readings, as a derivative of the right to life.10 Since intellectual property rights have their origins in the libertarian thinking, the moral terms of adjudication between them and competing rights ought to rest upon, at least, upholding the primacy of these two fundamental, inalienable rights. The three case studies undertaken in this thesis establish the infringement, by intellectual property rights, of the rights to health, livelihood, and knowledge rights of traditional peoples—all aspects of the human right to life. What distinguishes these rights from intellectual property rights? Some of these rights are group rights (farmers' rights, Chapter 7), some are individual (health rights, Chapter 6), while some have a strong collective and cultural character (knowledge rights of traditional peoples, Chapter 8). In comparison to intellectual property rights, these rights are distinguishable in terms of the salience they acquire by virtue of being closely associated with the life and liberty of collectives, individuals, and individuals within collectives. The right to higher profits or returns on investment is not as salient as the right not to die as a result of not being able to afford anti-HIV drugs, or as a result of starvation. Some rights are in the nature of, to use Rawls terminology, ‘primary goods’ primary to life and liberty.
Intellectual property rights do not protect livelihood, subsistence, or entitlements which are to do with the essential quality of life, or protect the innovation and creations of peoples whose life depends on them. They are at best economic entitlements which can be described as claims for reward on investment in research and innovation activities. They do not protect liberty either. The liberty to think, create, transfer ideas and other intellectual products are not constrained in the absence of intellectual property rights. Legally, there would be nothing stopping people from undertaking innovative activity even if intellectual property rights were withdrawn. Innovation after all took place even in the absence of these laws in socialist societies, traditional societies, and even in western societies in the pre-Intellectual property era. Acquiring and using unowned objects is part of an individual's liberty (core libertarian ideals); so also is the freedom to exercise one's choice autonomously. The (p.340) absence of intellectual property rights does not curtail the liberty of a person to express, acquire, use or transfer objects or ideas. Even without the grant of intellectual property rights, individuals can continue to research, innovate, create, and claim ownership of that creation and use or transfer it on terms that could be a result of negotiation between the creator and the market.
The right to liberty is also a limited act to be exercised without infringing on the similar rights of others. Liberty therefore, can only be a right that justifies individual acts of acquisition, use, and transfer of ideas. It cannot be a guarantee for future and others' use of the product, a right that intellectual property rights seek. What intellectual property rights aim to do is to control the terms of further transfers and dissemination. This is then about the right to control the trade trajectory of an object or an idea and not about the liberty to create or to claim ownership in the object or idea created.
Furthermore, the benefits that accrue do not outweigh the costs, particularly when costs are measured in terms of the rights of other people. Classifying IPR then, as human rights is problematic at both the theoretical and policy levels, for human rights are understood as rights that are inalienable and part of universal entitlements that are not limited by time, and cannot be suspended or curtailed. IPRs, on the other hand, are limited-duration statutory rights given by the State. They can be curtailed in certain circumstances where they conflict with the larger interests of society. For example, a patent held by a pharmaceutical manufacturer over a medicine can be suspended under compulsory licensing, if the granting of the patent causes the price of the drug to escalate, putting it out of the reach of a large section of society. This highlights a fundamental condition on which human rights are predicated and which demarcate IPRs from aspects of human rights. This is the basic distinction between the knowledge rights of traditional peoples and intellectual property rights. While the latter fail the criterion of being rights fundamental to the liberty, autonomy, and well-being of individuals, the former are essential to the preservation of the lives and autonomy of both the individual and communities.
The study draws attention to the conflictual nature of the knowledge systems which are marked by an inherent lack of commensurability—western scientific systems protected by the TRIPS regime and TIK attempting and struggling for protection. Left to their own domains, they perhaps may not conflict. It is when the two systems interconnect under (p.341) conditions of globalization, that the latent incommensurability of these rights become conflictual and non-compossible.
What therefore lies at the heart of the debate is the problem of how to devise standards of commensuration at the policy level which could translate into policies for conflict management, based on terms of arbitration that are fair and equitable. I propose that terms of adjudication ought to rest on which rights are ‘prior’ rights—prior in the sense of being entitlements to minimal standards of food, clothing, shelter, and health care. Some rights are weightier than others—the right to nutrition, the right to health, and knowledge rights of certain traditional communities, linked to their survival strategies.11 Rights which are crucially linked to survival strategies encompassing conditions of dignified human existence, are the most fundamental and inalienable ones, and therefore, demand to be upheld as one with a prior claims to protection vis-à-vis intellectual property rights. Rights and freedom of peoples, competing values such as public health, public interest, national security or morals, and above all, right to dignified human existence, should given enough weight that they trump rights to intellectual property.12
Collective Rights within Liberal Theory
The terms of the debate surrounding intellectual property rights are frequently dominated by the fact that intellectual property rights belong to the domain of liberal democratic rights which are individualistic in nature and therefore, fundamentally conflict with the rights of the traditional people which are usually located in collectives. For instance, farmers' rights are group rights, as are indigenous knowledge rights. These rights are political claims which get their sense from the status of persons/communities as self-governing units. These self-governing members can belong to and claim allegiance to altogether different conceptions of rights, rooted in their own socio-economic and cultural milieu.
How do we assign rights to collectives? Who is to be the bearer of these rights? This is the dilemma of contemporary liberal philosophy which seeks to increasingly adopt and articulate the language of human rights in order to mitigate the sufferings and poverty that afflict a larger part of the global population. The liberal dilemma poses itself in international (p.342) charters and Conventions. The UDHR states that members shall promote human rights ‘without distinction to race, sex, language, or religion’, but is in a quandary over the proper response to groups identified by race, language, or religion that want differential treatment in order to preserve characteristics they cherish.13 The absence of legally binding international instrument on farmers' rights and on knowledge rights of the indigenous peoples is perhaps an outome of this dilemma. The dilemma does not exist at the level of diagnosing that these collective entities have rights claims; they are well recognized and have become a part of the official rhetoric at various national and international levels. The dilemma exists in assigning them juridical expression which will entail a set of obligations on the duty bearers.
Rights that are essential to the pursuit of the most basic interests and the satisfaction of the most basic needs have a strong moral basis for being considered as rights. Liberal-democratic thought assigns this as the basis of individual rights. Liberal theory holds that the freedom of each individual to live according to his/her own conception of the good is, as Mill said, the ‘only freedom which deserves the name’;14 or as Dworkin states, ‘The basic idea of right-based theory is that distinct individuals have interests that they are entitled to protect’.15 Ernest Barker goes a step further and demarcates the area of moral rights only for individuals for according to him ‘in the moral world there are no group persons’ [emphasis mine]—no group exists that has collective moral rights.16
Extending the argument further to test its implication for who the bearer of the right ought to be, it can be asked that if the objective of rights is to satisfy the interests and needs of the individuals, then is it implied that associated rights should be assigned to individuals only. It can be argued that there is no basis for assuming that individuals are the only significant units as repositories of rights. Sometimes, the associated right is better protected when located in a collective unit. For instance, a farmer's right to livelihood may be better protected through a collective (p.343) right that the farming community has over its resources. States are collective entities, so are business corporations and both have rights. Some interests and needs are therefore better conceived as collective rather than individual. If interests govern rights then it does not preclude collectives from being claimant and repositories of rights. Collective rights, I argue, can be claimed on the same basis and within the same system as individual rights. Will Kymlicka argues, that certain ‘collective rights’ are consistent with liberal democratic principles.17 When collective rights are not rights of a group to limit the liberties of its own individual members (internal restrictions) but refer to the right of a group to limit the economic or political power exercised by the larger society over the group, then these collective rights are consistent with liberal democratic theory.
The liberal-communitarian debate, which dominated much of the 1980s, reflected the concerns and issues posed today by conceptions of individual and collective rights. The liberals defended the rights of an individual against encroachment by the state and society and communitarians defended the particularity and cohesiveness of the community/society against the unrestricted choices of individuals. A part of this debate was also framed in terms of universalism and particularism, where the individualists defended universal principles of liberty and freedom, while the communitarians insisted that morality was always embedded and tied to shared local meanings.
The ubiquity of rights-talk very often is animated by a fundamental tension between the desire to establish universal rights, on the one hand, and the awareness of cultural differences on the other, and which often becomes the basis for intense negotiation of space for different rights. Emerging pluralities are challenging, at both theoretical and policy levels, notions of the ‘universal’, universal rationality, universal rights, conventional conceptions of citizenship and so on. However, principles of moral universalism abide, albeit in an increasing dialogue with local definitions and legal particularism.18
Following the later work of John Rawls, much of contemporary liberal theory is premised on the claim that there are no non-contestable premises about fundamental or universal values of human nature from which liberal justification could proceed. The fact of reasonable pluralism', prevails on premises of moral universalism, which Rawls argued is the (p.344) ‘inevitable outcome of free human reason’19 and ‘a permanent feature of the public culture of a democracy.’20 Rawls explains that there are several distinct but mutually incompatible comprehensive doctrines, non-converging religious, moral, philosophical views and that ‘a continuing shared understanding on one comprehensive doctrine can be maintained only by the oppressive use of state power’.21 Thus, according to Rawls, any political order that is premised on the truth of a single comprehensive doctrine—even a decidedly liberal one—is ipso facto oppressive and therefore illiberal.
Rawls' pluralism is not regarded as the most radical of pluralisms,22 but is sufficient to suggest that any conception of rights has to take cognizance of distinct and plural cultures, communities, moral doctrines, ways of life, and religious systems, etc. Plurality has to become a condition of liberal regimes and liberal conceptions of the good, rights, and justice. Galston, a radical political pluralist states that ‘while the distinction between good and evil is objective, there are multiple goods that differ qualitatively from one another and that cannot be rank-ordered’. From this, it follows that ‘there is no single way of life, based on a singular ordering of values, that is the highest and best for all individuals’.23 Therefore, the state must provide and protect the political space in which each individual can make such choices as s/he sees fit. The freedoms and choices of each individual are upheld only when they are embodied within the institutions and traditions of particular political communities.
The basic justification for individual rights and collective rights (or human rights, the bearers of which are collectives) are the same. Dworkin's principle of the ‘right to equal concern and respect’ could well be used as a plausible theory of collective human rights and could trump any ordinary claims of common good based on aggregating individual good.24 The right to equal concern and respect is grounded in the interest an individual has in the quality of his life, and an individual's quality of life may well be defined or protected through collective or group rights. Many individual rights may be understood as flowing from the (p.345) community's right to self preservation. Groups, cultural, ethnic, religious therefore, may generate entitlements.25 There are many philosophers today who argue that doctrines that recognize only individual rights are not universally relevant to contemporary political problems.26 Many societies are characterized by radical cultural heterogeneity and can function only on the basis of collective rights.
The problem therefore is not of devising a basis for assigning rights to collectives but that once rights are assigned, these collectives become distinct political units or economic entities which have the potential to confront the dominant and existing political or economic entities. Just as groups may generate entitlements so also entitlements may generate political entities which may confront established rights and norms. In cases of conflict—as routinely occur between indigenous knowledge holders and claims for intellectual property rights, or between farmers' rights and breeders' rights—the intellectual property rights of the individual may be put in jeopardy; the rights of the group might always be held to prevail. Resisting collective rights might have therefore, practical significance for societies based on individual rights. The issue of collective rights, specifically in the context of knowledge rights, is therefore not merely conceptual, but also one of pragmatic assessment based on vested self-interests of corporations and countries.
In devising universal rules and norms for knowledge generation and use, the intellectual property rights regime essentializes social and cultural categories, fixes identities as a concomitant of its task of developing general principles to include all possible cases. This universalizing is not a product of moral ambiguities and ethical choices between individual subjects and collective identities. The conflict between intellectual property rights and traditional peoples' knowledge rights is not just about incompatible values, attitudes and practices, but relates to a fundamental aspect of rights as power. Intellectual property rights bestow on the rights-holders the (p.346) power to appropriate in newer, more secure, and profitable ways. It assigns them the power to enter other domains of knowledge, other domains of rights: the entry always restricting the choices of others and curtailing their rights. Rights, as legal process, are a ‘structuring discourse’ which shape how the world is apprehended. Intellectual property rights are forms of legal protection that protect a certain basis for the deployment of knowledge for appropriation while denying others.
Indigenous communities create collectively, which would mean that in an alternative conception of intellectual/knowledge rights, the entire community would be deemed the rightful owner of such creativity or innovation. Michael Brown states, ‘A group's relationship to its cultural productions constitutes a form of ownership. This ownership may be literal—that is, based on some comprehensive definition of cultural or IP—or metaphorical, reflecting universal recognition that a group “owns” the ideas and practices that it holds dear’.27 Literal or metaphorical, most ownership claims of indigenous peoples have been dissociated from the proprietary connotations of intellectual property claims. The identification of inventiveness with the solitary pursuit of an individual cannot be easily reconciled with the cultural productions of knowledge of indigenous peoples.
But the global politics of intellectual property has become increasingly complex. It can no longer remain content leaving the two ownership patterns relegated to their respective domains. As arenas of contestations and negotiations emerge, it is deemed increasingly necessary to democratize the field of practice of intellectual property. In this context, one can easily see the attraction of framing traditional indigenous knowledge demands in terms of access and benefit sharing (ABS), as admission of conceptions of cultural and collective property—collectively the community becomes the repository of the right to claim benefits when its knowledge is used to create further commercial value. The temptation to make disclosures and ABS the sole acknowledgement of the demand for collective rights is based on a fairly intuitive perception: if indigenous people own their knowledge, and if it is taken from them, then it should simply be a matter of compensation. In the absence of exclusionary premises of TIK ownership norms (both as per customary law and more legal frameworks), (p.347) ownership requirements are served through access and arbitrarily derived compensation norms.
Modern jurisprudence on property rights has used the absence of proprietary and residential claims of property in traditional knowledge customary laws to construct a version of ownership rights for indigenous peoples which lack not just exclusionary abilities, but also the power of structuring social and structural conditions. This relates to a fundamental aspect of rights as power. While intellectual property rights, as legal process, have the ability to structure conditions, ‘imperfect’, residuary rights vested in the communities claim to benefits of weak rights that are themselves structured in relation to another right. Their derivative status ensures that they eventually become a part of the structuring discourse of intellectual property rights.
Pragmatically, there is reason to believe that the reappearance of the ‘local’ within the discourses and practices of global governance has had a large impact on the way rights are conceptualized and have been reorganized in terms of newer generations of socio-economic, cultural, and human rights. ‘Localism’ and ‘globalsim’ are themes which resonate in the various conceptualizations of knowledge rights, such as the Traditional Resource Rights (TRRs) and Community Property Rights (CPRs). The ‘alternative’ quality of these systems is derived from the recognition that universal values of freedom and democracy can only be upheld and protected if knowledge rights are embodied within the traditions, culture, and institutions of particular communities. A model community intellectual rights act was suggested in a Third World Network discussion paper28 as a means of bringing about the evolution of new criteria for claiming intellectual property rights that are compatible with cultural values and the practices of indigenous peoples. The re-conceptualization of knowledge rights is critically linked to the capacities of varied communities around the world to sustain themselves. Their human rights are at times linked to their knowledge rights and to this extent (p.348) the conceptualization of TRRs and CPRs are allied to a de facto self determination of traditional peoples. TRRs seek not only to protect the knowledge relating to biological resources but also to assert the right of peoples to self-determination, including territorial and human rights, and the right to safeguard ‘culture’ in the broadest sense of the term. Darrel Posey and Graham Dutfield in their support to TRRs state that TRR recognizes the inextricable link between cultural and biological diversity and between the human rights of indigenous and local communities, including the right to development and environmental conservation.29
It is important to bear in mind that rights to cultural property, TRRs, and CPRs had existed in the customary law and customary rights domain for centuries. The dramatic expansion of intellectual property discourses went a long way in displacing traditional and customary ways of owning. In many ways, the intellectual property discourse brings to center stage conceptualizations of alternative property regimes and replaces what should be extensive discussion on the moral implications of the intellectual property right itself.
The concern with understanding the moral dimensions of intellectual property rights has been greatly influenced by an understanding that sees rights as social products and their morality as derived from the purpose of according a politico-legal status to the needs and wants of people who differ in their substantive conceptions of the good. As human rights get aligned with issues of needs and culture, so do they with issues of justice. Its intuitive appeal lies in its appeal to our normative imagination. However, for these moral claims to be translated into legal claims located in cultural practices of the people, human rights need to be brought ‘down from its pedestal’,30 as Upendra Baxi proposes, in our struggles against the monocultures of universal rights, to re-situate human rights ‘amidst other significant cultural concepts which define a ‘good life’ in a pluriverse’.31 (p.349)
Both, the conception of rights and the conception of what is human, are located in practices of power and hegemony, to draw from Foucault, which in their acts of inclusion violently exclude what they consider beyond the pale of rights and human. Foucault thus demands an ‘insurrection of subjugated knowledges’ which goes beyond the accepted formula of rights and definitions of human. Ethical absolutism would suggest that what constitutes human is beyond the realm of contingency; that there is something inviolable, a priori about what constitutes human rights. However, as Baxi argues, ‘philosophical pragmatism would suggest that what constitutes human is a matter of contingent beliefs, always open to negotiation and change…’.32 Whatever emerges out of this negotiation determines what constitutes human and what constitutes a right for a given community. Negotiations may entrench on existing conceptions—I have argued that ‘disclosure’ and ‘benefit sharing’ are two such negotiated spaces within intellectual property rights. Or it may expand the category of rights and the conditions that classify as human. The spaces of collective and cultural rights could emerge as another such negotiated space.
A view of rights, located in the perspective of cultural relativism, would presuppose a commitment to autonomy—not just a commitment to individual autonomy in the libertarian sense but also as the freedom of different cultural and social entities to define their ontologies. Autonomy implies that the conditions of moral and cultural pluralism be met for rights to be consistent with the enterprise of justice and for them to be conceptualized in terms of human rights. While there is a shared basis for universalism of rights (that rights should exist), there is also a shared perception that particular rights need to be located in the cultural and contextual milieux of different societies. The danger of universal rights is that it encourages the imposition of dominant ideals and standards on other cultures, often through an implied cultural denigration and replacement of local customary ways of being in the world. To this extent, intellectual property rights represent a specific instance of a larger claim for intellectual and cultural domination. To this extent the counter hegemonic perspective of rights needs to be located in a ‘pluriverse’ and one which recovers the meaning of being and remaining ‘human’.
(2) Amartya Sen, 2002, Rationality and Freedom, Delhi: OUP, p. 633.
(3) Adapted from from Edwin C. Hettinger, Winter 1989, ‘Justifying Intellectual Property’, Philosophy and Public Affairs, 18(1), pp. 31–52.
(5) G.A. Cohen, 2000, If You are an Egalitarian How come you are so Rich, Cambridge: Harvard University Press. Also see, David Estlund, 1998, ‘Liberalism, Equality and Fraternity in Cohen's Critique of Rawls’, Journal of Political Philosophy, vol. 6, pp. 99–112.
(6) The George Washington University; Neglected Tropical Diseases Initiative; ‘Developing New Health Products: (Drugs, Diagnostics, and Vaccines) To Control The Ancient Afflictions of Stigma and Poverty’. Available at http://gstudynet.org/docs/The%20GWU%20Neglected%20Tropical%20Diseases%20Initiative.doc (last accessed on 22 March 2007).
(9) Lockean philosophy has remained the cornerstone of American thought which is behind original draft of the Declaration of Independence which outlined the ‘inalienable rights’ of all men as including ‘life, liberty, and property’. Later property was changed to ‘pursuit of happiness’ reflecting the unease with granting property the same degree of salience as life and liberty. A closer reading of Locke however reveals that the right to property was secondary to life and liberty. Refer Chapter 1 of this book for a more detailed discussion.
(11) For an explication of this argument, see, for instance J.W. Nickel, 1987, Making Sense of Human Rights, Berkley and Los Angeles: University of California Press, pp. 131–46.
(12) For the inalienability and salience of economic and social rights see, ICESCR, Article 4.
(13) Francess Stevensson, September 1979, ‘Liberal Democracy and Group Rights: The Legacy of Individualism and its Impact on American Indian Tribes,’ Political Studies, vol. 37, pp. 421–30; Kenneth D. McRae, December 1979, ‘The Plural Society and the Western Political Tradition,’ Canadian Journal of Political Science, vol. 12.
(14) John Stuart Mill, 1991, On Liberty and Other Essays, New York: Oxford University Press, p. 17.
(15) Ronald Dworkin, 1977, Taking Rights Seriously, Cambridge: Harvard University Press, pp. xi, 176, 188.
(16) Ernest Barker, 1951, Principles of Social and Political Theory, Oxford: Clarendon Press, p. 71.
(18) For an elaboration of the thesis see, Thomas Pogge, 2002, ‘Moral Universalism and Global Economic Justice’, Politics, Philosophy and Economics, 1(1), pp. 29–58.
(19) John Rawls, 1996, Political Liberalism, New York: Columbia University Press, p. 37.
(22) Gray and Galston, adopt more radical and robust versions of political pluralism than Rawls. John Gray, 2000, Two Faces of Liberalism, New York: The New Press, p. 16; William Galston, 2002, Liberal Pluralism, Cambridge: Cambridge University Press; and William Galston, 2005, The Practice of Liberal Pluralism, Cambridge: Cambridge University Press.
(24) David Beetham (ed.), Politics and Human Rights, Oxford: Blackwell.
(25) Whether it is for the protection and preservation of individuals within these groups or for the collectivity per se is a matter of some debate. In one interpretation collectives matter only to the extent that they affect actual individuals and that beyond this they have no special moral primacy as cultural groups are fluid categories with no natural primacy like the individual. See for instance Chandran Kukathas, February 1992, ‘Are There Any Cultural Rights?’ Political Theory, pp. 108–13. However whether collective rights such as the farmers' rights accrue to the individual within the group or to the group per se is not of much concern to us here. Any right may be subject to varying degree of interpretations by its endorsers.
(26) See, for instance, Vernon Van Dyke, April 1977, ‘The Individual and the State, and Ethnic Communities in Political Theory’, World Politics, vol. 29, p. 369.
(27) Michael Brown, April 1998, ‘Can Culture be Copyrighted?’, Current Anthropology, 39(2), p. 194.
(28) Nijar argues for two legal principles as the basis for vesting the custodianship rights of local communities producing an innovation: (a) Constructive Trust: ‘when property has been acquired in such circumstances, then the holder of the title (to these rights) may not in good conscience retain the beneficial interest: equity converts him into a trusty.’ (b) Higher Trust: The recognition in Biodiversity Convention of governments possessing sovereign rights vis-a-vis their resources creates a higher trust. This ‘imposes on the government an obligation to honour it in relation to those it holds the rights in trust for (that is, the community)’. For details see, Gurdial Singh Nijar, 1994, ‘Towards a Legal Framework for Protecting Biological Diversity and Community Intellectual Rights—A Third World Perspective’, TWN Discussion Paper, TWN. Available at (last accessed on 16 January 2008).
(29) D.A. Posey and G. Dutfield, 1996, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities, Ottawa: International Development Research Centre; Posey Darrell and Graham Dutfield, ‘Mind The Gaps: Identifying Commonalties and Divergences Between Indigenous Peoples and Farmers Groups’. Draft prepared for the 5th Global Biodiversity Forum. Buenos Aires, Argentina 1–3 November 1996 (Oxford Centre for the Environment, Ethics & Society. UK). Available at http://www.gbf.ch/Session_Administration/upload/Posey%20and%20Dutfield.paper.doc (last accessed on 12 February 2008).
(30) Upendra Baxi, 2007, Human Rights in a Post Human World, New Delhi: Oxford University Press, p. 1.
(31) Esteva Gustava, and Madhuri Suri Prakash, 1998, Grassroots Postmodernism, London: Zed Books, pp. 118–19. Quoted in Upendra Baxi, 2007, p. 1.