Equipment for Battles on
these private rights and its incessant
Intellectual Property Rights
Dwijen Rangnekar
W
hile writing this review I
came across a constant
stream of headlines and up-
dates concerning intellectual property.
One headline reminded me that the
Supreme Court decision on Glivec, a case
that is substantively treated in this book,
was due in April (the ruling is since out).
Another bemoans the fate of Belgian
chocolatiers who now want a geogra-
phical indication for their (distinct?)
pralines. Elsewhere I read about the US
extradition efforts to get Megauploads
Kim Dotcom from New Zealand for
alleged copyright infringement that
occurs via users of his cloud-storage
service. Then a story informs me of the
San in southern Africa having previously
secured benefit-sharing arrangements
with the South African governments
Council for Scientific and Industrial
Research for uses of Hoodia, now plan
to include the Nama in sharing these
benefits. Jottings from a workshop on
postcolonial legality inform me of how
falafel is being (has been?) deliberately
appropriated in Israel as a symbol of unity
for the nationalist movement a signifier
of Israeli pride while evacuating it of its
Arabic origins. As I puzzle over a news
that The Pirate Bay might have relocated
(some?) of its servers to North Korea to
elude the lengthening arm of Hollywood,
I also hear that the Association of Stu-
dents for Equitable Access to Knowledge
have been made party to the case that
sees Oxford University Press take a
photocopier, Rameshwari Print Services,
and Delhi University to court for prepar-
ing course packs.
Clearly, stories about intellectual pro-
perty are manifold and aspects of their
workings or rather, non-working inter-
penetrate numerous dimensions of our
everyday lives. A single overarching
rhetoric would fail fantastically in
Economic & Political Weekly EPW august 24, 2013
book review
Review of Knowledge as Property: Issues in
the Moral Grounding of Intellectual Property
Rights by Rajshree Chandra (Oxford University Press),
2010; paperback Rs 450.
capturing this multitude of issues even
its little complexity would defeat such a
narrative. Yet, the questions that we can
ask of intellectual property can be incredi-
bly simple and sharp. In seeking to weave
through the rhetoric that envelopes
intellectual property, this monograph
adopts an interesting duality. Part I
concerns itself with framing intellectual
property and thus, seeks to equip the
reader with a critical understanding of the
principles that have often been deployed
to rationalise and enhance intellectual
property. Usefully, the critique extends to
a discussion of the politics of knowledge
which notes how systems of knowledge
are themselves epistemological islands,
so to say, that seek to define what consti-
tutes knowledge and dismiss all else. A
consequence of privileging particular
knowledge systems in part mediated
by institutions of intellectual property
leads Rajshree Chandra, in this book, to
declaim the Agreement on Trade-Related
Aspects of Intellectual Property Rights
(TRIPS) as a phenomenon of cognitive
injustice. In Part II, the book takes the
reader through a series of case studies
that highlight one or another set of con-
cerns. Broadly within a human rights
framework, though, with other elements
too, the cases include health (Glivec),
farmers rights (Monsanto) and tradi-
tional knowledge (Neem).
Self-Ownership and Utilitarian
What then are the core principles of
legitimation that sustain the edifice of
intellectual property? That not only
vol xlviii no 34
historically justify the introduction of
intrusion elsewhere to commodify one
or another object and, via TRIPS and
associated developments, to globalise
this architecture. While noting several
different philosophical theories, Chan-
dra attends to two dominant ones:
theories of self-ownership and utilitarian
justifications. Interestingly, the critical
reading of these theories of justification
are presented with a sense of their
times; thus, relating them to transforma-
tions in social relations of production.
For instance, the reader is reminded that
Lockean ideas of self-ownership, couched
within a frame that sought to valorise
the exertion of an individuals labour,
was central to rationalising the enclo-
sure of common lands in 17th century
England. Problematic as a theory of self-
ownership though it might be, Chandra
is drawn to critically dissecting (and dis-
missing) its application to intellectual
objects. For instance, if the normative
fulcrum is that labours exertion deserves
a reward, would the absence of effort
warrant no reward? Even navigating
this conundrum, Chandra, drawing on
Hettinger among others, asks whether
and on what grounds should the reward
necessarily be market determined. In the
final analysis, for me at least, it is channel-
ling Rawls and Dworkin that focusing on
the moral arbitrariness of distribution of
individual talent explains how these
theories legitimise the rapid development
of inequality.
Utilitarian theories of justification of
intellectual property locate their foun-
dations in the philosophies of Jeremy
Bentham and John Stuart Mill and, to
an extent, located in dismantling feudal
privileges. As a consequentialist philo-
sophy, utilitarians argue that society is
better-off when particular resources are
governed by private property. With respect
to intellectual objects, a consequentialist
sense prevails in that private property
rights act as incentives (for investments).
And the private management of these
appropriated resources prevents their
overuse/depletion. Though often glossed
over the principle is invariably couched
27
BOOK REVIEW
in terms of public welfare. For example,
the US Constitution justifies intellectual
property rights as a means to [T]o pro-
mote the Progress of Science and useful
Arts, by securing for limited Times to
Authors and Inventors the exclusive
Right to their respective Writings and
Discoveries and not for the private
gains of authors and inventors.
Drawing on two overlapping litera-
tures evolutionary economics of tech-
nology and sociology of knowledge
Chandra maps out a range of deficiencies
in utilitarian theories. For instance, the
incentive of patents might itself generate
a race for the prize; thus leading to over-
fishing and a potential waste of resources.
Or, as is increasingly being noted, the
proliferation of intellectual property
rights might erect formidable road-blocks
in the innovation pathway. To explain,
stronger rights and the presence of multi-
ple rights make it difficult for someone
to assemble the full set of rights to pursue
follow-on innovations; thus stalling tech-
nological progress. This problem called
anti-commons, tends to apply primarily
to technologies that are cumulative
where access to existing and previous
vintages is essential for the mode of
technological advance. While the prog-
nosis of the evolutionary economists is
compelling, others suggest that private
initiatives of automatic cross-licensing
can overcome threats of anti-commons.
Compossibility
In many ways, the monographs richness
comes out in the three case studies in
Part II. Not only do these three chapters
document the injustices of a system
of intellectual property rights, but, the
reader is invited to travel through the
detritus of legal rhetoric and court cases
and witness the infringement of rights
as intellectual property rights triumph.
Chandra seeks to
argue that [intellectual property rights ought
to be established, not merely on the grounds
of utility, natural rights, liberty, etc, but also
for the effects that they may generate for oth-
er rights or, to put it differently, in terms of
their compossibility with other rights (p 181).
This framing punctuates Chandras
important reminder to countervailing
(intellectual?) property rights, such as
28
farmers rights or rights in traditional
knowledge. A public discourse of hope
often accompanies intellectual property
and has secreted itself into scholarly and
activist consideration of countervailing
rights. To this, Chandra raises a chal-
lenge that farmers rights need to
move beyond conceptualising their
rights as counter to breeders rights.
They need to be conceptualised outside
the language of property rights to in-
clude their developmental rights, rights
which secure, protect and enhance liveli-
hood, food and the knowledge rights of
farmers (p 233).
Reading the chapter on the Glivec case,
one is reminded how TRIPS consolidates
the differential status of countries and
citizens in terms of access to medicine.
As Chandra notes, TRIPS will do little in
generating incentives for research into
neglected diseases those diseases
that afflict the majority of the global
populace; instead it raises formidable
barriers to production and trade in
generics. In this respect, the ingenious
idea of Section 3(d) in Indias patent
law, which seeks to prohibit patents for
a newform of a known substance
[which] does not result in the enhance-
ment of the known efficacy of that sub-
stance reflects a global concern that
patents are being granted for incremen-
tally modified drugs which then extend
patent terms on the molecule and delay
entry of generics. The decision will have
repercussions on global access to medi-
cine both in terms of the residual space
for national interpretation of TRIPS
provisions and in terms of delimiting
perverse patent practices of big pharma.
In shifting focus to the north, Chandra
reads through a case on farmers rights
in the US: McFarling vs Monsanto. The
book allows the reader to reckon with
the power through which institutions of
intellectual property are defined and
challenged. In this case, Monsanto sued
McFarling for violating the licence terms
signed with the purchase of seeds from
Monsanto. To explain, overlaying intel-
lectual property in the seeds, Monsanto
has limited use license contracts with
farmers that grant use of seeds for a
single generation. Chandras reading of
the case recalls how a patent silently
august 24, 2013
extends to enclose second generations;
thus, eliminating the rights of farmers to
save and reuse seeds. Or, as I would
argue, the very reproducibility of seeds
which threatens the reproducibility of
capital is attended to by legal means. No
doubt, biological means to arrest the
reproducibility of seeds have also been
developed as the infamous terminator
technology testifies. It is here that
Chandras reading of farmers rights in
the International Treaty for Plant Genetic
Resources for Food and Agriculture is
useful but also a little wanting. The book
suggests that it is here that farmers
rights are located in a binding treaty
(p 245). While the treaty is a binding in-
strument, the provisions for farmers
rights are left optional to contracting
parties (cf Article 9(2), International
Treaty). This quibble aside, it would have
been useful to have Chandras instruc-
tions on navigating the conflictual rela-
tionship between farmers and breeders.
The attention to Indias legislative archi-
tecture the Protection of Plant Varieties
and Farmers Rights Act (2001) where
farmers rights have been legislated for
the first time is too brief to give the
reader a sense of whether they go be-
yond countervailing norms.
The monograph adds usefully to our
understanding of intellectual property
and will inform our critiques. In bring-
ing together a normative framing to the
public debate on intellectual property
and in taking the reader through a series
of cases, Chandra equips us for ongoing
and forthcoming knowledge battles.
Dwijen Rangnekar (dwijen.rangnekar@gmail.
com) teaches law at the University of
Warwick, UK.
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