ISHTIP at Penn, part 3

Session 1 | Ellen Goodman (Rutgers), Moderator

 

Access and Development: The History of ‘Development’ and WIPO

Sara Bannerman (McMaster University)

Commentator | Christopher S. Yoo (University of Pennsylvania) (Yoo presenting Bannerman’s paper, followed by responses from Bannerman)

 

First, idea of “development” in IP discourse has changed over time; initially not focused on economic growth but did become so over time. Second, idea that economic growth went hand in hand w/development came under sustained critique, but was not successful in displacing that idea. Third, some reasons for persistence of old vision/incompleteness of Access to Knowledge’s ability to change the narrative.

 

First: Paper uses a natural language processing technique to look at underlying documents in major int’l treaty events to study references to “development.” Four basic meanings. (1) perfection of authors’ rights. (2) Development of int’l institutions. (3) Development of literature, arts, and culture.  All were present in fairly strong terms; (4) economic development started dead last, but starting in 1952 all the others dwindled rapidly.  See from post-Marshall Plan Europe spillover to developing nations; changed how development and IP were understood.

 

Timing: this was announced by Truman in 1949 but flowered in 1960s: proposed Stockholm revision to Berne Convention was supposed to have a development agenda but wasn’t well received/didn’t generate changes in law.  Even the word development constructs a hierarchy.  Developing world is supposed to aspire to what developed world has attained.  Decolonization movement, legacy of imperialism.

 

Movements come along: Friends of Development and Access to Knowledge question tie b/t strong IP rights and economic growth.  2004-2007: we need a new paradigm of how we govern knowledge.  Traditional assumption that everything should be IP-based needs to be rethought.  No concrete proposals, but started to talk about over-commodification; WIPO should balance costs and benefits of IP protection.  Some limited progress, but no major move away—this movement created rhetorical gains but didn’t significantly displace the economic growth position in int’l law.

 

Why?  Three major factors: Ideas: development is a conceptual map that is hard to displace.  Note that WIPO antedated the UN, and the growth vision didn’t mature until post-WWII era along w/UN. But now growth vision is wound into how we think about IP.  Second, growing importance of globalized, mobilized, coordinated industry groups.  Wane and wax of civil society: official authority to submit proposals. In the 80s civil society organizations had more power to submit proposals than in 1960s, but still A2K not successful.  Third, WIPO as organization with roots in colonial era; WIPO has a view built into its DNA that it exports to states.  Tension: if we have a growing discourse of public interest, that would start us moving the status quo.

 

Comments: Would like to know more about these documents: what were they about, who were they from?  Would also like to know absolute values of references to development, and how that’s changed across discourses.

 

Ambiguity between how much of the discourse in A2K is targeted at patent v. copyright.  The paper seems focused on copyright, but it seems broader than that.  Originally grew out of access to medicine, and that really is about patents/R&D.  Industrial knowledge/creative knowledge. Sometimes A2K uses that ambiguity strategically to make access mean whatever is useful at any given time.

 

How did WIPO change?  (Policy laundering—rightsowners move to trade agreements as WIPO proved less hospitable?)  Civil society: how WIPO participated in the process—who comprises A2K, how do they get funding, how do they identify topics to work on. Tons of civil society actors exist, coming from different places; these are the entities that have become influential in the WIPO process as opposed to others like Creative Commons. Why?

 

Traditional notion of int’l law is power projection of individual states that are normatively neutral and you don’t look inside them.  We have, in last 20 years of int’l law, added democracy as a global value. At the verge of becoming strong enough to be imposed back on sovereign states as a global norm.  But that argument was more convincing 10 years ago than today—look at the Ukraine; China’s rise.  We would like to have Chinese IP—trying to move outside traditional frameworks. Islamic countries: very different values.  World looks more pluralist; idea of finding global public interest norms about sharing knowledge seems less plausible to him today.  Do like cost-benefit analysis introduced by A2K. But there’s a polar quality to advocacy positions.  We have access/incentive tradeoff; even if our reasons for providing access are not purely economic, we have an awareness that there are tradeoffs; we do want to fund R&D for medicines somehow. Gray markets; etc.  If we don’t restrict reimportation, we should accept a single price and a loss of ability to fund R&D.  There is a tendency to ex post opportunism: once IP is created, let’s get it shared as widely as possible, but that’s not sustainable on an ongoing basis.  (I’m unaware of any A2K work of any depth that doesn’t address this question, actually.)

 

Bannerman: Full book will be coming out soon.  Projects continue to support IP as power tool for development—money is going to fund patent and copyright offices to provide more tech.  Very few projects dedicated to funding different types of access/public domain; those projects tend to be small scale.  Developing countries have gained more voice than they once had, though that doesn’t translate to real dominance at WIPO.  Book does trace civil society actors in more detail and how they went about engaging with the debates about © and Berne. But by the time they come with the ability to participate in a real multilateral organization, now states are setting the agenda; the groups are more present in a way and have official delegations; they lack the agenda setting power they used to have. At one time you would’ve found them inside the state delegations: huge transformation in means of engagement w/int’l copyright. Many factors, including inability to leave Berne b/c of other agreements, serve to lock in the existing system.

 

The idea that IP could be balanced in light of the history recounted in the book is, if not baseless, not supported by the history of who is at the table; groups invested in the outcomes are often not there or almost unrepresented.  The idea of balance was promoted by A2K but the term has been twisted around and used in ways opposite to what’s intended.  There may be too much ideology in the A2K movement, but not sure that “balance” is a way of getting us there.

 

Q: In terms of explanation for resistance to development agenda: New players arise—global platforms/new corporations funding A2K.  Why don’t they capture an organization like WIPO, as we see them do on the national level?  WIPO is an organization that registers patents.  Deliberates on © treaties, but it’s also a money machine for the UN.  Another issue: WTO is now undertaking role in enforcing treaties; no longer a role for WIPO—development agenda comes on board only as WIPO loses relevance.

 

A: competition w/other organizations has provided moments where change is possible at WIPO; can grasp on to changes to maintain centrality/legitimacy in WIPO system, so WTO is quite important. See also WIPO work on traditional knowledge.  Marrakesh Treaty for visually impaired: tremendous success b/c first time civil society set the agenda since Berne; but maybe this is a small issue that’s been hived off and it was possible to get consensus. Other proposed limitations/exceptions: maybe not.

 

Yoo: WIPO used to be locus for int’l IP negotiations; regime choice is now endogenous, and US consciously chose to shift negotiations to GATT, where bargaining environment and voting was different.  Then shift from multilateralism to bilateralism, now regionalism: TTIP, TPP, Europe’s attempt to adjust ©.  Civil society and multistakeholder nontraditional governance has more opportunities to bypass public law altogether—fascinating opportunity.  (For whom?)  Google and Samsung: A2K for patents; in ©, intermediaries want A2K but not content providers. Certain patent coalitions do not completely move over to ©. Ideally big corporations would fight each other to standstill. 

 

Q: pressure to make unanimous decisions at WIPO has an effect.  How did this happen?

 

A: Book does discuss unanimity: the ways in which it’s been interpreted; within the standing committees, the chair interprets whether or not there is unanimity.  And that can happen even with strong opposition by state representatives.  Can stand in way of maximalist IP agenda, but sometimes it’s declared to exist when it doesn’t seem to be true.

 

Q: “Development agenda” hides multiple agendas—more radical agendas exist, some crushed quickly—like complete transfer of technology.  Western publishers explicitly set out to put African publishers out of business in 70s.

 

A: Agree: there are many development agendas.

 

Peter Jaszi: WIPO’s greatest failing may be in its educational activities, heavily weighted towards maximalism and less transparent/more difficult to intervene on than official activities. Nondeliberative functions that, partly as a function of competition w/WTO, that the organization has undertaken deserve more attention.

 

A: one of the main points of development agenda was more transparency in education/technical assistance; probably failed in that regard.  Contributed to ballooning of WIPO and regional offices around the world.

 

The Body as Slippery Object, 1900-2015

Kara Swanson (Northeastern University)

Commentator | Rebecca Tushnet (Georgetown University)

 

I’m unfamiliar with the mode of presentation here, so I trust you’ll attribute any flaws to the presenter and not to Professor Swanson’s fascinating paper, which considers the human body as a “slippery object” that resists classification in multiple systems of knowledge production—or, I would add, material production—including the patent system.  The boundary between nature and culture is a long-standing question, with specific application in patent law: Patent examiners and courts need to separate the categories of the natural versus the human-made in order to separate unpatentable nature from patentable human-made technology.  Gene patents in particular mean that something is separated from the body and turned into technology—blurring the boundary of the self and generating unease and even anger in some people.

 

Swanson considers disputes over gene patents in light of a history of disputes over the status and treatment of milk and blood, identifying a long-standing tension about the boundary between natural and artificial as applied to the body.  In historical context, the current legal focus on natural v. human-made as the key characteristic separating ownable intellectual property from public domain nature replaced an earlier dichotomy: Americans earlier learned to tolerate body products as technologies by considering them as personal gifts, focusing on a distinction between gifts and commodities that diverted attention from the difficult-to-resolve question of natural vs. artificial.

 

The overlay of the patent system onto the human body disrupted this acceptance of human-sourced technologies.

 

First, a brief runthrough of the patent situation: In Diamond v. Chakrabarty, the Supreme Court ruled that a lab-created bacterium was patentable. This, along with various scientific advances, led to a flood of gene patenting.  Myriad Genetics patented certain gene sequences associated with heightened risk of developing breast cancer.  The patents were used to create highly lucrative tests and to preclude other researchers from developing tests for breast cancer and doing other research.  Women’s groups and public health advocates collaborated to challenge the Myriad patents, a challenge that reached the Supreme Court.

 

The key legal question was whether an isolated gene sequence in a form not found in nature constituted a patentable innovation.  Was the process that led to the Myriad patents more like baking (transforming raw into cooked) or more like snapping a leaf off of a tree, to take a particularly notable use of analogy?

 

The Supreme Court ruled that purified naturally occurring sequences, known as gDNA sequences, remained a product of nature even when isolated in the laboratory, while sequences created in the lab to contain only coding sequences, known as cDNA sequences, never existing in the body, are inventions.  Public health advocates touted this as a victory for the boundaries of patent and the sovereignty of the body, though its long-term effects remain uncertain.

 

Swanson asks us to consider that there’s a previous history of removing substances from the body, working on them, and making something understood as new from them: specifically human milk and blood—collected, pooled, and treated for safety.  Before WWII, there were extensive milk and blood banks, and an attempt to commercialize them, including a debt and credit model for blood.  These early 20th century practices generated deep public discomfort with the ways in which these products were bought and sold. Bankers—that is, doctors and administrators—wanted to use a biomedical model treating the human body as a source of fungible body products, like carrots or silverware (and here I pause to note the specifically domestic and thus feminized connotations of these comparisons: at a time when industrial production as well as mass consumption was a preoccupation of planners, it’s notable that the blood and milk bankers chose these specific products rather than cars or sutures).

 

Howeve,r suppliers and patients alike resisted the commodity characterization, retaining traditional understandings of milk and blood as natural fluids even when bottled and sold apart from the body—among other things, they cared very much about the race of the supplier, leading to various discriminatory practices.

 

Unconfined by the strictures of patent law, the blood and milk bankers didn’t have to choose between the natural and the technological. This is not to say they weren’t governed by law, specifically tort law, given that treating blood as a product raised liability issues when the blood was dangerous. Faced with the resistance to commodification, managers of body products gave up on a commercial production model, and settled instead on a model that could acknowledge and even reinforce the human aspects of these body-derived technologies, while also preserving the anonymous and technological aspects: the concept of the gift. This retreat from direct commercialization of bodily products had the benefit of moving back from products liability to medical malpractice as the limit of liability for causing harm in treatment. 

 

Beginning in the 1960s, state medical societies successfully urged passage of so-called “blood shield laws,” state laws that removed blood from product liability law by decreeing it to be part of medical services and not legally within the category of “good.”  As for milk, in the 1960s and 1970s there was an increasing emphasis on human milk, even in bottles, as natural. The women who organized these exchanges, and those who provided extra milk to babies, eschewed payment. “We don’t buy and we don’t sell. We don’t believe a price can be put on human milk,” said one.  Such discourses immediately put me in mind of sociologist Viviana Zelizer and her work on the ways in which market and nonmarket transactions interact, especially in areas of intimate social relations—I commend her excellent book Pricing the Priceless Child, about the rise of life insurance for children precisely as children became economic burdens rather than benefits.  After all, even in a gift model, it still costs something to get the milk from breast to unrelated child—we are just treating the central transaction as a gift transaction, but the economy around it doesn’t disappear.

 

The gift model succeeded so well that people may not even know about the alternatives.  The National Organ Transplant Act, passed in 1984, bolstered the gift categorization, making unpaid suppliers, who were merely voluntary in blood and milk banking, mandatory for the next generation of body products used for transplant: human organs could not be sold for transplant.  One related consequence was the result in the tort case Moore v. University of California: the California Supreme Court held that, because human body parts weren’t treated like marketable property by the relevant laws, a patient did not own cells that had been extracted from him under false pretenses and used by his doctors to develop an incredibly lucrative and patented cell line.

 

The court refused to recognize property in Moore’s cells specifically because to do so would implicate Moore in the commercialization of his own body, thereby recategorizing people and human-sourced products as commercial objects.  As a concurring Justice wrote, “Plaintiff has asked us to recognize and enforce a right to sell one’s own body tissue for profit. He entreats us to regard the human vessel — the single most venerated and protected subject in any civilized society — as equal with the basest commercial commodity. He urges us to commingle the sacred with the profane.”  But this condemnation of Moore’s attempted boundary-crossing involves a lot of irony.  First, given that the court drew guidance from laws about the disposal of human body products, it essentially ruled that Moore’s cells were, once removed, what Swanson calls “biotrash.” Second, Moore’s body was commercialized—just not by him! Instead, profit and control were reserved to the people the court saw as the real creators: the doctors who received a patent on the cell line developed from Moore’s body.

 

Swanson concludes that the category of technological gift seemed a false promise to those like John Moore. It no longer offered recognition of a kind-hearted source of medical services, but seemed a hypocritical attempt to deny property status and ownership to bodily mateirals that were simultaneously commercially exploited by for-profit entities. The body, because it was natural rather than technological, became a public domain natural resource. As Swanson points out, the rush to patent genes from living organisms was repeatedly likened to a gold rush, as if bodies were unoccupied land—as opposed to, like California in the 1840s, both previously occupied and lushly productive.

 

The gift/commodity distinction could not substitute for the natural/technological distinction in a legal framework that required identifying patentable inventions.  Swanson proposes that the discomfort and outrage sparked by Myriad’s patents was motivated in part by the disruption such a patent makes to what we have carefully taught ourselves about body products, commercialization, and the human, individual qualities of disembodied body parts.  Patents on human-sourced inventions commodify body products withouth acknowledging the supplier as a beneficent giver.  If we support body product patents, then, we must develop a new narrative that honors the body’s slippery status.

 

Swanson briefly suggests that there are several contradictory options: First, we could take more seriously the fact that the patent act includes the terms “inventions and discoveries” within patentable subject matter. The common meaning of “discovery” as something existing in the world, newly brought into the realm of human knowledge, has been written out of patent law by statutory interpretation and the product of nature doctrine. By loosening patentable subject matter to include discoveries as well as inventions, patents would not necessarily cover only the technical or the human-made. What would make a discovery patentable would be the act of recognition of the value of such products, thus making them new, rather than novelty in their existence as newly created.

 

Second, patent doctrine could be adjusted in the direction that the Myriad plaintiffs urged, and which has been recently suggested by the America Invents Act prohibition on inventions “encompassing a human.” A complete ban on patents to human-derived inventions would likewise avoid the need to categorize them as natural or manmade, avoiding the problem altogether.  Swanson considers this an undesirable overreaction, however.

 

Third, the patient-supplier could be formally acknowledged as an inventor within the terms of patent law, as one who “contributed to the conception” of the invention. This would probably require statutory revision to include the provision of parts of oneself as a form of inventorship—or other forms of credit could be given.  We might take instruction not from the story of John Moore, but from that of Henrietta Lacks: a poor African-American woman whose cells were the basis for an important cell culture, without her family’s knowledge or consent.  Ultimately after extensive publicity, the Lacks family received credit, but no compensation or control.  I would go further than Swanson and suggest considering some sort of mandatory payment, which was also discussed by the justices in the Moore case as an option for the legislature if not for the courts.  Different kinds of contributions might deserve different kinds of recognition, but by offering only co-ownership as an inventor or credit in the form of attribution rights, we may miss an opportunity to recognize the human body as a particular source of value.

 

Swanson concludes that the gift/commodity dichotomy is misguided and harmful as a basis for the law and policy of body product exchange, causing scarcity of body products and injustice in their allocation. From that perspective, she says, one could argue that rather than adapt patent law to support the category of technological gift, patent law as it currently exists should be left alone—which I think means forcing us to take another look at the nature/culture dichotomy and to make choices about it.

 

A few comments: the paper could fruitfully grow in the direction of taking a firmer stance on which of these options should be taken, and the costs and benefits therefrom. Seems pro-commodification, but commodification and propertization might not be the same thing, as we heard earlier in the day.

 

I would urge a more explicit feminist analysis as the paper expands: body/mind, nature/culture, gift/market are of course heavily gendered associations that map onto each other and onto cultural constructions of femininity and masculinity.  Myriad then might be seen as a victory for a certain set of women’s interests, but perhaps at the expense of an opportunity to mount a more fundamental challenge to the dichotomies that often serve to oppress women.

 

Here, I couldn’t help but think of Donna Haraway’s image of the cyborg, a female/feminized figure whose boundaries are ever-changing, reaching out to incorporate parts of the external world. Donna J. Haraway, Simians, Cyborgs, and Women (1991). Haraway’s cyborg highlights both the possibilities of technology to enable changeability and the threat that lurks along with the promise of the power to reconfigure oneself. “[C]yborg fluidity insists that borders between works matter because they are permeable.”Of course this is frightening. Penetration of boundaries is often threatening, potentially disruptive, but penetration is also the condition of creativity, outside mixing with inside and generating something new.

 

Haraway’s cyborg also draws our attention to other kinds of boundary violations: according to the dichotomy posed by many of the sources Swanson discusses, if it’s technology, then it’s not the body: but that’s not true for many bodies.  My glasses, another person’s pacemaker, another’s wheelchair—these are conditions of our embodiment in the world.  Not to mention the even less visible technologies that clothe us and groom us: the body is not a person without property—that’s why prisons and psychiatric hospitals and militaries strip inmates of their personal effects.

 

Power: Who is expected to give, and who is entitled to be paid? I was struck by the contrsat between blood banks v. traditional, personalized gift and obligation networks: severing of reciprocal obligation except in the most attenuated and general sense.  Reminded me of the so-called sharing economy and current discourses about technoserfs who are induced to create value for large companies through their own affective engagement with communities created by for-profit organizations.  Suppose we did change the law so that body products can be patentable: would it change anything for the bodies that supply the raw materials for biotech firms, or would it simply change which large entity finds it easiest to benefit from these products? 

 

Swanson: Body products developed as forms of property but not forms of IP: the comparison tries to tease out what part of the Myriad controversy is due to patent law and what is not, in terms of whether we do or don’t need to change patent law to deal with it.  Have another whole paper about body products as property and the difference between commodification and propertization. 

 

Power: Milk and blood outside the patent system—both have the same meaning in 1900 as the gene in 1990 about how we understand that it carries the identity of who we are and how we’re related to intimate family members. Separation of one to one, face to face interaction (first blood transfusions involved body next to body); moved from direct exchange to anonymizing institution—bank—that says each unit is equivalent to each other. Markets and gifting both severed the individualization.

 

The market in human milk: maternal/feminine gifting—altruism and kindness.  Today there’s a shift: there are two separate for-profit companies that have patents for forms of human milk—one shelf-stable.  They’ll pay, which makes the donor world afraid that their supplies will dry up, pun intended.  Women who sold their milk in the early 20^th century were not mercenary: they could afford to stay at home and nurse by selling milk.  Same could happen again, as Zelizer has described.

 

Q: regionalism: wet nursing in the South?

 

A: Replaced wet nursing b/c they became harder to get as 19^th century advanced and there were more options for women to earn money outside the home. Separate that from wet nursing under slavery, where entire reproductive capacity is taken over by enslavers. Wet nursing was never as established in the US as in Europe; small portion of Southern population; mostly wet nursing occurred b/c there was no mother’s milk supply available.  First mother’s milk station was founded by young Harvard grad trying to save a baby who needed a wet nurse.  Thought rushing around looking for a wet nurse was an inefficient use of his time. Found out he had to pay women to keep nursing—you can’t wait for a wet nurse job/keep nursing unless you can survive. Then he moved to having them express milk in bottles.

 

Handed to women in bottles: Seemed more anonymous; less worry that particular characteristics of wet nurse (e.g., Irish in Boston) might negatively affect a Brahmin baby.

 

Madison: Potentially a gap in the analogy b/t blood, milk, sperm and genetics/gene patents, in that the former focus on the material itself. It’s plausible to say there’s an individual human owner or origin. But in genetics, a part of the debate that affects nature v. manufacture character is that the genetic information doesn’t belong to/originate w/that human, but rather there is shared/collective interest in that info.

 

A: Moore goes to that: involves both—property and IP.  Moore’s particular cells are particularly valuable b/c he has something that’s not shared but its value is only realized through abstraction.

 

RT: I think that’s a matter of POV.  The whole process of producing milk and blood is to make it fungible—we don’t care about the genetics once we’ve typed the blood/literally homogenized the milk.  So it’s arguably less plausible to say the blood or milk is individualized versus genes found in one person.

 

Q: using notions of property to reinscribe a geneaology, recentralizing role in producing value: similarity to Marvin Gaye/Blurred Lines case—racial justice aspects.

 

Q: note that you have to keep records of provenance for blood—people in the UK during mad cow can’t donate, etc. Ads encourage men to give blood b/c women give more blood than men—principle of public duty. But if I can’t, what does that do to my sense of citizenship?  (Let me tell you a story about the social meaning of breastfeeding.)

 

A: stories of African-Americans being turned away from giving blood in the South; or they’d take it and not use it.  Now: HIV status/being gay—badge of citizenship. The constant tension b/t anonymizing and being concerned w/ the nature of the person who is giving.  (If we focus on the recipient, things look more equal.)

 

Moral outrage at company trying to buy breast milk in Detroit—exploiting poor women.  We are not necessarily becoming more relaxed over time about outputs of our own bodies.

 

Jaszi: Could one do a hierarchy in levels of distaste/disapproval?  (Jonathan Haidt’s work?) Sperm, cadavers, fetal parts—consider what’s going on w/Planned Parenthood. Disapproval of commodification would probably be greater for things that come from women’s bodies. (The work on eggs versus sperm would tend to confirm this, though someone said there was an international market in women’s hair.)

 

A: interesting in light of blood: blood donor historically quite gendered despite its formal gender neutrality.

 

Q: other countries do it differently: exploitation of body parts in China.  Also consider religious beliefs around the use of the body: it’s part of the universe that needs to be respected—not related to capitalism per se.

 

A: some countries have tried to set up milk banks and failed, b/c milk drinking = relation between the donor and baby for life (and any other children are milk siblings).