Document(s) 14 of 20

This chapter discusses the democratic deficit that surrounds global rule-making. It then briefly outlines various scenarios for the future development of the food system and questions the roles the global intellectual property (IP) rules will play in this. Next it suggests that the current framework promotes an overemphasis on technological innovation while neglecting the need for social, political and institutional innovation. Finally, it discusses a range of ethical criteria for evaluating developments and changes as a way to bring about more equitable outcomes.

Introduction

This century there will be more people, new climate patterns and seismic political changes as new industrial and economic powers emerge on this planet. The challenge of ensuring everyone can eat sustainably and well, without the double burden of undernutrition and overnutrition, will be considerable. The future role of hundreds of millions of smallholder and marginal farmers in meeting this challenge is unclear and the farming systems best placed to do so are contested. Many factors affect the food system from local to global levels – from environmental change to the direction of technological innovation, market structures and trading arrangements. The rules and ongoing negotiations discussed in earlier chapters will play an increasing role in whether or not we are successful in meeting everyone's food needs in a sustainable way. This book has provided a brief guide to these interconnected negotiations, as discussed in Chapter 7, to enable more people to have a greater understanding of what is happening and so be more able to participate in shaping how these global rules develop and monitor the impact they have. The next sections draw out some important issues.

Global Negotiations – A Democratic Deficit

During my work on the UN Security Council, I had often been struck by a very obvious imbalance – between the diplomatic resources and skills of the powerful countries, and everyone else. … The numerous smaller UN missions struggle to cover the enormous and proliferating agendas of the UN General Assembly, Security Council and specialized committees with just one or two horribly overworked and under-equipped diplomats. …

Often those with most at stake are not even allowed into the room where their affairs are being discussed. This imbalance of course does not serve those marginalized, but nor, paradoxically, does it serve the powerful. In this complex and interconnected era, agreements that fail to take into account the interests of all concerned parties are not good or sustainable and they often fall apart. The ultimate effect is a less stable world. If people are ignored, they tend to find ways – sometimes violent – to get heard. (Ross, 2007)

As earlier chapters showed, these rules do not emerge from a relatively balanced representative interplay of interests but from unequal and sometimes coercive bargaining relationships in which the strong undermine the weak. Procedural fairness, which should be a key ideal in negotiating the rules around food security and biodiversity (see Chapter 9), has for the most part not been respected. Whether in WIPO, the WTO, the CBD or the FAO, the stronger states are better able to coordinate, participate, draw on expertise and play off weaker states against each other. Something similar happens in business between larger transnational firms and smaller businesses, farmers and consumers. Within states, farmers and indigenous groups are often suspicious, for various reasons, of government claims to be acting in their interests by protecting traditional knowledge (TK) or genetic resources, as the statements and actions of indigenous and farmers' groups indicate (see Boxes 5.4 and 8.4).

Negotiations in Geneva, Rome, Montreal or elsewhere discussed in this book take place a long way from the rural reality of smallholder farmers, indigenous peoples, landless labourers and shanty town dwellers. It can be hard for negotiators to understand and take account of such people's needs when they are part of a global jockeying for power, for trade advantages, and influenced most by the needs of the urban, corporate and diplomatic elites. The question thus arises of whether negotiators have too much power and if the institutions where they operate are appropriate for the challenges facing us.

As the preambles, declarations and objectives related to the various agreements show, fine-sounding language about ending hunger, farmers' rights and the like too easily becomes lost in a realpolitik of advantages and interests to be traded between states in different fora and is not acted upon on the ground. The TRIPS Agreement, for example, represents a kind of global regulatory capture in which just four major industries shaped global rules to suit themselves (Chapter 3). They did so partly by having strong states adopt their policies and partly by having those states insert IP into trade negotiations covering different areas, all of which had to be agreed as a single undertaking. A kind of trade poker then occurs, often when last minute trade-offs are made at the highest level on things that should be not be traded off as they are incommensurables, and where the benefits that might be gained will not go to those who bear the costs. In the case of IP, the benefits are largely speculative (developing countries' future innovation capacity) and the costs much more immediate and tangible (royalty payments and licensing fees).

As noted in Chapter 7 on linkages, both IP and trade regimes may need to be subject to other minimum global standards on such things as state and corporate respect for human rights, with a similar level of enforceability backed by sanctions – which should also be applicable to environmental, health and food goals – as is given to trade and IP goals through the WTO. Other elements needed to balance the globalization of minimum IP standards are stronger antitrust, fair competition and user rights rules, along with strict liability regimes for those introducing new technologies that affect biodiversity, ecological functions and environmental wellbeing.

Complexity and Coercion

Higher standards and various forms of business regulation are used by larger players to make their roles in the food system easier, or entry for smaller competitors more difficult, from nutrition labelling to production practices to trademarks. Today, stronger IP rules are seen by some as a way of locking developing countries out of the methods for development used by the richer, more industrialized countries or locking them into new technologies such as genetically engineered plants and animals and pesticide-resistant crops, which will be controlled by large corporations.

Similarly, increasingly complex rules tend to advantage the stronger countries and larger businesses. There are serious concerns that higher IP standards as well as complex access and benefit sharing regimes could disadvantage not only smaller countries and firms but also those working in agriculture, where informal innovation systems and exchange mechanisms underpin the innovation practices of traditional farming.

When weaker countries' negotiators do become more informed and better able to argue for their interests, they may face coercive measures to get them to desist. For example, this may happen to negotiators taking a strong position in the TRIPS Council that is disliked by richer countries. Some may be told by their superiors in the capital to back off following pressures from developed country capitals on ministers or presidents in developing countries suggesting that unless they quieten down the demands of their negotiators then trade preferences elsewhere may be affected. Or it may happen in free trade negotiations where the IP standards are forced up by the bigger player on a take-it-or-leave-it basis. The emphasis may be on the short-term potential gains to be made from trade concessions, which may bring more immediate, though not necessarily evenly distributed benefits, than the long-term often indeterminate costs imposed by higher IP standards.

To suggest anything else may seem naïve and unrealistic. Yet to tackle the enormous global problems facing humanity, such as extremes of poverty and wealth, climate change through global warming, dealing with diseases that threaten animal and human health, and loss of biodiversity, we need new forms of action, from global to local levels and not built on the old approaches to diplomacy and negotiation. We need action based on cooperation and sharing of best practices to deal with the challenges, not competition that pits peoples and societies against each other. For that, on the basis of performance to date, we need to rethink the way we make global rules and the nature of international negotiating processes. Ensuring food security requires action from local to global levels, but much of the current approach undermines and devalues the enormous capacity that exists for innovation and action at a local level done by those with the most intimate knowledge of the environment in which they live – the farmers, fisherfolk and herders who have managed and maintained agricultural biodiversity.

Alternative Futures

The rules we create shape our future and our future food systems. They encourage or discourage different kinds of roles for small farmers, different approaches to biodiversity, and different approaches to the distribution of wealth and power. Lang and Heasman (2004) describe two very different visions of our food future. They argue that we are moving away from a productionist paradigm, which has led to the industrialization of food production over the past 200 years and increased production to match population growth, to a conflict between two different, but science-informed, approaches.

One, which they call the 'life sciences integrated paradigm', has 'at its core a mechanistic and fairly medicalized interpretation of human and environmental health'. It envisages a highly technological, highly controlled, broad application, wide adaptation approach to the future of food, with large production units and professionalized supply systems from inputs and seeds to final consumer. This future is more monocultural, industrial, corporate-dominated and dependent on IP. It is also one that sees little or no future for smallholder farmers or semi-subsistence farmers, a view echoed by the OECD: 'The long-term future for most semi-subsistence farming households lies outside agriculture' (OECD, 2007). The rapid displacement of such farmers from farming and migration could cause major social and political upheaval in countries still with large farming populations. The World Bank is re-emphasizing the need to give a much higher priority to investing in agriculture for economic development after a long period of neglect (World Bank, 2007). While the focus on agriculture is welcomed, the appropriateness of Bank's proposals and their effects on poor people and the planet are being questioned by a range of civil society organizations (Actionaid, 2007; Murphy and Santarius, 2007; Oxfam, 2007).

The second approach is what Lang and Heasman call the 'ecologically integrated paradigm': 'Its core assumption recognizes mutual dependencies, symbiotic relationships and more subtle forms of manipulation, and it aims to preserve ecological diversity.' This approach sees biodiversity and diversity in general as a strength and says humans must live within ecological realities and work with them rather then dominate and ignore them. It wants to build on the millennia of experimental empirical work by farmers in diverse environments that have led to a huge range of agricultural biodiversity and to promote connection between producers and consumers; favours the micro, small and medium-sized enterprises, rather than the transnational; and sees a local to global hierarchy, where the local goes first. It promotes organic, integrated pest management, low external inputs, more skilled, open systems of exchange, family-farm-based biodiverse farming, healthy diets, and keeping cooking and farming skills alive from farm to flat.

There are other possibilities. One is collapse, be it economic, physical or a descent into violent conflict over resources or beliefs (Diamond, 2005). Another is based on extreme genetic engineering, synthetic biology, nanotechnology and the ideas of the transhuman movement, which looks to enhance human beings by genetic engineering and technological augmentation (ETC Group, 2007; Wolbring, 2007). This builds on the 19th-century positivist dream of domination and control of nature and assumes humans can do anything, have no biological constraints and can deal with any problem they create, including destroying the biosphere. Ultimately this vision sees humans – or at least some, wealthier, humans – being liberated from ecological and biological constraints and farming as unnecessary. Eventually, food will be synthesized from any feedstock, for example by producing proteins in fermentors and then spinning, texturing and flavouring them to appear like any form of meat. This is still science fiction, but a fiction some seem to be seeking to make fact. Maintaining biodiversity and developing more ecologically sound approaches, as envisaged by the CBD and the Treaty, are part of the attempts to avoid collapse, while the latter, technologically triumphalist, vision seems to recognize no biological limits, sees no difference between biological and other systems, and treats everything as a resource, able to be owned and patentable.

The one vision of the future that is not being facilitated and encouraged by the way IP rules are developing and affecting the direction of R&D is the ecological approach; yet that is probably the one with the best chance of working in the long term. Ultimately, there is a basic tension between IP and biodiversity that those in favour of global IP standards have failed or refused to discuss. IP owners do best (in terms of profit) if they have a global standard or product (Windows, Viagra, Roundup and so on) that is protected globally by high IP standards. Yet innovation in food and agriculture does best if it can draw on a rich biodiversity, a biodiversity that depends on fragile variables such as TK, local farming systems and free exchange of materials. By building a property rights system that rewards standardization and homogeneity, we almost certainly risk affecting those variables that underpin our systems of biodiversity.

Whose Innovation?

The current IP regime provides incentives for innovation in the formal sector by commercial interests but fails to provide incentives for the sustainable conservation and use of biodiversity by farmers. As Joseph Gari (2001, p23) from the FAO argues:

IP rights over life convey an asymmetric system of conserving, using, transforming, managing and controlling biodiversity. This asymmetry is detrimental to many indigenous and peasant people, who are precisely amongst those most in need of biological innovation and who can best carry it out.

The private rights of innovators or those investing in innovation protectable by IPRs have to be balanced by concern over the public wellbeing of the whole of society and the environment that may be affected by these innovations. As noted in a report by the Food Ethics Council (FEC, 2002), there seems to be an assumption that innovation is intrinsically a good thing, irrespective of what or where it is. But is that the case? To draw an analogy – this is like saying driving from A to B ever faster is a good in itself when in fact society places limits on the speed at which you may drive to reduce risks to other road users and the individual, and nowadays to reduce CO2 emissions. Perhaps there is a case for guarding against innovation without due care and attention, reckless innovation, and even causing death or damage by innovation. This may be of particular relevance for the impact on traditional and indigenous communities, where inappropriate innovations may damage or even destroy them, rather then support them and their innovation systems. There is a need to nourish and sustain the longstanding local innovation systems, such as varietal selection and soil fertility and risk management methods, of many farming communities, that are ignored by the current approach and to recognize the knowledge, skills and experience of local communities (Dutfield, 2006b; see also Abraham, 2007).

Most discussion about innovation focuses on technological innovation. For national politicians it is part of a mantra linked to competitive national advantage. IP rules are thought of in relation to how far they will help underpin that competitive advantage, which is one reason why many OECD countries are seeking to expand them. Yet what much of the discussion in this book suggests is that the most challenging areas we face call for institutional, social and political innovation to do things differently in the world, for the benefit of both the poor and the environment, if we are to have a sustainable food system and ensure food security from the global to the household level. As discussed in Chapter 8, the way the IP rules are playing out does not encourage sustainability goals but rather tends to focus R&D towards rather narrow approaches. These focus on products and processes that are protectable by different forms of IP, are subject to proprietary interests, fit commercial markets and do so in ways that advantage the bigger players, firms and countries. These ignore the need for R&D for the public good and indigenous and traditional innovation systems and seem unlikely to support the ecological approach to food and farming that is called for in the CBD and more recently by the Commission on Genetic Resources for Food and Agriculture at the FAO (Chapters 5 and 6).

Fortunately, there is some recognition of the wider importance of the IP system and the need for change within the IP community, as shown by the European Patent Office's scenarios project (Box 8.5). Some, noting how the IP system has changed in the past, argue that in the 20th century industrialized countries came to depend excessively on patents to reward innovation and that, with the growth of patent bureaucracy, the patent system has become a self-sustaining enterprise that needs changing (Box 10.1).

We need to go beyond the IP system for real change, however, and look to developing and using incentives and supports for innovation that enhance both livelihoods and environments, without the exclusion and monopoly involved in IP. One such alternative to IP is the use of prizes for innovation (Stiglitz, 2006).

Dealing with Complexity

Indirectly, we all depend on agriculture, but most of the poorest people in the world today still live in rural areas and directly depend on agriculture for their livelihoods. Farming is a site-specific activity, needing different approaches in different environments, and food habits are partly cultural and social expressions of relationships and beliefs. The trend of industrialized farming has been towards more linear agricultural systems – using fossil fuels, fertilizers, pesticides, antibiotics and mechanization as inputs to permit more industrial approaches to farming – bypassing the skilled, local knowledge needed to manage complex local ecologies (Weiss, 2007). At the same time as seeking to simplify the complex ecological requirements of production, the food system has developed increased complexity in processing and distribution. There are ever longer and more complex supply chains to consumers, who are segmented into ever more types. Added to this are legal regimes, also of growing complexity, of which those discussed in the book are perhaps the most recent. But this complex superstructure rests on a fragile ecological base.

In looking at how these varying and increasingly complex rules affect people, the key words to look at are who will bear the risks and who will get the benefits from changes, who is empowered or disempowered, and whose capacity to control is enhanced or reduced? By asking such questions the effects of changes will become clearer. And these effects need to be considered using various parameters. One tool to help in making clearer the impact of technological changes, and one that could also help in looking at the impact of these rules, is the ethical matrix (Mepham, 2005). This uses a number of basic ethical criteria that people generally use in one way or another when weighing up what to do and examines how an action, technology or policy affects different individuals, groups, environments and animals. The criteria used are how it affects the wellbeing of those groups and environments, how it affects their autonomy or freedom of action, and whether it is fair to the different groups or environments or favours some much more than others – in other words what impact it has on justice and equity (Table 10.1). Changes that promote the wellbeing of a few, or a firm or industry, say, while curtailing the autonomy or freedom of action of others (such as farmers), or that create injustice for many, are likely to be problematic. It might be telling, for example, to look at how IP rules are being used to place IP rights over real property rights, as discussed in the case of patent-protected genes in genetically engineered canola in the Canadian court judgement discussed in Chapters 1 and 5.

Table 10.1 A generalized example of the ethical matrix

Source: Taken from www.foodethicscouncil.org.uk

The approach to developing new kinds of technologies, or making new rules, from a smallholder farmer's or a consumer's or a biodiversity perspective might mean tackling different problems in different ways from those you might adopt from looking at them from a scientist's, IP lawyer's or trade negotiator's point of view.

Conclusion

While much of the public debate about the impact of global rules on IP so far has focused on access to medicines, this is likely to change as their impact on biodiversity and on access to food, knowledge, and the direction of research and development become more apparent. Food security, as briefly discussed in Chapter 1, is a complex matter requiring action from local to global levels (Box 1.1). Although definitions vary and many now adopt the term food sovereignty (Boxes 1.7 and 8.2), our need for food, in every society and in every time and place, past, present and future, will not change. Food connects us all and, apart from providing sustenance, is used in many ways in our various human expressions of culture, social systems and religious beliefs. The global rules discussed in this book will have a significant impact on our food future and on who controls it and for what ends.

The interaction between IP and biodiversity is producing two parallel experiments unheard of before. One introduces a set of minimum, more-or-less global, legal requirements on IP, irrespective of circumstances. These rules in turn are also fuelling the most rapid and biggest ever biological experiment on the planet with the food we eat and raw materials we use, as any living organism of commercial value is liable to be redesigned by private actors for private ends. Yet the IP system was not developed for biological systems, and its global extension has largely been brought about as a conservative, protectionist response to fundamental technical change by a set of industries whose business models may be outdated and outmoded but who want to retain and extend control of the system as it exists today. Moreover, this is proceeding without countervailing responsibilities and brakes being put on commercial firms through such things as antitrust and liability regimes, helped by a public failure to look at other incentives for biological innovation that builds on traditional systems or creates new ones. We are, but should not be, playing a high stakes poker game with the sustainability of agriculture upon which all our lives – directly and indirectly – depend. It would be ironic – and potentially tragic – if just as other sectors are turning to and seeing the value of open source, informally networked means for innovation (Benkler, 2006), farming and food, which has been based on such systems for millennia, moves in the opposite direction.

As with any guide, there is much more that could be said about any of the topics briefly covered here. But also, as with any guide, the aim here has been to elicit an interest in and inform about something that matters. Food matters. Yet it is an area where globally we are failing to meet humanity's current needs and are in danger of not meeting future needs. It is also a complex area, with many different interests. This book is a tool that we hope will help make the discussion and rule-making about IP, biodiversity and food security more informed and lead to fairer outcomes for all.

Document(s) 14 of 20