Atle Sommerfeldt, Secretary General of Norwegian Church Aid, in What’s the Matter With Trade, 2005

Global intellectual property regimes are a recent phenomenon. Conceived as part of a wider set of economic ‘neo liberal’ structural reforms, their intention is to bring all commercial development under the auspices of a single system governing the patenting of material and intellectual resources for exploitation.

Intellectual property rights (IPR) are granted on inventions, trademarks and industrial designs, while copyright is granted to literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Patent regimes have been operative for several centuries in the developed West, and traditionally have remained national in origin and scope. What is unprecedented about the new generation of intellectual property regimes is the attempt to enforce them across the world, regardless of each individual country’s economic, research base or commercial capacity to manage or exploit them⁽¹⁾.

The major vehicle for developing a global intellectual property rights system has been the World Trade Organisation (WTO), who, in the 1986-94 Uruguay Round, introduced intellectual property rules into the multilateral trading system for the first time. The Trade-Related Intellectual Property Rights (TRIPS) regime departed from older IPR systems in two important respects. First, it put enormous pressure on countries and regions to sign up to a global IPR regime by linking it to their participation in world trade. Second, once nations sign up to TRIPS, they lose much internal control of their IPR regimes, leaving themselves open to the incursion of outside interests able to exploit TRIPS far more effectively than domestic interests.

This has put many developing countries in a very difficult position when attempting to negotiate in the WTO—whether on trade or around TRIPS. Despite repeated refusal on the part of developed nations to concede unfair advantages in the form of agricultural subsidies, developing nations simultaneously have to defend their economies against the introduction of a single IPR regime designed to suit multinational rather than domestic businesses.

A good example was the struggle involved in keeping the right to produce generic versions of life saving drugs out of the TRIPS regime. At the meeting of the WTO in Doha, Qatar in 2001, developing countries were able to hold on to the principle that countries can develop or import generic drugs at a fraction of the price charged by pharmaceutical companies, despite vociferous and sustained opposition by the US administration⁽²⁾.

The Doha Declaration is important because it reveals the key issues at the heart of extending IPR regimes to the poorest countries of the world. At its simplest, the Doha Declaration stated that poor people can be made even poorer by the imposition of IPR regimes designed to protect far more powerful interests. It stated that social welfare needs such as health and the public good have higher priority than IPR regimes, and more importantly that IPR regimes should be evaluated and imposed according to their impact on the welfare of the poor. As a result of the Doha Declaration, and other initiatives, a program of treatment for HIV and AIDS has been rolled out in Africa and elsewhere, a program that would have been impossible if the US had its way in 2001⁽³⁾.

But the small victory at Doha reveals precisely why IPR and associated globalized economic governance regimes are not the best guarantors of the interests of the poor. The issue of the cost of drugs is only one aspect of the problem in extending treatment to the millions of HIV/AIDS sufferers who need it.

In Africa, for example, the issue is also one of weak infrastructure. An inability to retain skilled and resourced health personnel, poor material and transport infrastructure, a population unable to afford health care, and lack of transparency over distribution of resources means placing and effectively using resources in many economies is actually very difficult. And this in turn reflects the nature of the economic regimes governing Africa for over a century. Rather than being a force for the development of domestic economies, with the associated health and education infrastructures that domestic economies require and build, African economies have essentially been built on plunder, with massive inequities in the distribution of resources, and the creation of populations in extreme poverty as a result.

For the poor, a key resource alongside health is land. Seventy percent of Africans are dependent on small scale farming. Land is the key for the vast majority of Africans who are impoverished because it is through basic rights over land that people access resources, feed themselves and their families, and make a living. Yet, like the right to health, any notion of a ‘property’ right—in other words a right to land—is still a distant dream for the vast majority in Africa. Why? This too is a legacy of a globalizing economic regime designed to suit the interests of outsiders. ‘Natives’ across Africa were denied private property rights by colonial regimes on the basis of their ‘ethnicity’. Hence private property rights were available only to those who became part of the colonial system of governance. This, as many commentators have argued, formed one of the pillars of apartheid and its variables in Africa: literally one rule for white men, another for the natives.

The impact of the denial of indigenous property rights is still very much in evidence today. Two examples of current land claims crises in Africa illustrate this point. The first is the disintegrating state of agriculture in Zimbabwe. English settlers took enormous tracts of the country’s richest agricultural land when the country was colonized. Most blacks were forcibly removed into far poorer ‘communal areas’ and denied any property rights to this land. After Zimbabwe’s independence, the British government refused to shift its position that land transfer should occur through anything other than commercial transactions. More recently, they failed to engage in a constructive dialogue as to how land reform in Zimbabwe (and more generally in Africa) could be supported and implemented because they feared the intentions of Robert Mugabe’s regime⁽⁴⁾.

As a result, the ZANU PF ruling party exploited the deep need for land reform to bolster its own power. The land reform program initiated by Mugabe in the late 1990s was chaotic. Most of the prime sites reverted to the black elite, many new farmers were still not given property rights to their land, or provided help with production. Given the underlying need to nurture and support land rights and production if the food security needs of the vulnerable were to be met, ZANU PF instead echoed and perpetuated the racist and supremacist basis of land ownership and use associated with colonial regimes. With the recent mass demolition of informal sector property across many parts of Zimbabwe, the poor have suffered further dispossession and large numbers are now totally dependent on food aid to survive⁽⁵⁾.

The San have also recently signed one of the first agreements ever to give holders of traditional knowledge a share of royalties from the drug and product sales of the appetite suppressing Hoodia plant, which is native to southern Africa. According to Roger Chennells, the lawyer representing the San, the Bushmen abandoned the principle of ‘no patents on life’ because they said it was “too expensive” and emphasized that the San regarded their traditional knowledge of Hoodia as collective intellectual property rights that should not be owned by any individual or entity⁽⁷⁾.

The struggle faced by the San is essentially the same as the struggle faced by the poor in Zimbabwe. In Zimbabwe, the British and Zimbabwean governments have repeatedly betrayed the descendants of those born and raised on communal land in terms of the distribution of the more productive areas of the country. The San too face a struggle with their own government to keep the land that they consider theirs. By their own admission, they entered into an IP agreement on Hoodia because they needed the money, but would have preferred to have maintained their collective traditions relating to land use. For both groups, not only are their basic property rights denied or threatened, so too is their capacity and right to articulate what land they might want, what they want to use it for, and ways in which they want to conceive of and develop appropriate ideas of property and individual and collective rights over it.

With such systemic regimes of dispossession at the heart of Africa’s economic and governance problems, imposing an IPR regime on the resources people access fails to address the real issue. The real issue for most Africans is that they have very little property to protect, and they have grown used to living with the pervasive assumption that what little they may have can be taken from them at any time. Signing up rights over individual resources in terms of the TRIPS regime will do nothing to solve this problem, unless and until the wider questions of what property means to the poor, what property they have and are entitled to are addressed. If the IPR regimes that are to be imposed across the world are to be pro-poor, the first question they need to answer is: what of the poor’s property needs recognition and protection?

This is largely a question of self-determination. This in turn makes it a public issue, putting such questions of ownership beyond the commercial dictum: ‘willing buyer, willing seller’. The Doha Declaration affirms that there are public goods, that people’s right to health is one of them, and that a right to a public good – because it is available to all – overrides any individual, private claim to that resource. In Africa, the possibility for acknowledging and securing public goods has been destroyed by repeated cycles of exploitation. Yet, unless resources like land, health and education are conceived of and treated as publicly as well as privately owned, with the assumption of everyone’s entitlement, private property rights will remain limited, property distribution will remain iniquitous, and resource transfer will remain minimal. The capacity to claim goods as public is thus perhaps the key intellectual property right that needs to be secured if the world’s poor are to have any hope of owning the fruits of their environments and labor – as well as their intellects.