Rebecca Tushnet

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).