A Marxist Analysis of the World Trade Organisation s Agreement on Trade-Related Aspects of Intellectual Property Rights

Policy Futures in Education, Volume 4, Number 4, 2006 A Marxist Analysis of the World Trade Organisation’s Agreement on Trade-Related Aspects of Inte...
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Policy Futures in Education, Volume 4, Number 4, 2006

A Marxist Analysis of the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights RUTH RIKOWSKI London South Bank University, United Kingdom

ABSTRACT This article examines the World Trade Organisation’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). There are many WTO Agreements, but TRIPS is likely to have significant implications for areas such as information, education and libraries. The article provides an overview of TRIPS in general. Various intellectual property rights (IPRs) are covered in TRIPS, including copyright, patents, trademarks, geographical indications, industrial designs, integrated circuit designs and ‘trade secrets’. It then considers the implications of TRIPS for information provision, focusing in particular on copyright and patents. Finally, it examines the TRIPS within an Open Marxist theoretical perspective. The author argues that TRIPS is fundamentally about transforming IPRs into internationally tradable commodities. Marx began his analysis of capitalism in Capital volume one with ‘the commodity’. We need to get back to basic Marxism and to make it applicable to the global capitalist world that we find ourselves in today. Thus, capitalism is essentially about the commodification of all that surrounds us and the TRIPS assists with this process. Value that is extracted from labour, and largely from intellectual labour, becomes embedded in internationally tradable commodities (such as patents) that are created and socially validated by TRIPS. Profit is derived from this value and through this process global capitalism is extended and intensified. Introduction There are various agreements that are being developed at the World Trade Organisation (WTO) but two of these are likely to have significant implications for information, education and libraries. These are the General Agreement on Trade in Services (GATS) and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. This article will focus on TRIPS. First of all, there is an overview of the TRIPS Agreement in this article, and a consideration of the different intellectual property rights (IPRs) that are contained within it. This is followed by a focus on TRIPS, copyright information and education issues, examining moral and economic rights in copyright and the balancing act in copyright. There then follows an examination of TRIPS, patents, traditional knowledge and education issues. The implications of TRIPS for information, education and libraries will be considered within three main areas: copyright, patents and the WTO. The article will then place TRIPS within an Open Marxist theoretical perspective, arguing that TRIPS is about transforming information, knowledge and ideas into IPRs which can then be traded on the global market, in the form of international tradable commodities. Fundamentally, TRIPS is concerned with the trading of these IPRs, and is not concerned with moral, humane and public service ethos issues.

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A Marxist Analysis of TRIPS TRIPS and Large Corporations The power of large corporations and rich countries in the developed world and the lack of democracy at the WTO are illustrated clearly through TRIPS. The developed countries typically benefit at the expense of the developing countries. The Pharmaceutical Research and Manufacturers of America (PhRMA), is probably the world’s most powerful industrial lobby and in many ways it shapes the TRIPS agenda. As Watkins says: Dictated by the US pharmaceutical industry, and driven through by threats of US trade sanctions, the agreement was opposed by virtually every developing country in the Uruguay Round. (Watkins, 2003, p. 32) Furthermore, ‘TRIPS enshrines the US patent law in the multilateral trade system’ (Watkins, 2003, p. 32). It forces developing countries to adopt the standards of the rich countries in the west. Over 90% of patents for new technologies are held by corporations in rich countries. Overview of TRIPS TRIPS was established at the WTO on 1 January 1995, along with many other WTO agreements. TRIPS materialised from the Uruguay Round, which also created the WTO itself. TRIPS was drawn up by a relatively small number of people. Drahos & Braithwaite (2002, p. 10) interviewed a senior US trade negotiator in 1994, and he said that probably less than 50 people were responsible for TRIPS. TRIPS is concerned with the trading of IPRs, these being the rights that society awards to individuals or organisations for their creative works. IPRs give creators the right to be able to prevent others from unauthorised use of their works for a stated period. According to the WTO the main purpose of TRIPS is to: ... reduce distortions and impediments to international trade ... taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade. (WTO, 1995, p. 1) The general goals of TRIPS are outlined in the Preamble, which reproduces the basic Uruguay Round negotiating objectives established in the TRIPS area by the 1986 Punta del Este Declaration and the Montreal Mid-Term Review of the Round in December 1988. From this the ‘Trade Policy Review Mechanism’ was set up, and became part of the WTO in 1995, when intellectual property was included. During the Uruguay Round of negotiations it was also decided that the Berne Convention for the Protection of Literary and Artistic Works, which was included in the Agreement, provided most of the basic standards needed for copyright protection. There has not been such a binding international agreement on IPRs on this scale before. As the WTO itself says, ‘The TRIPS Agreement ... is to date the most comprehensive multilateral agreement on intellectual property’ (WTO, no date, a, p. 1). Furthermore, Drahos & Braithwaite (2002, p. 10) say that ‘TRIPS is the most important agreement on intellectual property of the 20th century’. Intellectual Property Rights Hefter & Litowitz refer to IPRs saying that: The most noticeable difference between intellectual property and other forms of property ... is that intellectual property is intangible, that is, it cannot be defined or identified by its own physical parameters. It must be expressed in some discernible way to be protectable. (Hefter & Litowitz, n.d.) Jennifer Davis (2003) emphasises that the World Intellectual Property Organisation (WIPO) refers to intellectual property as being the products of the mind, which includes inventions, literary and artistic works and designs. A conceptualisation of the intangible nature of intellectual property is essential, but this intellectual property needs to be expressed in a discernible, distinguished way if it

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Ruth Rikowski is to be protected – i.e. for it to become an IPR. Essentially, IPRs are the rights that society awards to individuals or organisations for their creative works – in whatever shape this may take (writing, art, music etc.) WIPO emphasises that IPRs fall into two main categories – Industrial Property and Artistic and Literary Property. The former includes patents, industrial designs, trademarks and trade secrets, whilst the latter includes copyright, database protection and plants breeders’ rights. However, in the past these categories were treated separately. In the 1880s, industrial property (patents, designs, trade marks, etc.) were treated separately from copyright (intellectual property). Industrial property came under the Paris Convention 1883 (as revised), whilst copyright came under the Berne Convention 1886 (as revised). However, the generic term is now used in both TRIPS and WIPO. Parts I-VII of the TRIPS Agreement (excluding Part II) TRIPS is divided up into seven sections (WTO, 1995). Topics covered are as follows: Part I – General Provisions and Basic Principles Part II – The Different Types of Intellectual Property Rights Part III – Enforcement of Intellectual Property Rights Part IV – Acquisition and Maintenance of Intellectual Property Rights and Related Inter-Partes Procedures Part V – Dispute Prevention and Settlement Part VI – Transitional Arrangements Part VII – Institutional Arrangements; Final Provisions .

Part 1 refers to the role of the legal system of member states – i.e. the part that nation states have in regard to introducing and enforcing legislation in connection with TRIPS and IPR issues in their own respective countries. Whilst members do not have to introduce legislation that is more extensive than the TRIPS (i.e. that extends the basic principles embedded in the TRIPS still further), neither must they introduce legislation that contravenes the basic provisions and principles in the Agreement. Within these confines, members can and, indeed, probably need to, introduce legislation in their own countries, in order to ensure that the provisions within TRIPS are adequately implemented in their own countries. This reinforces the power of the WTO. In Article 3 under ‘National Treatment’ in point 1, it says: Each member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property. So, every member must be treated the same in regard to IPR issues, and members must not favour nationals in their own countries over nationals from other member states. Furthermore, in Article 4, ‘Most-favoured-nation treatment’, it states that: any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members. This means that if a member gives any preferential treatment to another member (no matter what form this might be in), then that privilege must also be given to all other members. This could be in the form of a government subsidy, for example. In Article 8, point 2, it emphasises that ‘appropriate measures’ might be needed to: prevent the abuse of intellectual property rights by rights holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology. Thus, this emphasises the underlying philosophy within TRIPS, which is the trading of IPRs and that ‘appropriate measures’ might be taken if any factors seem to be hindering the achievement of this.

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A Marxist Analysis of TRIPS Part V covers ‘Dispute Prevention and Settlement’. A Dispute Settlement Understanding will be used for the settlement of disputes in the Agreement, and this will be based on the provisions of Article XXII and XXIII of GATT 1994. In Article 63, under ‘Transparency’, in point 1 it states that laws and regulations, etc. that are made effective by a WTO member that is on a subject that is relevant to the Agreement must be published. Or if it is not practically possible for it to be published, then it must be made publicly available in some other way, so that governments and right holders can become familiar with the material. Thus, those laws and agreements made in individual nation states that are members of the WTO and that are connected with TRIPS must be made available to other members – i.e. they must be made transparent. Part VII of the Agreement covers ‘Institutional Arrangements; final provisions’. The Council for TRIPS will: monitor the operation of this Agreement and in particular, Members’ compliance with their obligations hereunder. (Article 65) The Council for TRIPS will review the implementation of the Agreement after the transitional period has expired and at further defined periods after this. In summary, some of the main points covered in Parts I-VII (excluding Part II) are: • IPR legislation in member states must comply with the TRIPS; • members must introduce laws and enforcements in their own countries, to ensure that TRIPS is implemented effectively in each member state; • appropriate measures will be taken to prevent any abuse in regard to IPRs and to prevent any practices which unreasonably restrict trade; • no one member must be given additional favourable treatment over another member in regard to IPRs; • laws and agreements made in individual member states in regard to IPRs must be made publicly available; • there will be a judicial authority to ensure that enforcement of TRIPS is carried out effectively; • the TRIPS Agreement will be monitored and reviewed. Part II of the TRIPS Agreement (excluding copyright and patents) Part II of the Agreement covers the different types of IPRs that are covered in TRIPS and these will be considered further below, apart from copyright and patents, which will be examined separately. Trademarks. TRIPS specifies what types of signs are eligible for protection as trademarks, and what the minimum rights for the owners of the trademarks are. Service marks must be protected in the same way as goods marks. These signs include personal names, letters, numerals, figurative elements and combinations of colours. Where signs do not clearly distinguish the relevant goods or services, members can register signs on the grounds of distinctiveness acquired through use. Once a trademark is registered, the owner of the trademark will have the exclusive right to stop anyone else from using the trademark without the owner’s consent. The initial registration of a trademark lasts for a period of no less than seven years. Registration of a trademark can be renewed indefinitely. Geographical indications. Sometimes, place names identify a product, such as ‘Stilton cheese’ and ‘Scotch whisky’. The place name usually identifies both the geographical origin of the product and its characteristics – i.e. it is a geographical indication, and this is another IPR that is covered under TRIPS. TRIPS seeks to prevent the misuse of place names, such as the use of a place name when the product was made elsewhere. Geographical indications are defined in the following way under Section 3 – ‘Geographical indications’, article 22, of the TRIPS Agreement, paragraph 1: Geographical indications, are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.

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Ruth Rikowski Thus, geographical indications in TRIPS are those indications that identify a good as originating in a particular member state, or in a particular territory within that state, where some distinguishing characteristics of the good are attributable to its geographical origin. There are exceptions to this, such as ‘Cheddar’, which now refers to a particular type of cheese that is not necessarily made in Cheddar. Industrial designs. Industrial designs are covered under Section 4 in the TRIPS Agreement. In Article 25, paragraph 1, of this section, it says that WTO members will provide protection for independently created industrial designs that are new or original. Such protection will not extend to designs that are governed by technical or functional considerations. The WTO, in its document ‘Trading into the future’, refers to industrial designs, saying: Owners of protected designs must be able to prevent the manufacture, sale or importation of articles bearing or embodying a design which is a copy of the protected design. (WTO, Trading into the future, no date, b) Industrial designs have to be protected for at least 10 years under TRIPS. Integrated circuit designs. The protection of integrated circuit designs in TRIPS is based on the Washington Treaty on Intellectual Property in Respect of Integrated Circuits, which falls under WIPO. These IPRs fall under Section 6 of the TRIPS Agreement, which is entitled ‘Layout-designs (topographies) of integrated circuits’. In Article 35 it says that: Members agree to provide protection to the layout-designs (topographies) of integrated circuits. Furthermore, in Article 36 it states that certain acts are unlawful if performed without the authorisation of the right holder. These include importing, selling or distributing in some other manner a protected layout-design for commercial purposes, an integrated circuit that incorporates a protected layout-design. Such protection must be available for at least 10 years. Trade secrets and undisclosed information. Trade secrets and ‘undisclosed information’ that have commercial value: must be protected against breach of confidence and other acts contrary to honest commercial practices. (WTO, Trading into the future, no date, b) This comes under Section 7 – ‘Protection of undisclosed information’ – and it says in Article 39.2 that this protection applies to information that is secret, that has commercial value because it is secret and where steps have been taken to keep it secret. Undisclosed information does not have to be treated as a form of property. However, a person who is lawfully in control of such information must be able to prevent it from being disclosed to, or acquired by, or used by others without his/her consent in a manner that is contrary to honest commercial practices. Does TRIPS belong to the WTO; is it part of trade? Introduction. Some argue that TRIPS does not really belong to the WTO, because whereas the WTO is about trade, TRIPS, in contrast, is about the regulation of trade, and is protectionist. Martin Khor, the Director of the Third World Network is of this opinion. He says that: It is an aberration that TRIPS is located in a trade organisation whose main functions are supposed to be the promotion of trade liberalisation and conditions of market competition, whilst TRIPS is protectionist and curbs competition. (Khor, 2002, p. 10) Furthermore, a non-governmental organisation (NGO) statement, which was signed by a wide variety of NGOs such as Oxfam International and Grassroots Action, says that TRIPS is being used as a ‘protectionist instrument to promote corporate monopolies over technologies, seeds, genes and medicines’ (NGO, 2001, p. 1). By the utilisation of IPRs through TRIPS large corporations protect their markets. This shifts the balance ‘away from the public interest, towards the

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A Marxist Analysis of TRIPS monopolistic privileges of IPR holders’ (NGO, 2001, p. 1). These NGOs also ask for the removal of TRIPS from the WTO. TRIPS – protectionist or part of trade? Many have emphasised that TRIPS provides protection for big business, particularly in areas such as drugs, food and the patenting of life-forms. However, big business itself is necessarily part of trade: big business certainly does not operate outside of a trading environment, so to this extent, TRIPS must be part of trade, I would suggest. TRIPS is clearly protectionist in some ways, but its overarching aim is to encourage the trading of IPRs. It is only protectionist whilst such protectionism encourages the trading of IPRs in the long term. TRIPS, Copyright, Information, Education and Libraries Introduction There are two types of IPRs in the TRIPS Agreement that are of particular significance for information, education and libraries – copyright and patents. This section focuses on copyright and the following section will focus on patents. In the document Tips for TRIPS, which was written by the Committee on Copyright and Other Legal Matters (CLM), one of the International Federation of Library Associations and Institutions (IFLA) committees, it says, ‘Of course, the most important type of intellectual property as far as libraries are concerned is copyright’ (CLM, 2002, p. 1). Copyright is included in Part II of TRIPS. Copyright can be defined as the protection of the creators of works, but unlike patents, it protects the expression of ideas, rather than the ideas themselves. Thus, it is not the idea or the invention in itself that is protected but the form in which this idea is expressed. If it is not expressed in an external, tangible form, then it cannot be protected. Also, as Torremans says, ‘Everything starts with the author who has to create works. If there are no works there is nothing to exploit for the entrepreneur’ (Torremans, 2001, p. 220). Thus, everything starts with the creator, but it must be encapsulated in a tangible format. Copyright protects the creators of, for example, literary, artistic and scientific works. It has also now been extended to protect computer software and databases. Usually, copyright owners have the ability to prevent the unauthorised reproduction, distribution (including rental), sale and adaptation of an original work. The length of protection has increased over time, and today it is usually the life of the author plus 50 years, or 50 years or more for works that belong to corporate bodies or organisations. Copyright in TRIPS ‘Copyright and Related Rights’ is in Section 1, Part II of the TRIPS. In Article 9 in this section it says in regard to copyright that: Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. During the Uruguay Round negotiations, it was recognised that the Berne Convention already largely provided adequate basic standards for copyright protection and so most of the Berne Convention is incorporated in TRIPS (apart from moral rights – see below). Other areas that fall within the copyright section of the TRIPS Agreement include computer programs and compilations of data and other material, either in machine readable form or other form: which by reasons of the selection or arrangement of their contents constitute intellectual creations. (Article 10) It also includes rental rights, where authors can authorise or prohibit the commercial rental to the public of their copyright works (Article 11). The ‘Term of protection’ is laid out in Article 12. For authors, protection is for the life of the author plus 50 years. Whenever the term of protection of a work, other than a photographic work

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Ruth Rikowski or a work of applied art, is calculated on a basis that is not the life of the natural person, then that term will not be less than 50 years. Meanwhile, Article 14 is about the ‘Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations’. This article enables performers and broadcasting organisations to prevent acts from being performed, without their authorisation, for a certain period of time. The term of protection to performers and phonograms lasts for at least 50 years. Moral Rights and the Copyright Section of TRIPS There are two rights in copyright – moral and economic rights. Ideally, both of these should be included in all copyright legislation, agreements, directives and conventions, although in reality moral rights are often excluded. This, I would argue, is because of the drive embedded within capitalism itself, where entrepreneurial drives and trade are bound to take precedence over moral and humane considerations. Moral rights have been excluded from the copyright section of TRIPS. Most of the Berne Convention is included in TRIPS apart from moral rights. The WTO says that: Members do not have rights or obligations under the TRIPS Agreement in respect of the rights conferred under Article 6 bis of that Convention, i.e. the moral rights (the right to claim authorship and to object to any derogatory action in relation to a work, which would be prejudicial to the author’s honour of reputation), or of the rights derived therefrom. (WTO, und.a, p. 4) Thus, a very important part of the Berne Convention that was established over 100 years ago has been excluded from the TRIPS Agreement. Even where moral rights are included in copyright legislation, it can sometimes be difficult to enforce, there are often waiver facilities, and it can be difficult for creators to obtain their appropriate moral rights. But if it is not there at all, then creators really are at a serious disadvantage. Instead, the emphasis in TRIPS is on economic rights and trade. The Balance in Copyright and TRIPS One very important principle in regard to copyright, particularly as far as the library and information profession is concerned, is the aim to achieve a balance in copyright – i.e. a balance between the rights for creators of works and copyright holders and the free flow of information. This notion of balance goes back some 300 years. However, TRIPS is not concerned about endeavouring to maintain a balance in copyright, and the language of balance plays no real part in TRIPS – instead, its overriding aim and purpose is to trade IPRs. TRIPS, Patents, Traditional Knowledge and Education Issues in the Developing World Patents in TRIPS Patent law has been developed in order to provide an incentive for inventors, so that their inventions can then be made accessible to the public. Patent invention must be available for different inventions for at least 20 years in TRIPS and this includes patents for both products and processes. Patents are in Part II, Section 5, and in Article 27 it says that: patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Plant varieties, also, must be protected by patents or by a special system, such as the breeder’s rights. Included in the Agreement are the minimum rights that a patent owner has. The Agreement also seeks to ensure that the patent owner does not abuse these rights, which he/she could do by, for example, not supplying the product on the market. In order to overcome this, governments can issue ‘compulsory licences’ that allow competitors to produce the product or use the process under licence. Thus, this also reflects the enthusiasm for trade that is embedded in the Agreement.

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A Marxist Analysis of TRIPS There are also various exclusions. If governments decide that the commercial exploitation of a particular invention could have undesirable consequences for public order and morality, then that government can refuse to issue a patent. Other types of patents can also be excluded, such as diagnostic and surgical methods and plants and animals. TRIPS and Traditional Knowledge TRIPS does not refer to traditional knowledge (TK) directly, but clearly TRIPS is likely to impact on TK. Drahos & Braithwaite refer to patent law and TRIPS, saying that: Patent law ... has become one of the main mechanisms by which public knowledge assets have been privatized. TRIPS itself is an outcome of this process of privatization of the intellectual commons. (Drahos & Braithwaite, 2002, p. 150) They draw attention to the fact that the ‘intellectual commons’, which includes TK, is being patented and privatised, and then traded through TRIPS. It should be noted that most people and organisations, such as NGOs that look at, and are concerned about, patents in TRIPS, examine areas other than information, education and libraries. They focus, in particular, on areas such as drugs, genes and the patenting of life-forms. Thus, I am exploring a very new, undeveloped area here. Given that TRIPS is about transforming IPRs into international tradable commodities, TK for the benefit of the local, indigenous population is under threat. Definition of Traditional Knowledge TK is usually associated with knowledge that has been gathered over a long period amongst local, indigenous communities in the developing world, although it does not necessarily only apply to these communities. Weeraworawit (2003, p. 159) provides a fairly general definition, whilst also emphasising that there is no internationally accepted definition, saying that: ‘TK is knowledge that has been developed based on the traditions of a certain community or nation’. Often this TK has been accumulated over hundreds of years. It has existed for centuries in India, for example, and has been the mainstay of India’s existence in many ways, especially in regard to food and health. TK and IPR Issues in the Developing World TK cannot be encapsulated in copyright, which would provide copyright protection, unless it is in a tangible form. This means that local indigenous communities in the developing world are very vulnerable and can be exploited. Many have been gathering their knowledge for hundreds of years. However, most of these people would not have the skills and capabilities to be able to write down what they know, and to transform it into a tangible form. This makes it easy for large companies to come along and appropriate this knowledge, patent it, turn it into an IPR and make money out of it, without giving due recompense to the indigenous population. As Utkarsh (2003, p. 190) says, with globalisation: ‘knowledge and other public goods are rapidly being appropriated, transformed and marketed by commercial concerns, without any benefit being shared with the original producers’. Western law also often treats TK as part of the public domain, and thus freely available to everyone. This is another problem. This is partly because of the culture embedded within the indigenous community itself, with its emphasis on sharing and the community spirit. Many people in the developing world see TK as being part of Nature itself, and there are also religious connotations. Thus, many would be against any notion of people owning, or seeming to own, any of this knowledge, or turning it into any form of IPR. Meanwhile, Aguilar argues that patents and other IPRs are not really suitable for protecting TK for both practical and cultural reasons. Instead, there is a need to look for viable alternatives, otherwise those in the indigenous communities will become the ‘victims of knowledge piracy’ (Aguilar, 2003, p. 181). He argues that a sui generis system tied to the framework that is provided by the Convention on Biological Diversity (CBD) and in Article 27.3(b) of TRIPS is urgently needed.

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Ruth Rikowski TRIPS and the Developing World What are the implications of TRIPS for the developing world in general? Many NGOs argue that TRIPS is largely disadvantageous for the developing world. This is for a number of reasons. Firstly, the strong IPRs systems and practices that are being established in WTO member countries through TRIPS will give monopoly rights to many privately-run research organisations and to various powerful private corporations. Secondly, TRIPS makes it mandatory for WTO member countries to patent some categories of life forms and other living processes. This has raised various ethical, religious and environmental questions. The third reason is the concern that TRIPS favours large private companies and modern technology, and the fourth is the misappropriation of much TK and the lack of concern about the rights of local communities, indigenous populations and farmers, and the important role that they have played in developing this TK. Patents and TRIPS in the Developing World The TRIPS patent system was established in the joint statement presented to the GATT Secretariat, in June 1988 by the Intellectual Property Committee (IPC) of the USA and industry associations of Japan and Europe. The IPC is a coalition of 13 major US corporations which aims to ensure that TRIPS works to its advantage. The members of IPC include corporations like Hewlett Packard, General Motors, IBM, Rockwell and Warner. Patents laws have existed in various developing countries for over 100 years. Embedded in these patent laws was some desire to help the indigenous populations. But this is now threatened by TRIPS because of the lack of a democratic process. Shiva (2001), for example, refers to various patent systems that have evolved through multinational corporations and have been pushed by governments in the developed world through TRIPS, and how this can damage the democratic process of nation states. Role of the Educator, Librarian and Information Professional What role can educators, librarians and information professionals play in regard to all this? They could consider other ways in which developing countries could develop their own intellectual property systems. Literacy and reading classes and school classes explaining copyright and intellectual property rights in simple terms could be provided. Outreach work could also be undertaken. They could try to engage and understand the local culture and the hopes and fears that people have. Furthermore, there could be more information provision about TRIPS itself. Such information could be provided in an easily digestible format, such as in the form of leaflets and posters. There could also be information about the danger that large corporations can pose to the indigenous population. Finally, information professionals and educators could endeavour to obtain more resources for schools, library and information centres. Concluding Comments Fundamentally, it will be impossible to implement TRIPS in a way that will significantly benefit the developing world, because of the inherent inequalities and contradictions that are built into the very fabric of global capitalism itself. Furthermore, the drives of capital are infinite; it will never be satisfied. So, there will never come a point where it will be decided that the inequalities need to be lessened in any fundamental way. Instead, TRIPS, as a tool which aids the furtherance of global capitalism, is likely to increase the inequalities. Furthermore, inequalities and poverty will only ever be lessened (and largely on a temporary basis) when pressure is placed on those in positions of power. In regard to TRIPS this rests on putting pressure on the WTO through organisations such as the Third World Network and various NGOs in order to soften some of the most worrying of the implications of TRIPS for the poor and those in the developing world. However, capitalism is a battlefield upon which various compromises are and can only ever be made, but it can never ultimately be for the benefit of the labourer and the poor. To change the

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A Marxist Analysis of TRIPS situation on a permanent basis, we need to terminate capitalism and replace it with socialism and eventually with communism in my opinion. Implications of the TRIPS Agreement for Information, Education and Libraries Unravelling the likely implications of TRIPS for information, education and libraries is complex. Three areas will be considered here – copyright, patents and the WTO. Copyright in TRIPS and its Implications for Information, Education and Libraries The irrelevance in regard to the balance in copyright in TRIPS. TRIPS is not concerned about endeavouring to obtain the main balance in copyright – i.e. the balance between the free flow of information and the giving of rights to creators of works and copyright holders. The language of balance itself does not form any real part of the Agreement. Notions such as the free access to information, freedom of information and intellectual freedom are not referred to in any meaningful way. Neither is it concerned with trying to maintain a balance between the rights of creators of works and copyright holders, because moral rights have been excluded from TRIPS. Instead, TRIPS is simply concerned with the successful trading of IPRs, as this will enhance capitalism. If obtaining some sort of balance aids this process, then all is well. But if not, then notions of balance can be, indeed probably should be, and are abandoned (from the point of view of those pushing forward the TRIPS and the global capitalist agenda). Implications of copyright issues in TRIPS for the developing world. It is likely that copyright issues in TRIPS will be particularly disadvantageous for those in the developing world. Furthermore, these people tend to have less knowledge and understanding about copyright legislation and their ensuing rights thereof. The problem is exacerbated by the level of illiteracy that exists in the developing world, and by the fact that many would not want to convert their TK into a tangible format that can be copyright protected anyway, as this would be seen to go against their religious beliefs. Furthermore, where knowledge is recorded and copyright protected it does not necessarily mean that this will be for the good of the local community. TRIPS is concerned with trading issues in regard to copyright and the entrepreneurial side and not with moral and humane issues and certainly not, on the whole, with the needs of the indigenous populations in the developing world. Complexity of copyright legislation and TRIPS overriding other copyright legislation. Copyright legislation, agreements and directives are becoming more and more complex and many people in the developed world, let alone those in the developing world, are often not fully aware of their facts and their rights. Furthermore, educators, librarians and information professionals themselves can experience difficulties in understanding and implementing copyright legislation. Large corporations are likely to be better placed to keep abreast of these many changes, as they are likely to have more resources available than many individuals to help them to be aware of and to understand the changes. For this reason alone, it is more likely that they will be able to reap greater benefits from TRIPS than individual creators of works. They can consider how TRIPS can be utilised to their benefit more effectively. This is as well as the fact that TRIPS favours big business anyway and some large corporations have even assisted with the formulation of TRIPS. Furthermore, WTO agreements can override legislation in nation states. Copyright legislation in individual WTO member states could become superfluous, or at least have to be seriously revised, if it was found to be incompatible with TRIPS. This would make it even more difficult for educators, information professionals and librarians to have any significant impact on copyright legislation.

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Ruth Rikowski Patents in TRIPS and its Implications for Educators and Information Professionals When TK is taken by large corporations and transformed into IPRs, as happens so frequently today in the developing world, this has significant implications for information professionals and educators. As Denise Nicholson says in regard to indigenous populations: Without access to information, they are unaware that their intellectual property is often misappropriated and used for commercial exploitation abroad. As a result, the rural community or individuals do not receive any compensation. (Nicholson, 2002, p. 261) The problem with this though, is that it clearly benefits large corporations, but offers few, if any benefits, to the indigenous population, as they will then have to pay for the information in the patent, such as paying for drugs; information that was previously available for free. So, in a sense, information and knowledge that should be part of the community and made available through libraries and information resource centres is being denied. Part of the problem here is that the notion of library and information service and decent schools in the developing world is quite weak in comparison with the developed world. It is something of a luxury for those who are poor and starving. However, the patenting of this local TK exacerbates the problem. Instead, the power and influence will reside even more with large corporations; they will be deciding what, if any, TK to make available easily, how much of it to make available and where to make it available. This is likely to increase rather than lessen poverty in the developing world. Implications of the WTO in General for Educators and Information Professionals In regard to the WTO in general, large corporations and rich countries wield a very considerable amount of power and influence at the WTO. The United Kingdom House of Lords Select Committee on Economic Affairs in its report on Globalisation, spoke about the influence that rich countries wield at the WTO, saying: We recognise that member countries of the WTO vary in size and economic power. They vary, therefore, in their capacity to influence decisions in the WTO and, more fundamentally, to maintain a presence at the WTO. It would be naive to believe that an organisation like the WTO would not be dominated by a small number of rich countries. (House of Lords, 2002, p. 10) There are many implications here for educators and information professionals. If more knowledge and information is encapsulated in IPRs that are owned by large corporations in rich countries, for example, whether this be in the developed world or in the developing world, then it is less likely that this information will be made freely available. Instead, IPRs will be traded, as in the spirit of TRIPS. A further concern is the fact that many important decisions as a result of these different agreements will reside within the WTO itself, rather than within individual nation states. This involves the eroding of power of nation states. Thus, it is likely that more IPR legislation in WTO member states will have to fall in line with TRIPS and that the power and influence of educators, information professionals and librarians over IPR legislation and directives is likely to be even more minimal. An Open Marxist Theoretical Perspective on TRIPS In my book, Globalisation, Information and Libraries (Rikowski, 2005), I place TRIPS within an Open Marxist theoretical perspective. In essence, my argument is that IPRs, through TRIPS, are being transformed into international tradable commodities. Value that is created from labour (and particularly from intellectual labour in this regard) becomes embedded in the commodity. Furthermore, value can only ever be created from labour. These commodities are then sold in the marketplace and profits are made and this ensures the continued success of global capitalism, whilst labour is exploited, alienated and objectified. Following on from Marx, we need to begin our analysis of capitalism with the commodity. The logic of capitalism is the commodification of all that surrounds us. Now, we are seeing this process

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A Marxist Analysis of TRIPS starting to take effect in areas that were unheard of before – this includes schools, universities and libraries. These are areas that were previously thought to be something beyond commercialisation and trading. But through the WTO we are now witnessing a dramatic change. The logic of this at a future date will be that the public will probably have to pay for services, the same way that they pay for other goods in shops, and services provided by other private companies, such as a taxi service. So, the aim in TRIPS is to transform knowledge, information and ideas into IPRs that can then be traded in the marketplace. Fundamentally, the TRIPS assists with the process of commodifying more and more areas of social life. But what exactly is this value, which becomes embedded in the commodity? I consider this in depth in my dissertation on value creation through knowledge (Rikowski, 2003a), and also provide an overview of it in Globalisation, Information and Libraries (Rikowski, 2005), and further explore it in the forthcoming book that I am editing, Knowledge Management: social, cultural and theoretical perspectives (Rikowski, 2007). Capitalism goes through different stages, such as the Agricultural Revolution and the Industrial Revolution, and now we are moving into the knowledge revolution (see Rikowski, 2000a, b, 2003b). Throughout all these periods, capitalism is sustained by value, and this value can only ever be created by labour. As Marx said: ‘human labour creates value, but is not itself value. It becomes value only in its congealed state, when embodied in the form of some object’ (1867, p. 57). In the Industrial Revolution, value was largely extracted from manual labour, but in the knowledge revolution value is being increasingly extracted from intellectual labour. TRIPS assists with this extraction of value, and with the embedding of it in the commodity. Conclusion Thus, in essence global capitalism is being perpetuated and furthered through the WTO. This is because trade agreements that are being developed at the WTO, such as the GATS and TRIPS, are helping to ensure that more and more areas of social life are being commodified. Capitalism is sustained by value, and not by any set of moral principles, and this includes any possible moral issues in regard to intellectual property rights. We need to try to grasp the complexities of the world that we find ourselves in, in global capitalism today, so that we can then try to find a way to break free from it all, in order to create a better, a kinder and a fairer world. If one took a different position, and argued that global capitalism was a very good system, and that we just need to work through the various issues and dilemmas, one would quickly come up against an insurmountable number of problems (as indeed people do) in regard to issues such as IPRs, moral and humane issues, the public service ethos and the balance in copyright. A Marxist analysis is complex, but it seeks to explain and solve many of these real problems and contradictions, whilst also enabling us to face up to these contradictions. We need a theoretical analysis that helps us to understand and explain the system that we find ourselves in – global capitalism, with all its injustice, inequality, cruelty, suffering and death – and an Open Marxist theoretical analysis provides us with this, in my view. Once we have this understanding, we can then endeavour to create a better, kinder and a fairer social, economic and political system – one that is based on human wants and needs and one that will enable humans to find selfexpression and fulfilment, rather than a system that is based on the exploitation, alienation and objectification of labour, value-creation and the never-ending drive to increase profit margins. References Aguilar, Grethel (2003) Access to Genetic Resources and Protection of Traditional Knowledge in Indigenous Territories, in Christophe Bellman, Graham Dutfield & Ricardo Melēndez-Ortiz (Eds) Trading in Knowledge: development perspectives on TRIPS, trade and sustainability, pp. 175-183. London: Earthscan. Committee on Copyright and Other Legal Matters (CLM), IFLA (2002) Tips for TRIPS: a guide for libraries and librarians to the Agreement on Trade-Related Aspects of Intellectual Property Rights. http://www.ifla.org/III/clm/p1/tt-e.htm (accessed 21 July 2004). Davis, Jennifer (2003) Intellectual Property Law. Butterworths Core Text Series, 2nd edn. London: LexisNexis, Reed Elsevier.

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Ruth Rikowski Drahos, Peter & Braithwaite, John (2002) Information Feudalism: who owns the knowledge economy? London: Earthscan. Hefter, Laurence R. & Litowitz, Robert D. (n.d.) What is Intellectual Property? http://usinfo.state.gov/products/pubs/intelprp/ (accessed 20 July 2004) House of Lords, Select Committee on Economic Affairs (2002), Globalisation, Session 2002-03, 1st Report. London: The Stationery Office. Khor, Martin (2002) Rethinking IPRS and the TRIPS Agreement. Paper distributed at Commission on Intellectual Property Rights Conference, ‘How Intellectual Property Rights Could Work Better for Developing Countries and Poor People’, London, 21-22 February 2002 (Paper originally presented at an international seminar on ‘Intellectual Property and Development: what future for the WTO TRIPS Agreement?’, in Brussels, organised by Oxfam and other NGOs.) Marx, Karl ([1867] 1954 – reproduced text of English edition of 1887) Capital: a critique of political economy, vol 1. London: Lawrence & Wishart. Nicholson, Denise (2002) The ‘Information-Starved’ – is there any hope of reaching the ‘Information Super Highway?’, IFLA Journal, Official Journal of the International Federation of Library Associations and Institutions, 28(5/6), pp. 259-265. Non-Governmental Organizations (NGOs) (2001) Re-thinking TRIPS in the WTO: NGOs demand review and reform of TRIPS at Doha Ministerial Conference. Paper distributed at Commission on Intellectual Property Rights Conference, ‘How Intellectual Property Rights Could Work Better for Developing Countries and Poor People’, London, 21-22 February 2002. Rikowski, Ruth (2000a) The Knowledge Economy is Here – but where are the information professionals? (Part 1), Business Information Review, 17(3), pp. 157-167. http://dx.doi.org/10.1177/0266382004237674 Rikowski, Ruth (2000b) The Knowledge Economy is Here – but where are the information professionals? (Part 2), Business Information Review, 17(5), pp. 227-233. http://dx.doi.org/10.1177/0266382004237791 Rikowski, Ruth (2003a) Value Theory and Value Creation through Knowledge in the Knowledge Revolution. For part of MA by Research, University of Greenwich. Rikowski, Ruth (2003b) Value – the life blood of capitalism: knowledge is the current key, Policy Futures in Education, 1(1), pp. 163-182. http://dx.doi.org/10.2304/pfie.2003.1.1.5 Rikowski, Ruth (2003c) Tripping over TRIPS?: an assessment of the World Trade Organization agreement on Trade Related Aspects of Intellectual Property Rights, focusing in particular on trade, moral and information issues, Business Information Review, 20(3), pp. 149-157. http://dx.doi.org/10.1177/02663821030203005 Rikowski, Ruth (2005) Globalisation, Information and Libraries: the implications of the World Trade Organisation’s GATS and TRIPS Agreements. Oxford: Chandos Publishing. Rikowski, Ruth (2007, forthcoming) Knowledge Management: social, cultural and theoretical perspectives. Oxford: Chandos Publishing. Shiva, Vandana (2001) Protect or Plunder? Understanding Intellectual Property Rights. London and New York; Zed Books. Torremans, Paul (2001) Holyoak and Torremans Intellectual Property Law (3rd edn). London: Butterworths. Utkarsh, Ghate (2003) Documentation of Traditional Knowledge: people’s biodiversity registers, in Christophe Bellman, Graham Dutfield & Ricardo Melēndez-Ortiz (Eds) Trading in Knowledge: development perspectives on TRIPS, trade and sustainability, pp. 190-195. London: Earthscan. Watkins, Kevin (2003) Coutdown to Cancun, Prospect, August, pp. 28-33. Weeraworawit, Weerawit (2003) International Legal Protection for Genetic Resources, Traditional Knowledge and Folklore Challenges for the Intellectual Property System, in Christophe Bellman, Graham Dutfield & Ricardo Melēndez-Ortiz (Eds) Trading in Knowledge: development perspectives on TRIPS, trade and sustainability, pp. 157-165. London: Earthscan. World Trade Organisation (WTO) (1995) TRIPS – Text of the Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex IC of WTO. http://www.wto.org/english/tratop_e/trips-e/t_agm0_e.htm (accessed 21 July 2004). World Trade Organisation (WTO) (no date, a) Overview: the TRIPS Agreement: a more detailed overview of the TRIPS Agreement. http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm (accessed 20 July 2004). World Trade Organisation (WTO) (no date, b) Trading into the Future: the introduction to the WTO. The Agreements: intellectual property, protection and enforcement. http://www.enyox.com/dev/unido-tcb/upload/files/CMSEditor/WTO_Trading_into_the_future.pdf (2nd edn, 2001 – accessed 21 July 2004).

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A Marxist Analysis of TRIPS

RUTH RIKOWSI is a visiting lecturer, London South Bank University and the University of Greenwich and the Commissioning Editor for the Chandos Series for Information Professionals. She is the author of Globalisation, Information and Libraries: the implications of the World Trade Organisation’s GATS and TRIPS Agreements (Chandos Publishing, 2005) and editor of Knowledge Management: social, cultural and theoretical perspectives (Chandos Publishing, 2007). Correspondence: Ruth Rikowski, London South Bank University, 103 Borough Road, London SE1 0AA, United Kingdom ([email protected]). The Rikowskis now have their own website, The Flow of Ideas (www.flowideas.co.uk).

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