Kembrew McLeod is an independent documentary filmmaker and a media studies scholar at the University of Iowa whose work focuses on both popular music and the cultural impact of intellectual property law. This Gene is Your Gene is the first chapter of Kembrew’s book ‘Freedom of Expression®: Resistance and Repression in the Age of Intellectual Property’. An abridged version has been published here acknowledging its Creative Commons License. You can buy a print of the book or read it online.
fencing off the folk and genetic commons
by Kembrew McLeod*
“This gene is your gene,” sang Francis Collins, playfully reworking an old Woody Guthrie song, with electric guitar in hand. “This gene is my gene,” he continued, backed up by the lumbering roar of a middle-aged rock band. This was no ordinary club gig; he was singing at a post–press conference party for scientists. Collins was the man who headed up the Human Genome Project (HGP), funded by the National Institutes of Health, and he was trying to make an ethical and political point. Since the mid-1990s, Collins’s HGP had raced against a private effort to map the human genome in order to make our genetic information freely accessible, not privately owned and patented by a handful of corporations. Any scientist could examine HGP’s genome map for free—unlike the Celera Genomics’ privately owned draft, which was published with strings attached. Over the din, Collins chided his competitors in song by genetically modifying Guthrie’s lyrics:
This draft is your draft, this draft is my draft,
And it’s a free draft, no charge to see draft.
It’s our instruction book, so come on, have a look,
This draft was made for you and me.
Dr. Francis Collins reworked “This Land Is Your Land” to argue that genetic information should be freely available to the scientiﬁc community. However, his use of that Woody Guthrie song was sadly ironic, on multiple levels. “This Land Is Your Land” is a song written by an unabashed socialist as a paean to communal property…. The folk-song tradition from which Guthrie emerged valued the open borrowing of lyrics and melodies; culture was meant to be freely created and recreated in a democratic, participatory way.
If this was so, then why was Collins’s use of “This Land Is Your Land” painfully ironic? Even though it was written over sixty years ago, the song is, to quote Woody Guthrie himself, still “private property.” Guthrie based the melody of “This Land Is Your Land” on the Carter Family’s 1928 recording “Little Darlin’ Pal of Mine,” which in turn was derived from a nineteenth-century gospel song, “Oh, My Loving Brother.” This means that, in the twenty-ﬁrst century, the publishing company that owns the late Guthrie’s music can earn money from a song about communal property, which was itself based on a tune that is over a century old. Far more disturbing, Guthrie’s publishing company prevents musicians from releasing altered, updated lyrical versions of that song. We won’t be hearing Collins’s mutated “This Gene Is Your Gene” anytime soon.
What’s the connection, you might be wondering, between folk music and genetic research? Although obviously very different endeavors, the practitioners of both used to value the open sharing of information (i.e., melodies or scientiﬁc data). In these communities, “texts” were often considered common property, but today this concept has been fundamentally altered by the process of privatization, that is, the belief that shared public resources—sometimes referred to by economists and social scientists as the commons—can be better managed by private industries. And in recent years, there’s been a signiﬁcant erosion of both the cultural commons and the genetic commons, resulting in a shrinking of the public domain. The fact that folk melodies and lyrics are now privately owned rather than shared resources is a depressing example of how our cultural commons is being fenced off. As for the genetic commons, the patenting of human and plant genes is but the furthest logical extension of privatization—taken at times to illogical lengths.
HAPPY BIRTHDAY, SCREW YOU
Like with many things relating to copyright, the story of how Time-Warner’s music-publishing division came to own “Happy Birthday to You” is long, convoluted, and absurd. It’s also a telling narrative about folk music—how it evolved from a living, breathing part of culture to little more than one musical genre among many, a mere section of a record store….
I can now tell the story—after nearly ten years of digging through journals, books, music-trade papers, old master’s theses, and other dusty sources. It goes like this: Schoolteacher Mildred J. Hill and her sister Patty published the song’s melody in 1893 in their book Song Stories for the Kindergarten, calling it “Good Morning to All.” However, the Hill sisters didn’t compose the melody all on their own. There were numerous popular nineteenth-century songs that were substantially similar, including Horace Waters’s “Happy Greetings to All,” published in 1858. The Hill sisters’ tune is nearly identical to other songs, such as “Good Night to You All,” also from 1858; “A Happy New Year to All,” from 1875; and “A Happy Greeting to All,” published 1885. This commonality clearly suggests a freely borrowed melody (and title, and lyrics) that had been used and reworked throughout the century. Children liked the Hill sisters’ song so much that they began singing it at birthday parties, changing the words to “Happy Birthday to You” in a spontaneous form of lyrical parody that’s common in folk music.
It wasn’t until 1935 that the Hill sisters ﬁnally got around to registering a copyright on the melody and the new birthday lyrics, claiming both as their own. The years rolled on, and so did the law-suits, of which there were many. Then, in 1988, Birch Tree Group, Ltd., sold “Happy Birthday to You” and its other assets to Warner Communications (which begat TimeWarner, which will one day give birth to OmniCorp, or a similarly named entity)…. It turns out TimeWarner hit the jackpot when the U.S. Congress added twenty more years of protection to existing copyrights. As a result, “Happy Birthday to You” won’t go into the public domain until 2030.
How better to protect an investment than to aggressively police the song’s use? The current owner does this job quite well, much like the song’s previous stewards. One person who was very well acquainted with royalty payments and copyright law was Irving Berlin, the famous American popular-music composer. His 1934 Broadway play As Thousands Cheer included a scene where actors sang the litigation-prone birthday song. Although the lyrics of “Happy Birthday to You” had not yet been copyrighted—that wouldn’t happen for another year—the Hill sisters’ publishing ﬁrm nevertheless claimed that his use of the song was an infringement on the melody of “Good Morning to You.” The illicit singing was in all probability very innocent, but as was the case with later lawsuits against other infringers, they didn’t take pity on Berlin.
Postal Telegraph, a company that began using “Happy Birthday to You” for singing telegrams in 1938, found itself treading in copyright-infringement waters, as did Western Union. Western Union career man M. J. Rivise remembers, “From 1938 to 1942, most of our singing telegrams were birthday greetings, and ‘Happy Birthday to You’ was the cake-taker.” Postal Telegraph apparently received permission from the American Society of Composers, Authors, and Publishers (ASCAP)—the organization that collects royalties for song-publishing companies—to use “Happy Birthday to You” without paying royalties. By 1941, ASCAP changed its mind and hiked the royalty rates. Western Union and Postal Telegraph refused to pay, commissioning birthday songs based on the public-domain melodies of “Yankee Doodle” and “Mary Had a Little Lamb.” The public thought they were pretty lame, as you might imagine, so by 1950, the singing of “Happy Birthday to You” resumed, with the licensing problem sorted out….
The Hill sisters based “Good Morning to All” on an existing melody, and the lyrics were spontaneously generated by a bunch of ﬁve- and six-year-olds. Because the melody, ﬁrst published in 1893, is now in the public domain and the lyrics weren’t even written by the Hill sisters, there is little reason why the copyright to “Happy Birthday to You” should still be enforced. But that hasn’t stopped the song’s stewards from taking every measure to prevent others from singing it without paying royalties.
In the mid-1990s ASCAP sent letters to Girl Scouts and other summer camps, informing them that they had to purchase a performance license in order to sing certain songs. The fact that such a notice hadn’t been issued before illustrates the rising level of entitlement among copyright owners by the end of the twentieth century. Under the guidelines set forth by this ASCAP letter, songs such as “This Land Is Your Land,” “God Bless America,” and, of course, “Happy Birthday to You” could not be sung at the summer camps without buying a license. Copyright law deﬁnes a “public performance” as something that occurs “at a place open to the public, or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” For instance, around a campﬁre.
Girl Scout camp ofﬁcials were told that the penalty for failing to comply with copyright laws would range from ﬁve thousand dollars and six days in jail to one hundred thousand dollars and a year in jail for every unauthorized performance. After the American Camping Association (ACA) was approached by ASCAP, the ACA sent out a newsletter warning its members of the possible risks of litigation. Some took the warning very seriously, including a Girl Scout Council director who advised future counselors at a training session to limit their repertoire exclusively to Girl Scout songs. The Houston Chronicle reported that “several cash-strapped camps stopped singing the songs” altogether.
ASCAP CEO John LoFrumento defended his organization’s hardball tactics: “They buy paper, twine and glue for their crafts— they can pay for the music, too. We will sue them if necessary.” This climate of fear resulted in the following surreal scenario reported by the Minneapolis Star Tribune, which sounds like an episode of Sesame Street directed by David Lynch.
Something is wrong in Diablo Day Camp this year. At the 3 p.m. sing-along in a wooded canyon near Oakland, Calif., 214 Girl Scouts are learning the summer dance craze, the Macarena. Keeping time by slapping their hands across their arms and hips, they jiggle, hop and stomp. They spin, wiggle and shake. They bounce for two minutes. In silence. “Yesterday, I told them we could be sued if we played the music,” explains Teesie King, camp codirector and a volunteer mom. “So they decided they’d learn it without the music.” Watching the campers’ mute contortions, King shakes her head. “It seems so different,” she allows, “when you do the Macarena in silence.”
Finally, however, ASCAP backed down after the kind of public-relations smackdown that comes when you threaten to beat up Girl Scouts and take their lunch money. Soon after national wire services picked up the story, ASCAP entered into negotiations with Girl Scout leaders and hammered out guidelines that waived full royalty payments for nonproﬁt camps. After an agreement was reached, ASCAP released a statement claiming that it “has never sought, nor was it ever its intention, to license Girl Scouts singing around a campﬁre,” a direct contradiction of the statements made before the public-relations debacle came to a head. Today, ASCAP charges the Scouts $1 a year, which allows the company to save face while at the same time reminding everyone that the kids are allowed to sing only because of ASCAP’s good graces.
MAKING FOLK MUSIC
One year, I was taking a shuttle van back from the airport, glad to be back in Iowa City but exhausted from the Christmas holidays and feeling mute. However, I was alone with a driver who obviously wanted to chat, so I answered his questions about what I do. I mentioned my interest in music, which got the full attention of Jim Bazzell—the grizzled, ﬁfty something man behind the wheel. It turned out that Bazzell’s father had been in a band called Jimmy and the Westerners, one of the many country-music combos that roamed the land in the 1940s and 1950s. They once performed at Nashville’s Grand Ole Opry and had their own radio show, though the group mainly made a living playing in honky-tonk bars around the Southwest.“My dad couldn’t read music and would play by ear,” says Bazzell. “I remember my mom would scramble to write down song lyrics as they came on the radio.” He chuckles, “Of course, she’d get a lot of ’em wrong because she couldn’t write as fast as they sang, so my dad would just make up the lyrics he didn’t know.”
This kind of improvisation used to be a common practice, especially in folk and country circles where lyrics and melodies were treated as raw materials that could be reshaped and molded in the moment. When writing my last book, for instance, I happened to be listening to a lot of old country music, and I noticed that six country songs shared the same vocal melody, including Hank Thompson’s “Wild Side of Life.” In his exhaustively researched book Country: The Twisted Roots of Rock ’n’ Roll, Nick Toches documented that the melody these songs used was both “ancient and British.” It’s unlikely that the writers of these songs simply ran out of melodic ideas and decided to pillage someone else’s music. It wasn’t artistic laziness. Rather, it’s probable that these six country songwriters, the majority of whom grew up during the ﬁrst half of the twentieth century, felt comfortable borrowing folk melodies. They probably didn’t think twice about it.
This was also a time when more people knew how to play musical instruments, like Bazzell’s family, which performed small gigs at local hospitals and the like. His dad was proﬁcient on ﬁddle and guitar—“any stringed instrument, really,” Jim says—and the kids learned to play at an early age, as did his mom. The stories he told reminded me of the song “Daddy Sang Bass,” which Carl Perkins wrote and Johnny Cash popularized. “Mama sang tenor,” the song’s chorus continued. “Me and little brother would join right in there.” It describes how the singer’s parents are now in heaven and how one day he’ll rejoin the family circle in song, concluding, “No, the circle won’t be broken . . .”
The chorus makes an overt reference to an important folk song that dates back to the nineteenth century: “Will the Circle Be Unbroken,” which the Carter Family made famous. Starting in the 1930s, Woody Guthrie drew direct inspiration from a lot of songs associated with the Carter Family, recycling their melodies to write his own pro-union songs. For example, Guthrie wrote in his journal of song ideas: “Tune of ‘Will the Circle Be Unbroken’—will the union stay unbroken. Needed: a sassy tune for a scab song.” Guthrie also discovered that a Baptist hymn performed by the Carter Family, “This World Is Not My Home,” was popular in migrant farm-worker camps, but he felt the lyrics were counterproductive politically. The song didn’t deal with the day-to-day miseries forced upon the workers by the rich and instead told them they’d be rewarded for their patience in the next life:
This world is not my home
I’m just a-passing through
My treasures are laid up somewhere beyond the blue
The angels beckon me
From heaven’s open door
And I can’t feel at home in this world anymore.
The hymn could be understood to be telling workers to accept hunger and pain and not ﬁght back. This angered Guthrie, so he mocked and parodied the original—keeping the melody and re-working the words to comment on the harsh material conditions many suffered through. “I ain’t got no home, I’m just a-ramblin’ round,” he sang, talking about being a homeless, wandering worker who gets hassled by the police, rather than a subservient, spiritual traveler waiting for an afterlife door prize. Instead of looking to heaven—because “I can’t feel at home in this world anymore”— Guthrie wryly arrived at his song’s punch line: “I ain’t got no home in this world anymore.”
In 1940 Guthrie was bombarded by Irving Berlin’s jingoistic “God Bless America,” which goes, in part, “From the mountains to the prairies / to the oceans white with foam / God bless America, my home sweet home.” The irritated folk singer wrote a response that originally went, “From California to the New York Island / From the Redwood forest to the Gulf Stream waters / God blessed America for me.” (Guthrie later changed the last line to “This land was made for you and me.”) Continuing with his antiprivatization theme, in another version of this famous song Guthrie wrote:
As I was walkin’—I saw a sign there
And that sign said—no trespassin’
But on the other side . . . it didn’t say nothin’!
Now that side was made for you and me!
He set the lyrics to a beautiful melody he learned from the Carter Family, giving birth to one of the most enduring (and endearing) folk songs of all time. Guthrie’s approach is a great example of how appropriation—stealing, borrowing, whatever you want to call it— is a creative act that can have a powerful impact. Before Guthrie, the Industrial Workers of the World, the Wobblies, borrowed from popular melodies for their radical tunes, which were published and popularized in the Little Red Songbook. These songs also parodied religious hymns, such as “In the Sweet By-and-By,” which was changed to, “You will eat, by and by.”
For Guthrie and many other folk musicians, music was politics. Guthrie was afﬁliated closely with the labor movement, which inspired many of his greatest songs; these songs, in turn, motivated members of the movement during trying times. That’s why Guthrie famously scrawled on his guitar, “This Machine Kills Fascists.” Appropriation is an important method that creative people have used to comment on the world for years, from the radical Dada art of the early twentieth century to the beats and rhymes of hip-hop artists today. Guthrie drew from the culture that surrounded him and transformed, reworked, and remixed it in order to write moving songs that inspired the working class to ﬁght for a digniﬁed life. Instead of passively consuming and regurgitating the Tin Pan Alley songs that were popular during the day, Guthrie and other folk singers created culture in an attempt to change the world around them. They were truly part of a counterculture, not an over-the-counter culture.
Curious about the copyright status of Guthrie’s decades-old music, I called up Woody Guthrie Publishing and spoke to a very nice gentleman named Michael Smith, the general manager of the organization. He was clearly familiar with the folk-song tradition and obviously knowledgeable about Guthrie, but he nevertheless had a lot of trouble accepting the idea that copyright extension was a bad thing for art and culture. I was surprised when Smith told me that the song-publishing company that owns Guthrie’s music denies recording artists permission to adapt his lyrics. And I was shocked when Smith defended the actions of the company, called The Richmond Organization (TRO), even after I pointed out that Guthrie often altered other songwriters’ lyrics. “Well,” Smith explained, “he admitted to stealing, but at the time that Woody was writing…” he paused.“I mean,things have changed from Woody’s time.”
They certainly have. During the 2004 election season, a year after I spoke to Michael Smith, a small-time team of cartoonists posted a Guthrie-invoking political parody on their Web site. Not surprisingly, TRO threatened to sue. The animated short portrayed G. W. Bush and John Kerry singing a goofy ditty to the tune of “This Land Is Your Land,” where Bush said, “You’re a liberal sissy,” Kerry replied, “You’re a right wing nut job,” and they sang together, “This land will surely vote for me.” Guthrie’s copyright managers didn’t think it was funny at all. “This puts a completely different spin on the song,” TRO’s Kathryn Ostien told CNN. “The damage to the song is huge.” Perhaps more damage is done to Guthrie’s legacy by practicing such an aggressive form of copyright zealotry.
“If someone changed a lyric in Woody’s time,” said Michael Smith, “chances are it wasn’t going to be recorded and it was just spread through campﬁre singing, you know, family-time singing and stuff like that. You know, now you can create your own CD at home and distribute it any way you want to, and so the dissemina-tion is a lot broader, a lot faster, and can be a lot more detrimental to the integrity of the song.” Detrimental to the integrity of the song? I pressed him further on Guthrie’s own alterations of others’ songs and asked what Woody would think of TRO locking up his folk-song catalog. “The answer to that is, you know, ‘Hey, you’re going to have to ask him, because we have a duty,’ ” Smith said. “We don’t know what Woody would have wanted—we can’t tell.”
Soon Michael Smith began to make a little more sense to me—at least economic sense. “If you allow multiple rewrites to occur, then people will think it’s in the public domain, and then you have a hard time pressing people to prove to them that it’s not in the public domain.” Then the publishers can no longer generate revenue from it. That a company can still make money off “This Land Is Your Land” is exactly the type of thing I believe Woody Guthrie would not have wanted. Even worse, that TRO prevents musicians from releasing altered, updated versions of his music probably makes Guthrie roll in his grave. But don’t trust me; listen to the man himself. When Guthrie was still alive, for instance, Bess Lomax Hawes told him that his song “Union Maid” had gone into the oral tradition, as folklorists call it.
“It was part of the cultural landscape, no longer even associated with him,” said Hawes, the daughter of the famous song collector and archivist Alan Lomax. “He answered, ‘If that were true, it would be the greatest honor of my life.’ ” In a written statement attached to a published copy of his lyrics for “This Land Is Your Land,” Guthrie made clear his belief that it should be understood as communal property. “This song is Copyrighted in US,” he wrote, “under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin’ it without our permission will be mighty good friends of ours, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.” Notice that he mentioned the song’s copyright lasted twenty-eight years, though the term was later lengthened.
Also note that Guthrie said, “We wrote it” not “I wrote it,” some-thing that indicates Guthrie didn’t see himself as the song’s sole author. Since much of the song’s power comes from that lovely melody passed down to him, how could he? In light of Guthrie’s view, how sad it is that others continue to taint this socialist musician’s ideals by keeping his songs private property, turning them into a lucrative revenue stream rather than a shareable part of our common cultural heritage. If Woody Guthrie had to make his art under the overly restrictive policies his song-publishing company imposes on today’s musicians, it would have been very hard for him to make his music at all. In some cases it would have been impossible, for “things have changed.”
In a dramatic turn of events, Ludlow Music, the subsidiary of TRO that controls Guthrie’s most famous copyrights, backed off from its legal threats against JibJab.com’s parody. This was after the Electronic Frontier Foundation (EFF)—a nonproﬁt organization that defends civil liberties online—came to the Website’s rescue, providing legal council. What made the aftermath of the JibJab.com ﬂap remarkable wasn’t merely that the copyright bullying ended. More interesting was the discovery by EFF senior intellectual property attorney Fred von Lohmann that, according to his research, “This Land Is Your Land” has been in the public domain since 1973! He writes:
Fact#1: Guthrie wrote the song in 1940. At that time, the term of copyright was twenty-eight years, renewable once for an additional twenty-eight years. Under the relevant law, the copyright term for a song begins when the song is published as sheet music. (Just performing it is not enough to trigger the clock.) Fact #2: A search of Copyright Ofﬁce records shows that the copyright wasn’t registered until 1956, and Ludlow ﬁled for a renewal in 1984. Fact #3: Thanks to tips provided by musicologists who heard about this story, we discovered that Guthrie published and sold the sheet music for “This Land Is Your Land” in a pamphlet in 1945. An original copy of this mimeograph was located for us by generous volunteers who visited the Library of Congress in Washington, D.C. This means that the copyright in the song expired in 1973, twenty-eight years after Guthrie published the sheet music. Ludlow’s attempted renewal in 1984 was eleven years tardy, which means the classic Guthrie song is in the public domain. (I’ll note that Ludlow disputes this, although I’ve not heard any credible explanation from them.) So Guthrie’s original joins “The Star-Spangled Banner,” “Amazing Grace,” and Beethoven’s Symphonies in the public domain. Come to think of it, now that “This Land Is Your Land” is in the public domain, can we make it our national anthem? That would be the most ﬁtting ending of all.
Because art isn’t made from thin air, the existence of a large and thriving public domain enriches the quality and diversity of creative expression. It’s an important resource used by creative people to make new works, such as the musicals Les Misérables (based on the nineteenth-century novel by Victor Hugo) and West Side Story (based on Shakespeare’s Romeo and Juliet). The public domain also promotes artistic freedom of expression®, because it eliminates the rigid control some copyright owners exercise over the context in which their works appear.
Disney—which strongly lobbied for the Bono Act—made billions of dollars recycling “Snow White,” “Pinocchio,” “Beauty and the Beast,” and many other old stories and fables. Like Guthrie, it would have been much harder for Walt Disney to legally make his fortune if he had to work under the intellectual-property laws his corporate heirs advocate. In his dissenting opinion in the challenge to the Bono Act, which the Supreme Court upheld, Justice Stephen Breyer argued that this law threatens the endangered ecosystem that is our cultural commons. “I cannot ﬁnd,” wrote Breyer, “any constitutionally legitimate, copyrighted-related way in which the statute will beneﬁt the public. Indeed, in respect to existing works, the serious public harm and the virtually nonexistent public beneﬁt could not be more clear.”
Copyright protectionists defend the Bono Act by pointing out that Congress was only adhering to international copyright standards. However, this assertion ignores the fact that U.S.–based corporations such as Disney had a hugely inﬂuential role in setting these standards. In 2003 Illegal Art—a label hosted by Steev Hise’s collage-centric website detritus.net and run by the pseudonymously named Philo Farnsworth (after the inventor of the television)—fought back. The label began work on its latest project, a compilation CD named Sonny Bono Is Dead. In its press release soliciting the input of artists, Illegal Art stated, “We encourage artists to liberally sample from works that would have fallen into the Public Domain by the year 2004 had the Sonny Bono Act failed,” adding slyly that “artists are also encouraged to create new works by sampling Sonny Bono’s output.”
The public domain, a commons that anyone can freely draw from, runs counter to the guiding ideology of our hyper-commercialized, free-market age. The dynamic of privatization is an overpowering one. Much of what we hear from the mainstream news media is a coded neoliberalist message that says everything should be up for sale, including our genetic heritage: our bodies, our selves. The pressure to pin down every gene and place it in a locked safe has fundamentally altered the long-standing scientiﬁc norms of sharing and openness in the ﬁeld of genetics, replacing them with secrecy and closure. This has eroded the scientiﬁc commons of genetic in-formation, and many insiders have argued it has made it more difﬁcult for researchers to do their scientiﬁc work.
The existence of a commons encourages creativity and innovation in both art and science, because this kind of openness allows people to build on others’ discoveries or creations. As Sir Isaac Newton put it three centuries ago, “If I see further, it is because I stand on the shoulders of giants.” But the shrinkage of the genetic commons increases the need to obtain permission from patent owners if a researcher wants to use certain privately “owned” genes. Similarly, rather than being able to freely draw from melodies and lyrics, as Woody Guthrie did, today’s musicians have to get the consent of song publishers before they can alter a folk song such as “This Land Is Your Land.” In both cases, the creative process is bureaucratized and monetized, lowering the chances of the kinds of accidental epiphanies that occur when we have more freedom to experiment—musically or scientiﬁcally.
Today, in the ﬁeld of genetics, the idea of an open scientiﬁc commons where knowledge is freely shared almost seems quaint rather than something that was central to Western science for centuries. Noted microbiologist Emmanuel Epstein says, “In the past it was the most natural thing in the world for colleagues to swap ideas on the spur of the moment, to share the latest ﬁndings hot off the scintillation counter or the electrophoresis cell, to show each other early drafts of papers, and in other such ways to act as companions in zealous research.” Now, he says, simply, “no more.” The logic of privatization has fundamentally transformed legal and philosophical assumptions about human life, converting it into a product—an immensely proﬁtable one. This has created a signiﬁcant shift in the way we think about our world, where life has been transformed (or reduced, depending on your point of view) to commodiﬁed information. As Monsanto CEO Robert Shapiro obliquely put it, “information” was replacing “stuff.”
I’m often asked, “How can you patent a gene?” For some, it doesn’t seem to make sense, but it’s not completely illogical. To put it another way, gene patenting is based on its own kind of logic. But before you can understand how genetic material can be owned, it’s important to know what it is, so here’s a crash course. DNA is a device that stores information, like the hard drive of a computer, and within the DNA molecule are individual units called genes. DNA’s double-helix structure is like a long, twisted ladder that can be composed of thousands of base pairs of nucleotides. These nucleotides are known as letters: speciﬁcally, A, T, C, and G. A chromo¬some is a long piece of DNA that can contain as little as one gene, or thousands of genes, depending on the complexity of the organism. And a genome is the sum total of all that is needed to build a living being.
To recap: chains of nucleotide molecules create DNA, which contain multiple genes, which make up chromosomes, which make up a genome. Think of a genome as an encyclopedia that has multiple volumes (chromosomes), each volume has several thousand terms (genes), and the deﬁnitions of those terms are written in an alphabet that only contains the letters A, T, C and G. This is why the genome is often referred to as “the book of life,” but rather than being copyrighted as a Stephen King novel would be, genes fall under patent law. To return to the computer analogy, you can ﬁt all the information contained in a human genome (all the data necessary to create you) on a compact disc. The human genome contains 1.5 × 109 bytes of information, which is roughly the same amount con-tained in a seventy-ﬁve-minute hip-hop CD by Snoop Dogg.
Much like computer software, genetic information is “programmed” to stimulate the production of proteins, which is facilitated by RNA—a close relative of DNA that only has one strand of nucleotides. RNA is transcribed from the DNA, creating a messenger RNA, or mRNA. This is known as a transcript because it carries a copy of a section of DNA that can assemble amino acids into proteins (much like how information is sent via e-mail). Following this metaphor of communication, it’s in this transcription that a gene is “expressed” (the gene “tells” the mRNA to build a protein that tells the cell to do stuff).
Genetic expression occurs when molecules obey physical forces, similar to the way electrical impulses sent to speakers recreate music. Think of the gene in charge of producing the growth hormone protein as being like an MP3 ﬁle that contains Snoop Dogg’s “Gin & Juice.” The data contained in the MP3 ﬁle triggers the software program that translates the 1’s and 0’s into something recognizable. The computer sends an electronic signal to your speakers, which hurtles sound waves through the air, which vibrates in your ear so that you can hear Snoop rap, “It’s kinda hard bein’ Snoop D-O-double-G / but I, somehow, someway, keep comin’ up with funky-ass shit every single day.” In much the same way, the gene directs the growth hormone protein to initiate a cascade of signals that produces cell growth and division, which results in a gain in height and weight. Information, whether it’s stored in an MP3 ﬁle or a gene, directly creates a physical response.
Incorrect recording can result in problems. The mere substitution of a T for an A in one particular gene causes sickle-cell anemia, for instance. In addition, genetic information is conveyed not just in the order of letters, but also how the letters are spaced out. For the sake of argument, let’s say that the gene that controls the growth hormone protein might contain the following letters—CTAGG repeated—organized like this: CTAGG, CTA, GGCT, AGG, CTAGG, CTAG, GCTAGG. Information is embedded not just in the ordering of letters, but also in the spacing (just as the timing of a joke’s punch line, the pause, makes all the difference in the world). There’s a huge difference between “notjustintheorderingoﬂettersbutalsointhespacing” and “not just in the ordering of letters but also in the spacing” and “no tj us tint he or de ring of let ters bu tals ointh es pacing.” If this gene were a rapper, then MC DNA might bust something like, “It’s kinda hard bein’ the C(noop) T A double G / but somehow, someway, I keep comin’ up with funky-ass growth hormone proteins every single day.”
Defenders of gene patents argue that they aren’t patenting the genes themselves (as they exist in nature, in our bodies). They are instead patenting “isolated and puriﬁed” DNA sequences or synthetic analogs. This means the DNA sequence is removed from its original biological context to trigger the creation of therapeutic proteins, or other such things, much like chemical compounds are invented in the laboratory. The problem with this logic is that DNA sequences look more like pure information than invented physical compounds, and control of that patented information can limit others’ ability to create medicines and therapies. “At the moment,” argues Nobel Prize–winning geneticist John Sulston in his memoir The Common Thread, “the practice of granting biological patents is not heeding the distinction between discovery and invention.” Despite the fact that companies say they don’t technically own a gene, they have de facto control over the way that gene’s sequence can be used—which is only a slight rhetorical distance from actual ownership.
Because of a landmark Supreme Court case and congressional legislation, 1980 was a pivotal year for genetic research. In the Diamond v. Chakrabarty decision, a ﬁve-to-four majority ruled that a living, genetically altered microorganism could be patented under U.S. law. Previous to this ruling, it was the policy of the U.S. Patent and Trademark Ofﬁce (PTO) that living organisms—in the case of Diamond v. Chakrabarty, a bacterium that helped clean oil spills could not be patented. But the Supreme Court ruled otherwise, stating that “anything under the sun that is made by the hand of man” is patentable subject matter. That same year, Congress passed the Bayh-Dole Act to encourage the commercialization of inventions produced by universities and other recipients of federal funding. An inﬂux of private money poured into university science departments, and since the act’s passing, the private funding of university biomedical research has increased by a factor of 20.
This growth in subsidies provided the legal justiﬁcation for researchers to exploit human genes. And when I use the word “exploit,” I’m not using it in an ideological way—I’m simply using the terminology of a patent lawyer. During an interview with a New York Times reporter, Todd Dickinson, the former U.S. Patent and Trademark Ofﬁce’s commissioner, took exception to the idea that patents allow a “government sponsored monopoly,” a phrase he found imprecise. Instead, Commissioner Dickinson corrected the reporter, saying candidly and without irony, “We like to say ‘right to exploit.’ ” Today, private pharmaceutical companies (many of which are partnered with universities) are engaged in a manic—maniacal, even—race to patent every imaginable human gene, protein, and cell line that might be proﬁtable.
The BRCA-1 and BRCA-2 genes are linked to breast cancer and are owned by Myriad Genetics, whose literature reports, “Women with a BRCA mutation have a 33 to 50 percent risk of developing cancer by age 50 and a 56 to 87 percent risk by age 70.” Myriad has a monopoly right over the use of the gene in diagnostic tests or therapies, which means that every time a woman is tested to ﬁnd out if she carries those mutated genes, a hefty royalty has to be paid to Myriad. Also, if a researcher discovers a therapy that prevents can-cerous mutations in these genes, he or she is obligated under the law to secure a license from Myriad, and the company has used its patent to block research on the gene. This is one of the ways that these kinds of gene patents contribute to the skyrocketing costs of drugs and medical care in the United States and throughout the world.
Helena Chaye, like many I’ve spoken with in the business of drugs and science, feels uncomfortable about these kinds of situations. As the director of Business Development at the biotech corporation MediGene, she secures and sells gene patent licenses for the company. Chaye ﬁnds herself in an uneasy position. She has both a Ph.D. in molecular genetics and a degree in law, and is intimately familiar with both areas. “From a private company’s perspective,” she tells me, “you want everything to be protected. You want the ability to block other people, and you want the ability to monopolize a certain sector or a certain product and block others from entering, even though you may not be the one [who’s] actually developing it.” For many commercial entities, it simply makes no business sense to put anything in the public domain.
“I personally don’t believe in that,” Chaye says. “From what I do for a living, it’s a struggle, philosophically, that I’m having to patent everything.” She continues: “If genetic sequencing was publicly available for diagnostics, for example, you wouldn’t have to go through Myriad and pay four thousand dollars for a breast cancer test. If that was available to other parties, then you could have somebody else develop it at a much cheaper rate and be available for everyone.” She pauses. “I mean, the ﬂip side of that is they say, ‘Well, we’re not going to be able to develop something so expensive unless there’s some sort of monopoly that protects us in the future.’ But I think there’s a reasonable level at which certain things should be protected, and certain things should be left to the public domain.”
My favorite patent request was submitted by a British waitress and poet who protested the gobbling up of the genetic commons by ﬁling patent application GB0000180.0. She wanted to patent herself. “It has taken 30 years of hard labor for me to discover and invent myself,” Donna MacLean drily wrote in the application, “and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new. I have led a private existence and I have not made the invention of myself public.” MacLean added, “I am not obvious.” The provocateur poet didn’t receive her patent, but she made her point.
PATENTS AS STUMBLING BLOCKS
While many are still happily riding the moneymaking bandwagon, there are a growing number of scientists, medical researchers, and even companies that believe certain gene patents can inhibit research. The chief scientiﬁc ofﬁcer at Bristol-Myers Squibb, Peter Ringrose—hardly a radical anticapitalist Luddite—said that there were “more than ﬁfty proteins possibly involved in cancer that the company was not working on because the patent holders either would not allow it or were demanding unreasonable royalties.” Dr. Gareth Evans, a consultant in medical genetics, also believes that the economic value of genetic patents make research more secretive and restrictive, and therefore lessens the chances of scientists ﬁnding cures.
The hoarding of these kinds of patents threatens to create a “tragedy of the anticommons,” as Rebecca Eisenberg, a National In¬titutes of Health–afﬁliated law professor at the University of Michigan, calls it. The phrase “tragedy of the commons” was coined by Garrett Hardin in his classic essay of the same name, and its primary argument goes like this: If anyone can use common property—a pasture where farm animals can freely graze, for instance—then it can be overused and trashed. While this can happen to physical resources, a patented gene won’t suffer the same fate, but as Eisenberg points out by inverting the phrase, tragedies do occur from fencing off the genetic commons. Yes, it’s true that patent protection provides the ﬁnancial incentive for companies to invest in research and development, which, in turn, generates many useful drugs and inventions. Patents aren’t inherently bad, but Eisenberg argues that certain patents can be problematic when the protected materials resemble a discovery, rather than an invention.
This kind of patent ownership creates bureaucratic stumbling blocks and economic disincentives that can dissuade laboratories from dealing with certain genes. This was the case with hemochromatosis, a hereditary condition that can cause liver or heart failure (the gene that carries the disorder is found in one in ten people). In 1999 two companies were ﬁghting over the ownership rights of the patented gene connected to hemochromatosis. This created confusion over who owned the patent and to whom medical laboratories should pay licensing fees, helping to shut down research on DNA tests that screened for the condition. Five labs halted testing for he-mochromatosis, and twenty-one others decided not to offer the test at all….
Geneticist John Sulston argues in his book The Common Thread that it seems unlikely “that patent laws combined with untrammeled market forces are going to lead to a resolution that is in the best interests of further research, or of human health and well-being.” Advocates of privatization argue that having a commons that anyone can freely draw from will mean the end of creativity and innovation, but the opposite is often true. The way patent law is applied in genetics can limit researchers’ choices, which means the scientiﬁc imagination becomes routinized and stiﬂed. There’s little room for the kinds of visionary ideas and accidental discoveries that evolve into real breakthroughs. An argument for the commons—whether it’s the genetic commons or a folk-song commons—is an argument for more creative elbow room.28 But because of our blind faith in privatization, freedom of expression® has been limited artistically, socially, and scientiﬁcally.
SEEDS = INFORMATION
I live in Iowa, and I am surrounded by corn, pork, pickup trucks, and, from what I hear, meth labs. Over the past few years, I’ve been inundated by plenty of weird and wonderful stories about farming and rural living. However, one of the most unsettling, science ﬁction–sounding scenarios I’ve come across is the “Technology Protection System,” or “terminator technology,” as it is known in the press. This technology enables seed companies to genetically al-ter their patented seeds so that crops become sterile after one plant-ing, turning off life like a light switch. It’s a way of preventing farmers from retaining seeds from the previous year’s crop and re-planting them.
Saving and replanting seeds is something we humans have been doing since we stopped being nomadic creatures, but the practice is now illegal with seeds that are patented. The terminator seeds were developed by the U.S.–based Delta and Pine Land, whose president trumpeted, “We expect the new technology to have global implications.” Delta and Pine Land claimed that the terminator seed would be marketed primarily in developing countries to prevent farmers from saving, trading, and/or replanting seeds that are sold by U.S. corporations. Interestingly, the seed industry experienced many aspects of the Napster ﬁle-sharing controversy a few years before it hit the music industry.
While there are obvious differences, there are also striking similarities. MP3 music ﬁles circulate on the Internet because someone had to purchase a CD, which was then inserted into a computer and “ripped” into digital ﬁles. These ﬁles can then be exactly duplicated, and copies are made of these copies, then shared. This is also true of privately owned seeds, though the earth (rather than a computer) “reaps” this information without permission. These copied seeds can then be given to other farmers through informal trading systems, delivering them from person to person, a sort of rural peertopeer ﬁle-sharing network. Even though the seeds are patented, much like music is copyrighted, this can’t stop someone from creating a facsimile of someone else’s intellectual property. This is why the terminator technology was invented.
Sterile seeds may be an inconvenience for American farmers who, for various reasons—including being riddled with debt— want to continue saving seeds. But they may prove devastating for their poorer counterparts in Third World countries who rely on subsistence farming. U.S. Department of Agriculture (USDA) spokesperson Willard Phelps stated that the goal of the terminator technology is “to increase the value of proprietary seed owned by U.S. seed companies and to open new markets in second and Third World countries.” The primary creator of the terminator seed, Melvin J. Oliver, made clear his invention’s purpose to New Scientist: “Our system is a way of self-policing the unauthorized use of American technology,” he asserted, comparing it to copy-protection technologies that prevent the duplication of music. And we wonder why so much of the world hates us.
In mid-1998 Monsanto made an attempt to purchase terminator seed–patent owner Delta and Pine Land. However, this technology met with heated worldwide protests that targeted Monsanto as the next Great Satan, and in early 1999 the company stepped back in “recognition that we need some level of public acceptance to do our business.” Although Monsanto backed out of the merger, Delta and Pine Land, which still holds the terminator-seed patent with the USDA, has continued to develop the technology. Just as in the movies, the Terminator lived on. Delta and Pine Land ofﬁcial Harry Collins stated in January 2000, “We’ve continued right on with work on the Technology Protection System. We never really slowed down. We’re on target, moving ahead to commercialize it. We never really backed off.” Since then, more terminator-technology patents have been awarded.
Four-ﬁfths of the sixteen hundred patents issued for genetically modiﬁed crops are owned by just thirteen companies, and some of the most signiﬁcant patents belong to Monsanto. The St. Louis–based operation was founded in 1901 as a chemical company, and it gained notoriety in the 1970s because it was responsible for creating Agent Orange. This chemical compound was used by the military to clear jungles in Vietnam, which led to illness and death in thousands, and the company has also been implicated in several cases of employee and residential contamination. A Monsanto production plant contaminated the Missouri town of Times Beach so much that it had to be evacuated in 1982, and in 2002 Monsanto lost a case against lawyers representing a small Alabama town that had been poisoned as well.
By the mid-1990s Monsanto moved much of its chemical operations to biotechnology, and it is now a global leader in transgenic crops. The contract for Monsanto’s Roundup Ready soybeans allows the company to search a customer’s farmland for signs of saved seeds, and, to nab offenders, the company can track purchase records and check with seed dealers. Among other things, the company has hired Pinkerton detectives—the same private police force hired by the Rockefellers to murderously bust unions in the 1920s—to investigate tips on seed saving. In addition, the company created and advertised the existence of hotlines for neighbors to re¬port farmers who save seeds. “Dial 1–800–ROUNDUP,” said a Monsanto ad. “Tell the rep that you want to report some potential seed law violations or other information. It is important to use ‘land lines’ rather than cellular phones due to the number of people who scan cellular calls.”
Monsanto also developed a kit that determines whether or not a plant was derived from patented seeds by using a principle similar to a pregnancy test, but applied to leaves. Scott Good was one of the many farmers who dealt with the wrath of Monsanto when he saved his seeds and replanted the company’s intellectual property. “They showed up at my door at six o’clock in the morning. They ﬂipped a badge,” said Scott of Monsanto’s agents. “They acted like the FBI. I was scared.” Farmers who infringe on Monsanto’s patents have been ﬁned hundreds of thousands of dollars, and some face bankruptcy. Much like other large seed companies, Monsanto offers incentives for seed distributors to carry their patented seeds rather than public-domain seeds.
A farmer’s choice to plant public-domain seeds becomes in¬creasingly difﬁcult or impossible when near-monopolies exist within the agribusiness industries. Factory farming has ﬂooded the market with low-priced crops, which forces farmers to purchase the patented, high-yield seeds or go out of business. University of Indiana seed geneticist Martha Crouch commented to Science magazine, “Free choice is a nice idea, but it doesn’t seem to operate in the real world.” Although critics have blasted the existence of these so-called Frankenfoods, we should keep in mind that farmers throughout history have manipulated the genetic makeup of crops by selecting for certain favorable traits. Also, these genetically modiﬁed crops often grow in more abundant quantities, need less labor, and sometimes require fewer chemical pesticides or herbicides. In other words, there are reasons why North American farmers plant these seeds.
One of the trade-offs, however, is that these patented crops are also uniform in their genetic makeup. This is a problem because when we rely on fewer varieties of food, we increase our chances of exposing ourselves to major food shortages. For instance, the bi¬ological cause of the Irish Potato Famine in the mid-1800s was rooted in a reliance on two major varieties of potatoes. The Phy¬tophthorainfestans fungus precipitated the destruction of Ireland’s primary food staple for ﬁve years, spreading to the Highlands of Scotland and elsewhere. Although the same blight affected the Andes, because South American farmers preserved hundreds of vari¬eties of potatoes, the effects of the fungus were minimal. In fact, the only reason the Europeans could restock their food supply was that they could draw on varieties of potatoes from the Andean region.
The spread of uniform, patented seeds has accelerated the loss of thousands of varieties of crops. Today, 97 percent of the vegetable varieties sold by commercial seed houses in the United States at the beginning of the century are now extinct, and 86 percent of the fruit varieties have been lost. These numbers are actually quite conservative because there were surely more varieties that weren’t col¬lected in the nineteenth century. Over the twentieth century the varieties of cabbage dropped from 544 to 20; carrots from 287 to 21; cauliﬂower from 158 to 9; apples from 7,089 to 878. The list goes on. In sum, roughly 75 percent of the genetic diversity of the world’s twenty most important food crops has been lost forever. Be-cause biodiversity is a key factor in the ability of plants to adapt to changing conditions, and humans’ ability to do the same, reduced biodiversity seriously threatens ecological support systems.
Despite skepticism from Europe, the planting of altered (and patented) soybeans, corn, potatoes, and canola in the United States and Canada has exploded, and the market for such crops is expected to grow to as much as $500 billion in the next few decades. The dramatic rise in the growing of patented crops in North America will likely be followed by the same expansion in other countries throughout the world—one way or the other. It’s a biological fact that, once the pollen from genetically modiﬁed crops travels through the air, it can pollinate nongenetically modiﬁed crops. This invasive pollination has happened to many organic farmers, such as Laura Krouse, based in Iowa. Because of the presence of the Bt gene in her corn, Krouse’s crop can no longer be certiﬁed as organic, and she lost half her business in the process.
Why can’t these farmers prevent this contamination? The answer, my friend, is blowing in the wind. “I don’t know if there’s room for a business like mine anymore,” said Krouse. “Biologically, it doesn’t seem like it’s going to be possible because of this sea of ge¬netically engineered pollen that I live in, over which I have no control.” In 1998 Monsanto sued Canadian farmer Percy Schmeiser after the company discovered its patented canola plants growing on his property. The seventy-three-year-old Schmeiser argued that he shouldn’t have to pay Monsanto a licensing fee because the pollen had blown onto his property from neighboring farms. Although Monsanto said this might be the case—in fact, the company acknowledged that Schmeiser never placed an order for its Roundup Ready canola—he was still infringing on their patent.
In a narrow 5–4 decision, Canada’s Supreme Court ruled in favor of Monsanto in 2004, stating that it wasn’t concerned with “blow by” dissemination of patented plants. It simply determined that the farmer “actively cultivated” Monsanto’s property. These patented seeds have also traveled south because the North American Free Trade Agreement (NAFTA) allows ﬁve million tons of corn to be sold in Mexico. Many residents of the country, and the Mexican government itself, are up in arms over what they see as an un-welcome invasion of their farmlands. But Dr. Michael Phillips, an executive director at the Biotechnology Industry Organization (BIO), isn’t very sympathetic. “If you’re the government of Mexico, hopefully you’ve learned a lesson here,” he bluntly told NOW with Bill Moyers. The lesson? “It’s very difﬁcult to keep a new technology from, you know, entering your borders—particularly in a biological system.”
GLOBALIZATION AND ITS DISCONTENTS
Much of the developing world—primarily rain-forest countries—is loaded with what some gene hunters refer to as “green gold.” This refers to medically useful plant materials that can yield massive proﬁts. However, identifying a valuable DNA sequence is a very difﬁcult task, like ﬁnding a needle in a mountainous biological haystack. Scientists working for Western companies get around this problem by relying on tribal shamans and medicine men to point them to plants that are medically useful. Using the knowledge developed by indigenous people in developing countries increases by 400-fold a scientist’s ability to locate the plants that have speciﬁc medicinal uses. In another estimate, by consulting with the local communities, bioprospectors can increase the success ratio from one in ten thousand samples to one in two in their quest to ﬁnd active ingredients that can be used in medicines.
For instance, using an active ingredient extracted from an indigenous plant in northeastern Brazil, the U.S.–based MGI Pharma developed a drug to treat symptoms of xerostomia, or “dry-mouth syndrome.” The drug’s development capitalized on the local knowledge about the properties of the jaborandi plant, which literally means—I love this—“slobber-mouth plant.” Knowledge about the plant’s properties had been passed down for generations, but the company did not compensate the native Brazilians in any way. Nor did MGI Pharma have to, even though it was the local knowledge that led the U.S. researchers to the drug discovery in the ﬁrst place….
Under the global patent system, intellectual property can only be produced by people in white lab coats employed by companies with huge amounts of capital at their disposal. The time and labor and collective achievements of indigenous farmers are rendered worthless, devalued as being merely “nature.” These kinds of bioprospecting patents—or, as globalization critic Vandana Shiva calls them, biopiracy patents—are built on the ﬁction of individualistic scientiﬁc innovation. This false premise ignores the collective nature of knowledge and denies communities patent protection….
Western scientists would have never “discovered” these plants if not for the cultivative labor of indigenous communities over hundreds and thousands of years. Unfortunately, this is not an argument that makes sense in most established theories of economics—so, to paraphrase Woody Guthrie, the poor people lose again.
The U.N.’s 1999 Human Development Report pointed out that more than half of the most frequently prescribed drugs throughout the world have been derived from plants, plant genes, or plant extracts from developing countries. These drugs are a standard part of the treatment of lymphatic cancer, glaucoma, leukemia, and various heart conditions, and they account for billions in annual sales. According to the United Nations Development Project study, developing countries annually lose $5 billion in unpaid royalties from drugs developed from medicinal plants. The United States sees it differently. It calculates that developing countries owe its pharmaceutical companies $2.5 billion for violating their medical patents….
once corporate biotechnology reduces active ingredients found in developing countries to their molecular components, the commodity can be manufactured rather than grown. Western multinationals hold a vast amount of patents on naturally occurring biological materials found in the Southern Hemisphere. These companies own 79 percent of all utility patents on plants; Northern universities and research institutions control 14 percent; and parties in Third World countries have almost no holdings. In Mexico, for example, in 1996 only 389 patent applications came from Mexican residents, while over 30,000 came from foreign residents. In this way, intellectual-property laws help to exacerbate the unequal distribution of wealth among rich and poor nations.
Although patent law carries with it a Western bias, that doesn’t mean the future is a bleak, foregone conclusion for developing countries. In recent years, these nations and their allies within non-governmental organizations have lobbied strongly to better protect the resources of countries rich in traditional knowledge and biodiversity. For instance, the World Intellectual Property Organization (WIPO) convened the “Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore”—which met seven times between 2000 and 2004. The committee’s goal is manifold, but with regard to genetic resources it aims to encourage “beneﬁt sharing” agreements between compa¬nies and countries rich in valuable biological material.
An example of this is a 1991 deal linked between the pharmaceutical company Merck and the Costa Rican nonproﬁt Instituto Nacional de Biodiversidad (INBio). The agreement held the potential for Costa Rica to earn more than $100 million annually, money generated from INBio’s 10,000 collected samples of biological material. Although INBio signed more than ten similar contracts with other companies, it should be noted that these kinds of agreements are entirely voluntary and continue to be rare. In fact, Merck ended its association with INBio in 1999, and no royalties had been earned as of 2004. Lorena Guevara, the manager of bioprospecting at IN-Bio, told me that negotiations with companies over the terms of beneﬁt sharing are quite difﬁcult. Still, Guevara remains optimistic, even in the face of forces that are much more powerful than the nonproﬁt for which she works—or, for that matter, Costa Rica itself.
North American and European countries, and particularly the United States, have led an unrelenting battle to force developing countries to adopt acceptable (to them) intellectual-property systems. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) has been an instrumental tool that forces member coun¬tries of the World Trade Organization (WTO) to adopt standardized intellectual-property laws. The general public in the First and Third World had no say in writing TRIPS. A senior U.S. trade negotiator remarked that, “probably less than ﬁfty people were responsible for TRIPS.” TRIPS forces developing countries to adopt intellectual-property laws that often run counter to their national interests, and if they don’t comply, they’re threatened with economic blackmail in the form of trade retaliations.
Strengthened intellectual-property laws in developing countries decreases the ability of local communities to gain access to techno-logical information (through reverse engineering and other imitative methods). This makes technological catching-up all the more difﬁcult. In this brave new privatized world, the only way to have market power is to innovate. But the only way to innovate is to have lots of capital to invest in the ﬁrst place, and developing countries only account for 6 percent of global research and development ex-penditures. As poor nations strengthen their intellectual-property regimes, their markets increasingly are dominated by imported goods, because their local industries can’t compete.
The WTO acts as a policing mechanism that allows countries to bring “unfair competition” charges and other actions against of-fending countries. For instance, the Bush 2.0 administration has been under pressure from the biotech industry to bring charges against the European Union for its ban against genetically modiﬁed food. In a letter to Bush signed by virtually every agribusiness and biotech ﬁrm, it claimed that the ban stigmatized biotechnology and “may be negatively affecting the attitudes and actions of other countries.” As if other countries should not dare form their own opinions and policies.
For years, the United States opposed in WTO courts the waiving of patents in countries that have been overwhelmed by AIDS and other deadly diseases, making it illegal for those countries to import generic versions of drugs at a fraction of the cost. Economic studies of Taiwan, China, and India have shown that when patent laws are strengthened, drug prices go up because these countries can no longer manufacture generic drugs. This pattern has been repeated numerous times in poorer countries, where price increases can be devastating. During the 1990s, the Brazilian government was proactive in dealing with AIDS, allowing local pharmaceutical manufacturers to produce low-cost generic HIV therapies. It wrote its patent laws to allow for what’s called compulsory licensing, which legally compels owners to license their patents at a rate regulated by the government.
This approach allowed Brazilian manufacturers to produce Nevirapine—which helps prevent mother-to-child HIV transmission—for an affordable amount. It cost $0.59 U.S. dollars a day to treat each victim, which resulted in a 50 percent drop in AIDS-related mortality between 1996 and 1999. As a reward for this achievement, the United States took Brazil to the WTO dispute panel to force the country to undo its liberal patent laws. “The power of the rich countries and of the transnational corporations,” argued John Sulston, “was being used in a bullying and inequitable fashion to achieve ends that beneﬁt them rather than mankind as a whole.” After years of worldwide pressure, the United States granted concessions in the WTO that were largely meaningless, like a provision that allowed countries to manufacture lifesaving drugs without penalty. However, most of these African countries had no such pharmaceutical production base, making it impossible for them to legally acquire the drugs.
Years dragged on, millions upon millions died until, in 2001, the United States agreed on a proposal that allows countries to import manufactured generic drugs. But under pressure from the pharmaceutical industry, the Bush 2.0 administration quietly changed its position and sent its trade representative to the WTO to kill the proposal. Much of the world reacted with rage to this shift, and ﬁnally in 2003 the United States signed on to an agreement that technically allowed countries with no manufacturing base to import cheap lifesaving drugs. I use the word “technically” because the agreement contains so much red tape that it severely limits the amount of supplies it can import. “Today’s deal was designed to of-fer comfort to the U.S. and the Western pharmaceutical industry,” said Ellen Hoen of the medical-aid group Doctors Without Bor¬ders. She told the Associated Press, “Unfortunately it offers little comfort for poor patients. Global patent rules will continue to drive up the price of medicines.”
I only hope that she is wrong, though given the WTO’s and the pharmaceutical industry’s track record on this issue, I have little faith. The kinds of constraints intellectual-property laws impose on culture may be bad for music and creativity, but in the case of drug patents it’s literally a life-and-death matter. Patent policy is as much a moral issue as it is an economic one, solid proof that property rights trump human rights nine times out of ten. Yes, I realize that these pharmaceutical companies invest millions of dollars in re¬search and development, but there are times when proﬁts alone shouldn’t guide us and empathy and compassion should take over. However, we’re living in a time when, increasingly, money is the only thing that matters.
I’m not claiming that all patents are bad things, because it’s demonstrable that they can encourage investment in the development of products. However, I am arguing for two things. First, there should be some ﬂexibility in the way patent protections are enforced, especially in situations such as the worldwide AIDS crisis. It simply should not have taken ten years for the WTO to adopt half-hearted rules about importing generic drugs, and I believe that those who tried to block it have blood on their hands. Second, there are too many instances when overly broad patents are awarded, which can cause information ﬂow to be slowed and research and innovation to be stunted.
ONE FINAL IRONY
The most shameful detail in all of this is that all developing countries—whether they were the United States and Switzerland in the nineteenth century or Brazil and Thailand in the twentieth century—had very weak patent and copyright laws. Historically, countries left out of the technological-development loop have emphasized the right of their citizens to have free access to foreign inventions and knowledge. The United States in particular had extremely lax intellectual-property laws at the turn of the twentieth century, which allowed it to freely build up its cultural and scientiﬁc resources. Also, the United States’ agricultural economy depended on the importation of crops native to other countries because the only major crop native to North America was the sunﬂower.
Even the music for the U.S. national anthem, “The Star-Spangled Banner,” was swiped from a popular eighteenth-century English song, “To Anacreon in Heaven.” This old drinking song was written by a group of English dandies in the Anacreonic Club, which was devoted to an orgy-loving Greek bard who lived during the 500 b.c.e. era. (Little do people know when they patriotically sing the anthem at sports games that the tune originally celebrated Dionysian explosions of sex and drinking.) In 1812 lyricist Francis Scott Key borrowed the tune, and in 1931 it became the national anthem. Then in 1969, at Woodstock, Jimi Hendrix famously reappropriated the anthem and drenched it in a purple haze of feedback that ﬁt the violent and dissonant Vietnam era. We are a nation of pirates.
Now the United States and other rich countries want strict enforcements of intellectual-property laws that ensure developing countries will remain uncompetitive within the globalized economy. Again, we wonder why much of the world hates us. Defenders of overbroad gene patents, terminator seeds, and global intellectual-property treaties argue that without technologies and legal protections that safeguard their investments, there would be no incentive to develop new, innovative products. Companies such as Monsanto (whose comforting motto is “Food—Health—Hope”) insist that their motivations for doing business are grounded in a desire to prevent world hunger. By creating more efﬁcient products, biotech, agribusiness, and pharmaceutical companies can contribute to the betterment of humanity, they say.
HOWEVER, IF YOU buy that selﬂess line of reasoning, then I have a genetically altered monkey-boy I want to sell you (all sales ﬁnal).