Sunday, 22 January 2012

Undercover among the intellectuals (two books reviewed)

The Global Governance of Knowledge: Patent Offices and their Clients, Peter Drahos, Cambridge University Press, 2010, ISBN: 9780521144360, Soft cover, 368 pp. Price: £25.99

Intellectual Property, Human Rights and Development: The Role of NGOs and Social Movements, Duncan Matthews, Edward Elgar Publishing, 2011, ISBN: 9781847207852, Hard cover, 304 pp. Price: £75.00

Book review by Christopher Wadlow (Professor of Law, UEA Law School, University of East Anglia, Norwich, UK)

What's it like to work in an intellectual property office, and what kind of intellectual is one likely to find there? Einstein and Housman we know about, but their brief tenures at the Swiss and British patent offices ended more than a century ago, so they hardly count. Are these offices filled with intellectuals in the sense of highbrow, cultured, bookish folk, who might otherwise have gone on to become harmless university professors, fussing over their footnotes; or might they be haunted by intellectuals of another colour altogether, red in thought and deed, from Noam Chomsky to Naomi Klein, from Russian anarchists to Mexican Zapatistas?

When the UK's Patent Office changed its name to the ‘Intellectual Property Office’, no less, with ‘Intellectual’ on a line of its own and more than twice as prominent, I was overcome for a moment by the thought of Concept House transformed into one of Brassaï's seedy left-bank cafés, where louche Parisian habitués and conspiratorial Russians émigrés would assemble at dead of night to drink absinthe and vodka, smoke Gauloises and Sobranies, foment revolution and insurrection, and discuss … Just what? Gustave Eiffel's attempted appropriation of the image of his eponymous tower, perhaps, and Bernard Edelman's celebrated response?1 The registration of ‘Anarchy’ as a trade mark for soap,2 and sports goods?3 The place of Alfred Nobel's dynamite patent in ‘the propaganda of the deed’?4

The first of these two books, by Peter Drahos, has left me sadly disillusioned in this respect, but delighted in others. Drahos is on fine form in The Global Governance of Knowledge, and his well-judged sense of satire is all the more effective for being used to season the dish, rather than smother the flavour. The added piquancy is very necessary since, by his own admission ‘patent office administration … is an excruciatingly dull topic’.

Drahos has conducted interviews at 45 patent offices, and among users and other interested parties, and the result is anything but excruciating to read, although his message is a disquieting one. The core of the book is about patent offices and the way they work, both individually, and increasingly in coordination with one another. There are chapters on the EPO, on the US and Japanese offices, and on trilateral cooperation. There follow individual chapters on the coming generation of patent offices of comparable importance: India, China, South Korea, and Brazil. These case studies are framed by an approximately equal number of chapters in which Drahos expresses his own reservations about the present functioning and future development of the global patent system. Two of his particular concerns are the ‘gaming’ of the system by patent attorneys and their clients for short-term gain in individual cases, but to the long-term detriment of the system as a whole, and the mindlessness with which a one-size-fits-all mentality has been propagated from the developed countries, to the least developed ones. One does not have to buy into every aspect of Drahos's philosophy to agree that there are serious issues here, and there is nowhere where you will find them better documented, or more elegantly presented.

Like Peter Drahos, Duncan Matthews also employs an interview-based methodology and, like Drahos, he has had foisted on him by his publishers a title which is too ambitious by far for what he is really concerned to cover. Just as Drahos's contribution is more accurately described by its subtitle, so Matthews's is about non-governmental organizations, and the role they play in the complex relationship between IP protection, human rights, and development. For this book is the work product from a year spent researching NGOs from the inside; a year embedded inside NGOs, as it were, at the front line of the war against AIDS, HIV, and other human crises.

If that sounds like a mission for PC Mark Kennedy5 then disappointment looms once again. If it is easy access to recreational drugs, running street-fights with les flics, and the all-night debauchery of Le Bal des Quat'z'Arts that you are looking for, then quite frankly the Quaker United Nations Office in Geneva isn't likely to be your scene. Not that Duncan Matthews isn't on the lookout for cheap drugs, but in an entirely blameless sense, unless you happen to be the chief executive of a member of the pharmaceutical industry. His interest is in the success which NGOs have had in promoting human rights objectives, whether in the sense of facilitating access to medicines through compulsory licensing, or allowing indigenous peoples to share in the success (or in the case of the San people of South Africa, the failure) of commercial embodiments of their traditional culture. Unlike the Seattle stone-throwers, these NGOs operate scrupulously within the law, and they pursue their objectives through legal norms and institutions, pitting human rights laws against the IP paradigm of the USTR and the WTO.

Between the introduction and the conclusion, three chapters out of eight have a thematic focus, and three concentrate on specific geographical areas. The first two substantive chapters after the introduction deal with public health and access to medicines, and with agriculture, genetic resources, and traditional knowledge. There follow the three national surveys, for South Africa, Brazil, and India, before we revert, in the final two chapters, to the linkage between IP, human rights, and development, and the role of the NGOs. The style of the book is very much in the academic model with, for instance, a lengthy bibliography, and an introduction precisely setting out the research objectives and methodology, and comparing the former to the pre-existing state of the art.

Thoroughly commendable as Matthews's approach may be in principle, it is not without its problems. The first is that NGOs constitute a very diverse ecosystem. To make the exercise manageable, Mathews deliberately confines his attention to NGOs in the sense of social movements of a particular kind, so as to exclude (for instance) industry lobby groups, associations of IP owners, associations for the improvement or advancement of IP, and associations of IP professionals. A back-of-the-envelope exercise in fitting names (or rather acronyms) to these categories shows that some very big beasts indeed have been excluded from consideration at the very outset. Secondly, he concentrates, as the subtitle indicates, exclusively on the role of this kind of NGO in relation to a limited range of rights-related issues, typically in medicine and agriculture, and in relation to a limited range of strategies by which those aims are pursued.

Fieldwork is always time-consuming, and limitations such as these are perfectly valid in terms of setting the parameters for a research programme. In the wider context, however, there is much more to be said about NGOs in relation to IP than is attempted here. Some (the ALAI, for instance) have been around for longer than the Global IP system itself, taking that as beginning with the Paris and Berne Conventions. Many have had observer status at WIPO (or its predecessors) for a century or more. On the other hand, and as Matthews acknowledges, most of the NGOs of the kind with which he is concerned came to be interested in IP very much later, so late in fact, that few (if any) of them were so much as peripherally interested in the original TRIPS negotiations prior to 1994.

This leads to another common feature of these NGOs, which is that very few of them have IPRs as their primary concern, even in the sense of being opposed to them. Rather, each has an agenda of its own, with which IPRs may engage, for better or for worse, and to a lesser or a greater degree. Their primary concerns are typically with advancing or protecting the social and economic rights of specific disadvantaged minorities, and they tend to see IPRs, and even human rights for that matter, mainly, if not exclusively, in terms of their particular cause. This may be a valid and even necessary perspective for social activists, but it is, by definition, an incomplete one. Ironically, it is little different, in principle, from the narrow-minded instrumentalism that put IPRs high on the agenda for the GATT/WTO Uruguay round in the first place. If Naomi Klein is missing from these pages, as she is, then so is Amartya Sen.

Although major sections of the taxonomic tree have been omitted altogether, the NGOs which remain are both diverse, and very numerous. Some of them are world-renowned ‘brands’ in their own right, like Oxfam or Médecins sans Frontières. Others have a prominence which depends on a single dominant personality, such as James Love's Knowledge Ecology International, formerly Ralph Nader's Consumer Project on Technology. Many, however, are as unknown to fame as they are to Fortune. This is how it should be, if grassroots NGOs are to be ‘owned’ by the people they are supposed to represent, rather than by wealthy (albeit well-meaning) absentee activists, but it makes for rather difficult reading whenever the focus changes rapidly. The sheer number of NGOs referred to leads to most of them being denoted by their initials or acronyms, and many of these are not only unfamiliar at first sight, but entirely meaningless to the inexpert reader. To confuse matters further, acronyms are also used for (inter alia) government departments, international organizations, legal instruments, medical conditions, and chemical compounds. The (very necessary) list of abbreviations runs to six and a half pages, from the inscrutable (3D and A2K), to the familiar (WHO, WIPO, and WTO), although WIMSA makes an appropriately whimsical intrusion to upset the dignity of that triad.

Of these two authors, Peter Drahos has at least ten years more experience in this type of research, and it is he who is the more successful in transforming his raw material into a coherent and eminently readable narrative. Small touches illustrate the deftness of his technique, such as his decision to begin his globetrotting (metaphorically, at least) in the tiny island state of Kiribati, whose population of 100,000 manages to support a patent office all of their own, with 20 granted pharmaceutical patents. In one respect at least, Drahos also has the easier hand to play. Patent offices may have proliferated to an absurd degree, but there are still fewer than 200 of them, they resemble one another more than they differ, and we have a reasonably clear expectation of what they are supposed to do. His ecosystem is relatively small and eminently manageable.

Duncan Matthews, in contrast, has to deal with at least a tenfold increase in the global number of players, and a proportionate increase in their diversity and degree of unfamiliarity to the reader. Matthews is also ill-served by his publishers in two avoidable respects. His text is frequently broken up by badly placed boxes of primary legal materials, presented with unnecessary prominence, and the notes (which are often needed to make sense of the narrative) are set as chapter endnotes rather than as footnotes. It is, unfortunately, rather dated since, although the book was published as recently as 2011, the fieldwork was carried out in 2005–2006. In the final analysis, there must be a lot more to say about NGOs (of all stripes) in relation to the workings of the global IP system than there is room to say here, but others will doubtlessly follow where Duncan Matthews has led the way, and this is an eminently interesting introduction to their world.

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Footnotes

1 Bernard Edelman and Edgar Roskis, “Beyond the frame”, Le Monde Diplomatique, July 1997, http://mondediplo.com/1997/07/photo (English translation of “La rue privatisée”, http://www.monde-diplomatique.fr/1997/07/EDELMAN/8838).

2 2550631 (Unilever, plc).

3 E3618303 and 2311581 (logo, with characteristic initial A in a circle, Stateside Skates Ltd).

4 John Merriman, The Dynamite Club: How a bombing in Fin-de-Siècle Paris Ignited the Age of Modern Terror (Houghton Mifflin Harcourt, New York 2009).

5 Paul Lewis and Rob Evans, ‘Mark Kennedy: A journey from undercover cop to “bona fide” activist’ The Guardian (10 January 2011).

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