The Expansion of Property Rights Brought about by TRIPS Is a Modern Version of the Enclosure Movement

Article excerpt

    The hand that signed the treaty bred a fever,
    And famine grew, and locusts came;
    Great is the hand that holds dominion over
    Man by a scribbled name.

                              Dylan Thomas

At the end of the eighteenth century the British crown declared Australia 'an uninhabited and unsettled land'. Subsequent commentators and judges invented the concept of Terra Nullius, which effectively legalised what has now more or less been recognised as a grand theft:

    After a long court battle non-Aboriginal law not only refused to
    recognise our claim to our land, it also refused to acknowledge we
    were ever there! Citing a doctrine called 'terra nullius', a judge
    said in 1970, that we were an 'uncivilised people with no
    recognisable system of law', that we had no 'proprietary interest
    in land' and that we passed through the land but did not own it.

It was not until 1992 that the Australian Federal Court nullified the concept of terra nullius and created a legal precedent for future land rights claims.(1)

Terra Nullius may have been technically nullified (though the land rights claims of Australian First Peoples and many others worldwide are largely still outstanding); but a new legal fiction--vita nullius--is now emerging on the global scene. This new and expanded form of theft is an attempt to assert that life itself is 'unsettled and uninhabited', and as such is open to proprietary interest. Instead of seeking legal justification for enclosing of land, the doctrine seeks the enclosure of living systems through patents, under the auspices of Trade Related Aspects of Intellectual Property Rights, coded under the innocuous acronym TRIPs.

The TRIPs treaty was signed by more than 100 government ministers under the auspices of the World Trade Organisation (WTO) in 1994, and passed mostly unnoticed. Introduced as part of the General Agreement on Tariffs and Trade (GATTS), the treaty specified a wide range of internationally binding legal requirements for intellectual property. In doing so, it not only radically strengthened monopoly privileges over intellectual property patents; it also paved the way for claims to the ownership of life itself. Thirteen years on, TRIPs remains relatively obscure, yet the processes it has set in motion could lead to a situation whereby everything imaginable, and not yet imagined, is owned by corporations, complete with the rights to rent it out.

The expedient and novel concept of terra nullius meant that the claimed 'discovery' of large tracts of the world could be settled and brought into the market system, regardless of the rights and customary practices of peoples already living there. This could be seen as an extension of feudal and pre-feudal practices of conquest and enslavement; vita nullius can perhaps be seen as the last frontier of the global enterprise of robbery, killing, rape and enslavement.

The TRIPs agreement represents the single greatest expansion of intellectual property protection in history. The process that culminated in the agreement was initiated and formulated by a small group of CEOs from multinational corporations, including strong representation from big Pharma and the then-emerging biotechnology industry. They identified and targeted intellectual property as much more than a key area for future growth: patents on life offered potentially phenomenal new areas of enclosure and profit. This small group drafted proposals, almost as a wish list, and then used government institutions in the US, international business partners in the EU and Japan, and eventually brute economic and political power, to force their designs through the WTO negotiations.

Such intellectual property 'rights', based on earlier landed property rights, depend on the distribution and exercise of power to ensure their effectiveness. The consequences can be devastating. For example TRIPs extended patent protection on medicines to twenty years, thereby keeping inexpensive generic medicines off the market, at the direct cost of the lives and health of millions. …