RESOURCES
Speeches
“Keeping it Common” Launch of the TCI – September 2004
By James Arvanitakis
The tragedy of the commons
In a 1968 essay, Garret Hardin introduced the concept of the ‘tragedy of the commons’, focussing on the physical (environmental) commons. Based on the broad belief of “methodological individualism” (Jacobs 1994), Hardin (1968) argues that humanity inevitably exploits the commons and concludes that “the survival of the commons depends on ‘mutual coercion mutually agreed on’” (Reid 1995; 29). Hardin (1968) argues that this should be undertaken by an administrative elite, though today’s neo-liberal capitalism offers us “the market”.
Today, much of what has traditionally been thought of as the commons has disappeared. There is very little left in our world that is shared, as there seems to be little understanding of anything that does not rely on defined private property rights (Jacobs 1994). A lack of private property rights means that the “resources” are subject to constant dispute and potential conflict. The natural extension of this concept is to commercialise the commons – run them like a business – otherwise they will be neglected. For example, recent discussions about the soil salinity around Australia’s rivers prompted leading corporate figures demanded that Australia’s rivers be run “like a business” (Peatling 2002: 8).
This is a re-occurring theme in much of the neo-liberal literature, as it is often argued, “privatisation of these global ‘commons’ might just be the future of conservation” (Pearce 2002; 10). A 2002 report from Britain’s Royal Society (quoted in Pearce 2002: 10), criticises government run conservation programs, development aid, protected areas and even gene banks, and claims that it is time ‘for capitalism to take charge’ (Pearce 2002; 10). According to the report, the environment should be “parcelled out to the private sector, with market forces influencing everything from cleaning up our rivers and atmosphere to protecting forests and soils” (ibid.).
The Commons
Reid (1995; 29) defines the commons as physical – shared environmental resources such as a forest, the atmosphere, fisheries or grazing land. But the commons must also be understood on the cultural and political sphere. These are the areas that society shares – the need for safety, trust, cooperation, shared intellect, human relationships and so on. That is, the very foundations of what makes our society such, rather than a group of individuals living in close proximity to each other.
A more appropriate definition for the commons is offered by the Ecologist (1996; 6): “the commons is the social and political space where things get done and where people have a sense of belonging and have an element of control over their lives”, providing “sustenance, security and independence” (ibid; 7). The commons are thus ubiquitous, and function all the time and everyday (ibid; 7).
There are a number of important features that can be used to describe true commons. The first is that true commons cannot be commodified – and if they are – they cease to be commons. The second aspect is that while they are neither public nor private, the Ecologist (1993; 9) claims that they tend to be managed by local communities. While this may be true to a degree, commons cannot be exclusionary. That is, they cannot have borders built around them otherwise they become private property. The third aspect of the commons is that, unlike resources, they are not scarce but abundant (Ecologist 1993; 9). In fact, if managed properly, they work to overcome scarcity.
Cultural Implications
The clear implications are that the community cannot manage communally based resources. This type of argument contains a clear logic – a clear cultural statement – that ‘human nature’ means we are ‘greedy’, and as such, we must be protected from ourselves or all resources will disappear. The source of the problems is human nature, which can only be disciplined by market forces and the profit motive.
The general argument is that environmental destruction should be blamed on the selfishness of people (Goldman 1997: 4). Thus, communal institutions must be replaced with “private ownership and stronger state interventions in order to reverse the actions of the world’s majority who blindly think they have the freedom to overgraze over-consume and over-breed” (ibid).
Thus, as the Ecologist (1996: 13) notes, the original belief presented by Hardin is one that profit is the only “operating social value”. Though Goldman (1997: 4) notes that Hardin’s position was never based on empirical evidence, it is linked with a long liberalist theoretical tradition that we must commercialise to get the best out of people. Despite being “debunked”, the model’s assumption have persisted and are now applied to the global commons, and is often seen as being at the core of environmental problems in the third world (Goldman 1997: 1).
However, by viewing community from the looking glass of the cultural commons, we gain an alternative perspective. For as the definition suggests, true commons are not exclusionary, but rather if shared, become more abundant. Further, “communities” can be established both locally and globally – existing in any space and at any time. The ‘academic community’ provides one such example: I do not just belong to the institution that I may be physically located, but rather a wider discipline that is located throughout the world and with links to the past, and (hopefully) to the future.
Defining the cultural commons
Trust is the first of the cultural commons relevant here. Using the work of Giddens (1991: 34), trust can be defined as “confidence in the reliability of a person or system, regarding a given set of outcomes or events, where that confidence expresses a faith in the probity or love of another, or in the correctness of abstract principles (technical knowledge).” Thus, trust is “bound with contingency”, as it caries connotations of reliability (ibid.). In this way it is not the same as faith, but is derived between the link of faith and confidence.
Hope is the second cultural common that is a fundamental feature of a functioning community. It is a social process “by which individuals can define a meaning for their lives” (Hage 2003: 15). Hage (ibid.: 17) describes a surplus of hope that allows for it to be shared and freely distributed. As a common, hope can be openly shared and rather than diminishing, actually expands. Hage (2003: 16) is inspired by Bourdieu in his description of hope, and goes on to argue that the “key to a decent society is above all this capacity to distribute… opportunities for self-realisation, which are non other than what we have been calling societal hope.”
The third cultural common is safety, and it refers to the sense of peace. That is, rather than a sense of security that can be purchased through greater military expenditure or the establishment of private neighbourhoods (Davis 1992), safety is a state of being. Safety is a cultural common because it does not need to be purchased. It is here that we see its importance in the establishment of community, for trust becomes abundant if openly shared.
The final cultural common to be raised is intellect. Here, intellect is defined as the open sharing of ideas that is not driven by commercial gain. Thus, it ranges from research material freely available on the internet, to the open discussion of research progress at conferences such as this one. Intellect is shared away with no commercial transaction undertaken. The sharing of intellect is inclusionary as the wider community is welcomed.
The contest over the commons
In No Logo, Naomi Klien (2001b: 311) describes the battle over “street culture” that has emerged between corporations and their attempts to commodify it, and the reaction of “anti-corporate activists”. Here, the streets have become a commodity, both physically (through billboards) and culturally (through the cooption of local cultures by the advertising industry). In reaction, protests organised by groups such as Reclaim the Streets (RTS) work to reverse this commodification (ibid. 32). This conflict presents us with a metaphor of much of what the social justice movement is fighting for.
We can see the privatisation of many things that were once outside the domain of the market. For example, the idea of the public education system is that it is essentially a common, being available for everyone to share. However, the continued privatisation of the public schooling system means that the public education system is being abandoned as parents are left with the inevitable decision to support the public education system (a common), at the risk that their children will not receive an education equivalent to those that are offered by private institutions. Thus, the choice is one of trusting others to also attend public institutions, or to feel the anxiety that ‘if I do not do it, others will anyway’.
Similar parallels can be drawn towards other commons such as neighbourhoods. Davis (1992; 174) notes the growing demand for gated communities as people lose a sense of trust and safety replaced by ‘security’. As one private security organisation explains; “We’re not a security guard company. We sell a concept of security” (Davis 1992; 174).
In this way, safety can be contrasted to the concept of security. Neocleous (2000: 7) follows the history of security and its links to militarisation. But Neocleous’ (ibid: 9) greatest insight is the linking of security to the neo-liberal agenda, which has come to “refer to the liberty of secure possession; liberty, that is, of private property rights.”
Mike Davis (1992) presents a bleak account of what happens when ‘security’ replaces safety in major urban centres. Concentrating on Los Angeles, Davis (ibid; 154) describes how “wealthier neighbourhoods in the canyons and hillsides cower behind walls guarded by… private police and state-of-the-art electronic surveillance systems”. This has been accompanied by “totally secure” shopping malls and the militarisation of city life. For Davis, this has been driven by a loss of safety within the communities. The result is a merging of architecture and police apparatus (ibid; 155). To make the point, Davis (1992; 160) quotes an article from Urban Land magazine on new urban designs:
A downtown can be designed and developed to make visitors feel that it… is attractive and the type of place that “respectable people” like themselves tend to frequent… A core downtown area… (that includes) offices and housing for middle- and upper-income residents… can assure a high percentage of “respectable”, law-abiding pedestrians (p160)
While Davis notes that this is not unique to Los Angeles, but a general trend is the establishment of “defensible urban centres” and fortress cities (Davis 1992; 159, 172), others describe how the emergence of gated communities is a worldwide trend (Gorden 1999).
Similarly, there is a battle over intellect and intellectual property rights. This has most notably been highlighted in debate over the Trade Related Intellectual Property (TRIPs) agreement, which sits within the auspices of the World Trade Organisation. These negotiations have not only limited access to medicines for pandemics such as HIV/AIDS, but also the use of these agreements is moving to limit the research and development of medical breakthroughs more generally.
For example, it has been reported that genetic research organisations have begun placing patents over any “diagnostic or therapeutic use of BRCA1 and BRCA2 and the proteins that they code for”, that is, the genes that assess a woman’s risk of breast or ovarian cancer (Westphal 2002; 29). The result is that “a big biotechnology company (in this case Myriad) with its two key genes, going around the world telling small diagnostic labs they can’t test people any more because the genes are private property” (ibid.).
Westphal points out that others are starting to copy Myriad’s example, setting a far reaching precedent that life forms themselves can be claimed as private property despite the fact that these genes belong to each human individually. Westphal’s investigative report published by the New Scientist, noted that the aims of biotechnology organisations are to obtain a monopoly of certain genes: “there are now numerous patent applications for key cell receptors that claim their associated genetic sequences and mechanisms of actions (ibid; 29).
This type of action moves towards breaking down the possibility for (the cultural common of) intellect. Westphal notes that soon “after being granted the US patents in the mid-1990s, Myriad successfully halted most testing being done by the labs in the US” (ibid; 30). Though the road that Myriad has travelled has not been without direct challenge, the organisation has been successful in establishing borders (in this case intellectual property rights) where there once existed a world that did not recognise them. Despite the rhetoric that appropriate private property rights are required to promote research, Westphal notes that:
Generally speaking, it’s widely acknowledged that once someone patents a gene, researchers interested in finding diagnostic tests or therapies based on that gene will shy away from it for fear of infringing the patent. (Westphal 2002; 30)
Thus, the battle between the commodification and re-establishment of the commons works in this way. While a central focus of the neo-liberal the establishment of appropriate property rights in both physical and cultural elements of our society, the CGM works to find a way around this.
Privatisation in Australia
Concluding remarks
One day while walking in the corridor at the University of New South Wales, various posters had appeared advising of a workshop that would assist Ph.D. candidates to commercialize their research. Presenters would include a patent lawyer, who was to advise students of the complicated processes that needed to ensure the successful commercialization of their ideas. This paper argues that rather than encouraging further research and an expansion of intellect and knowledge, this process is acting to place commercial boundaries on what was once a common. As such, research and intellect are impeded.
Rather than understanding the world as a group of utilitarian, atomized and one-dimensional individuals, the commons offers an alternative lens in understanding how communities functions. This perspective is highlighted by the academic community, which has expanded the knowledge of the wider community by treating its intellect as a common. If we place a patent lawyer on a payroll, not only do the commons become enclosed but so does our wider community.
It is important to draw the link here with Sklair’s (1996 and 2000) Transnational Capital Class (TCC). These are those elite managers, policy advisers and politicians that actively promote the agenda of neo-liberal solutions to all areas including the environment. Here, Hardin’s administrative elite seems replaced by the TCC who offer the markets to better manage the commons.
The majority of economic textbooks state that if private property rights cannot be defined then we are witnessing market failure. For example, see MacTaggart et al for a one-dimensional perspective on this topic.
My research has confirmed that both AID/WATCH and FoE ( Australia) have been involved in Reclaim the Streets rallies in Australia.
Click here for a for a copy of the above speech in PDF format.
Pharmaceuticals as commons – By Marina Carman
Launch of TCI – September 2004
What are patents and where did they come from?
Patents are national laws which allow the right to register a product or process and thus control its reproduction and use – usually for a defined period.
Patent law began its life as a means of censorship and monopolistic reward bestowed by European monarchies.
In the 19 th century the push for free trade generally painted intellectual property laws as protectionist.
However, from the early 20 th century corporations based in industries reliant on knowledge-production came to view patent protection as an essential means to build their profits and market control through cartels and monopolies – the chemical, power, machinery, electrical, petroleum, rubber and later computer industries.
There have also been historical movements to protect the rights of authors and other individuals whose works are then used in the public domain. However, in general the fight around patent law has been about mercantilist and corporate interests.
Patents allow brand name pharmaceutical companies control over the price at which their product will be sold, and restrict competition with generic products. For this reason, increased patent protection has been sought through international trade negotiations.
Issue came into the spotlight from 2001 due to a court case by pharmaceutical companies against South African government for legislation aimed at making cheaper medicines available in specific circumstances.
Companies claimed this contradicted the World Trade Organisation agreement on Trade-Related Aspects of Intellectual Property Rights.
TRIPS came into being along with the WTO in 1994.
Developed countries and pharmaceutical companies successfully lobbied for measures such as extending patents from 10 to 20 years, increasing the range of patents, and strengthening punitive measures.
All WTO members are bound to implement laws in compliance with TRIPS – or face trade sanctions.
But in 2001, public debate ignited over the impact on affordable medicines in third world countries.
Under pressure, this was acknowledged as a problem in the Doha declaration at the WTO ministerial in 2001.
However, TRIPS essentially remained the same – with some safeguards and concessions (with large numbers of cumbersome conditions attached).
And an emerging problem is bilateral and regional trade agreements which even go beyond TRIPS, with no safeguards at all.
The best market mechanism for bringing prices down is competition with generics – which is why it is being restricted.
Most cheap antiretroviral drugs come from countries like India and Brazil which did not originally recognise patents on pharmaceutical products.
These countries now produce generic fixed dose combinations (numerous antiretrovirals combined in pills taken twice daily) for as little as U$140 a person per year.
The same combination of brand name drugs (taken as six pills a day) still costs five times as much – although the price has come down.
However, in 2005 India will have to become TRIPS-compliant – and this will also affect almost all other manufacturing countries in the third world (which rely on India for active constituents).
How is patent protection justified?
Simple message: more intellectual property rights equals more innovation and investment. There are a number of problems with this:
One
Very few “inventions” have not borrowed or copied some aspect from someone or somewhere else.
Copying and imitation actually stimulate learning and knowledge/product development.
Ownership of knowledge limits this exchange and can actually stifle innovation – particularly if it isn’t seen as profitable. By definition it also means that others do not have ownership – shutting weaker players out. Monopolies mean more profits, but also stifle innovation.
Two
Research and development (for which companies are rewarded with patents) is not always linked to innovation. Pharmaceutical companies spend a great deal of time and money on extending the life of patents on profitable medicines, or “ever-greening” patents by researching minor variations on existing products and then registering them for new use. This has nothing to do with innovation and the development of new medicines. There is also a particularly questionable link between patent protection and increased research and development in infectious diseases, which predominantly affect the third world.
Three
When claiming intellectual property rights as a return for their investment in research and development, pharmaceutical companies often fail to acknowledge the role of public institutions in the production of knowledge which led to product development.
Four
Even if intellectual property protection did equal innovation, patent law says nothing about what a “fair return” is and nowhere is there any obligation to consider the ability of people to pay or the equitable distribution of these products. The ideological push for intellectual property rights has nothing to do with delivering innovation to the people who need it.
For instance, despite the push to enforce patent protection in developing countries, the major pharmaceutical companies are not particularly interested in this market for complex drugs like antiretrovirals – except for amongst wealthy elites who can pay high prices.
The whole fight has really been about protecting their first world market, and preventing a flow-on effect by threatening the principle of intellectual property rights.
What would pharmaceuticals as commons mean?
It is an important principle to view pharmaceuticals are a common good that should be publicly and freely availably to all those who need it.
Achieving this would mean a different social system based on human need and not profit. Under a truly cooperative system based on this principle, patents wouldn’t be needed – inventors and researchers would be assured a living, and pharmaceutical institutions would freely share their discoveries.
However, there are two main problems with proposing a removal of patents under the current system (even if it could be done):
- Under current system, patents provide some legitimate protection for the livelihoods of artists and inventors.
- Pharmaceutical development is important and under the current system a lot of it is carried out by private companies.
Corporations would probably benefit from removal of patents in relation to the former, and would withdraw from the development of certain unprofitable complex medicines – and, in the short-term at least, people would suffer.
However, there is ample evidence to support weaker patent law – and certainly not stronger.
Public policy could be adjusted to reward innovation rather than protectionist monopolies – at least to remove sneaky tricks like “ever-greening”.
While this would mean an immediate decline in the profitability of the pharmaceutical industry – it is the most profitable industry in the world and would be unlikely to collapse overnight.
However, another approach is to consider alternative ways of stimulating and regulating innovation.
For instance, there is a strong argument to foster publicly-funded research and development – and to adjust patent laws to keep this in public hands.
Walden Bello suggested such alternative on a grand scale at the Bangkok AIDS conference in July:
We need a new R&D framework, based on a people-oriented approach to patents, maybe coordinated by the UN, in which there is room for participation by many other actors, including governments, government institutes, and civil society organizations. This new Manhattan Project can be funded from a Global Fund, the bulk of which could come from a tax imposed on global drug sales. A 1 per cent tax on current global sales of $450 billion, for instance, would create a fund of $4.5 billion.
Part of the problem with patent law is that it has been removed from what democratic processes currently exist.
Standards such as fair representation, full information, and the absence of coercion are not currently present in the WTO negotiating system or in national decision-making on this issue.
However, all of these principles are behind the movements for change on this issue which have been gathering pace over recent years.
And it is most likely here that the eventual answer lies.
Click here for a for a copy of the above speech in PDF format.
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