Thomas Alured Faunce BA LLB (Hons) (ANU) B Med (Newcastle) PhD (ANU).

Senior Lecturer Faculty of Medicine and Faculty of Law, Australian National University.

Thomas.Faunce@anu.edu.au

Panel 7: “Intellectual Property and the Knowledge Commons- New Political Paradigms” of the Trans Atlantic Consumer Dialogue Conference

The Politics and Ideology of Intellectual Property March 21 2006, Hotel

Renaissance, Rue du Parnasse 19, Brussels, Belgium.

Intellectual Monopoly Privileges, Cost-Effectiveness Evaluation and the Knowledge

Commons-New Political Paradigms for Wisdom in the Age of Corporate Globalisation

OverviewTo chart broad directions for the future of politics and ideology in relation to global Intellectual Monopoly Privileges (IMPs)To make practical suggestions for a greater coherence and calibration between private rights claims for IMPs and knowledge commons projects backed by more established normative systems

The Global Contextof Contemporary IMP

The multinational corporate push for globally increased IMPs is causing a world crisis in the governance of knowledge, development,

culture and wisdom. As enhanced patents restrict access to existing and future medicines and medical technology, millions of poor people will suffer and die;The resultant concentrated corporate ownership and control of knowledge, technology, biological resources and culture fosters growing inequality of access to education, knowledge and technology, undermining development as freedom, democracy and social cohesion;The resultant plundering of the knowledge commons for private gain undermines altruistic and compassionate conceptions of the meaning of being human, as reflected in the previously influential normative traditions of bioethics, international human rights law and comparative religion

Modified from Geneva Declaration on the Future of WIPO

IMPs and Access to WisdomIMPs in Public Policy

Global Wisdom

Disjunction fromInternational Human Rights Law

Disjunction from Bioethics

Disjunction fromCompassion,Altruism,Forgiveness

Mountaintop Principles From IHRL, Bioethics and Comparative Religion, Not

Present in IMP Discourse

§Consider options not just from the perspective of immediate future generations, but from eternity§Paramount importance of respect for intrinsic

human dignity and forgiveness§In the middle-aged, wisdom should be detected

by virtue, having gradually arisen from the consistent use of conscience and reason to apply the categorical imperative in the face of obstacles

Terminological change

Intellectual Property Rights (“IPRs”)manipulates public respect for the Enlightenment Projects of natural

law (with its theological associations), the rule of law and international human rights

REPLACE WITH

Intellectual Monopoly Privileges (“IMPs”) sufficient elements of traditional description, but more accurate for educating the public and government policy makers as to the true

(selfish) agenda of multinational corporates

International legal concepts for building a positive commons for

global knowledge

Ius cogens (peremptory norms) Obligations erga omnes Common Heritage of Mankind ICCPR and ICESCR, UDHR, CROC, CEDAW etc Doha Declaration on TRIPS and Public Health Intrinsic human dignity

Bioethical concepts for building a positive commons for global

knowledge

Corporate social responsibility principle: UNESCO Universal Bioethics Declaration

Equity, Distributive Justice, Fairness Respect for whistleblowers (consistently applying

moral and ethical principles in the face of obstacles) Respect for Future Generations Intrinsic human dignity

Domestic Public Goods-Focused Institutional Structures

Legislation facilitating not-for profit corporations Constitutional protections of universal access to health care,

education, social security and accident compensation Constitutional protection of traditional and cultural wisdom Government-funded research (experimental use exemption

and no imperative to commercialise) Legislative protection of whistleblowers from unjust

reprisals and financial (qui tam) encouragement Strong anti-trust laws and administrative agencies

Selected Existing Horizon Projects

Global framework for Medical Research and Development, and Access to Knowledge, Treaties

WIPO Development Agenda WTO general agreement on provisions of public

goods Increased roles for non-government organizations

(NGOs) in normative decision-making,

Multilateral Medicines Safety and Cost-Effectiveness Treaty

Safety and Cost-Effectiveness Treaty for Medicines

Similar provisions in bilateral trade agreements Forthcoming Publication in: Globalisation and

Health

National Essential Drugs List

With CEAP (127)

Without CEAP (29)

No NEDL or CEAP (19)

CEAP but no NEDL (16)

156 countries with EDLS

1/3 within 2 years

3/4 within 5 years

Countries with a national list of essential medicines linked with cost-effectiveness

evaluation and price negotiation

Multilateral Safety and Cost-Effectiveness Treaty

Leverage over global industry on:

1) Commercial in confidence principles: not as to inhibit transparency, or endanger public safety or set unilaterally

2) Marginal cost of production

3) Parallel evaluations

4) Capacity building expertise

5) Joint trial registers

6) Binding outcome agreements

7) Evolution: tendering, public-private partnerships

Multilateral Safety and Cost-Effectiveness Treaty

Does not interfere with IMPs or Market AccessEnsures greater value for public moneyCoordinates IMP rents to end-points of normative systems of bioethics, IHRL and comparative religion

Substantive Patent Law Treaty 1) Linked cost-effectiveness evaluation process for patents

and (?) copyright 2) Non specialist judiciary (ICJ as final court of appeal).

Application of VCLT, ICCPR and ICESCR 3) No linkage of marketing approval and patent status 4) Common heritage list and approval process for traditional

knowledge, human genome, animals and plants 5) “Technical” improvements still monitored for public goods

impact on knowledge commons 6) Specialised agency to challenge spurious or evergreening,

or IMPs against public policy

Licensing of Multinational Corporations

Global licensing of multinational corporations Licensing conditions to include tax payable to

United Nations Licensing conditions may create responsibilities

for mutually negotiated specific communities or public goods projects

Treat corporations by law as people seeking to develop virtue, not as children abandoned with wolves

Downsizing and Restructuring

Economic efficiencies in merging functions and processes of WTO and WHO, WIPO and Human Rights Council

Allow appeals from WTO and bilateral Panel decisions, as well as regional IHR bodies, to the ICJ

Enhanced role of the international criminal court in dealing with multinational corporate activities that constitute an assault upon humanity (through direct and CEO responsibilities)

Linking public goods to trade sanctions

Long Term Visions

By-pass States to facilitate the registration for voting on international normative changes by the majority of citizens in communities and the world.Project to establish a non State-based constitution for the United Nations (separation of nationalism from the State)That new constitution to accord equal rights and responsibilities to corporations and people

Barriers to Public Goods in Global IP

Multinational corporations should be restricted in their capacity to fund the election campaigns of political parties.

Politicians should be prohibited from leaving public office to work for corporations and the same should apply to senior public servants

Multinationals should not be able to undermine the funding of NGOs

Anti-trust and media ownership laws should be tightly enforced

A Looming Barrier to Public Goods in Global IP

Oligarchic attempts to change social systems and values through normatively isolated emphasis on the corporate lobbying principle of “Innovation” linked with a trade-sanction-backed non-violation nullification of benefits provisions

Conclusion

Time is ripe to chart the principles for a future in which IMPs are linked with the great aspirations of humanity as expressed in normative systems such as bioethics, international human rights law and comparative religion

Without such a change humanity may drift into a shallow, materialistic future controlled by greedy Boss Sheriffs whose dominance will provoke an equally aggressive response from the disempowered through radical forms of religion