Ana Research - For Linked In Slide Presentation(Without Footnotes)
- 1. F ROM A RISTOTLE TO S TIGLITZ - A H ISTORY OF D ISCRIMINATION A GAINST I NDIGENOUS P EOPLES I NVENTIVE C APACITY IN E CONOMIC T HEORY 1 INTRODUCTION One of the greatest challenges to face globalization is biopiracy. In the past, biopiracy was part of colonization policies for conquering wasted lands and uncivilized people. The legal policy in the international law that supported European nations to conquer other continents and made subjects the natives was called res nullius theory. The res nullius theory supporting possession of new territories allowed Europeans to dispose Indigenous Peoples from their property, their social structure and their knowledge applied to their local biodiversity. Just recently, an international human rights movement that re-addressed colonization and Indigenous Peoples rights reviewed the importance to recognize Indigenous Peoples rights to tangible and intangible property. This preoccupation to protect Indigenous Peoples’ observations and practices associated to their local biodiversity has been of paramount importance to avoid biopiracy activities that divest Indigenous Peoples from their intangible rights. But some questions remain unanswered. Why Indigenous Peoples are subject to biopiracy again? Why globalization that benefits all consumers because it brings more competitiveness and good products at international level perverts Indigenous Peoples rights to their own knowledge? This article suggests some arguments to comprehend the reasons for biopiracy activities to occur at global level against Indigenous Peoples’ intangible property. This article argues that historical and economic thought played a role to ignore Indigenous Peoples’ rights to property (tangible and intangible) along with legal theories such as the res nullius theory. Therefore, competition globally among firms contributes to transfer Indigenous Peoples’ knowledge in an international network of companies, customers and economies. This article illustrates reasons for supporting that Indigenous Peoples’ property rights must be inserted in the economic cycle because of economic value of their labour and their inventive capacity. The first section examines a number of historical arguments to help understand to what degree certain individuals or classes have been excluded from property ownership. The attitude of dominant political classes excluding individuals from a determined social class to hold property affected Indigenous Peoples’ social status in the post colonization period. Then, Indigenous Peoples property rights were also excluded from legal and economic thought until recently. This article argues that if it is reasonable that Indigenous Peoples hold property on their ideas and know-how applied to their local environment through their activities, then intellectual property labour theory applies to them. The second section introduces how ideas became incorporated into economic activity, particularly labour, so that ideas started to become useful for the exchange of goods or other necessities among nations and individuals. Traditionally, ideas have been inconsistently protected through legal instruments, because of their intangibility. Amongst historical periods, the American Revolution marked an historical watershed, offering the opportunity to make property legally available to everyone, notably by providing constitutional protection. Subsequently, ideas could be protected as property due to the historical development in recognizing property, trade and labour as sources of wealth.
- 2. From Aristotle, Plato, Jean-Jacques Rousseau, John Locke, Adam Smith, David Ricardo and Karl Marx, there is enough evidence that good ideas for economic activities were a product of civilized people. John Kenneth Galbraith and Joseph Stiglitz address contemporary theories of political economy linked to intangible property protection and issues facing the intellectual property system. Although they do not mention Indigenous Peoples’ rights directly, they provide a platform to argue for their inclusion. Including Indigenous Peoples’ rights in the circle of wealth is paramount to stop biopiracy activities that curtail economic value from their labour. Thus, including Indigenous Peoples’ labour and inventive capacity allow them to have an advantage in the global market. Useful ideas on trade and commerce are connected to the economic value of labour that can foster good ideas for inventions. This article concludes showing that human labour is economically valuable regardless of social class or legal structure. The theories in economic and philosophical thought that ignored Indigenous Peoples’ contribution have embraced intangible rights for all individuals. Biopiracy activities occur because not all individuals are included in the economic cycle of wealth. (…) It is clear that, when referring to the savages, Rousseau did not recognize Indigenous Peoples’ labour. Although Rousseau did not support slavery, it seemed that Indigenous Peoples did not participate in the revolution of holding ownership. For Locke, an individual is the owner of his body and his labour from which group of individuals the Indigenous Peoples would be part of it. i Comparing Locke’s observations that Indigenous Peoples living together without the attitude to fence in a piece of land are “tenants in common” with Rousseau’s passage above, some conclusions are surprising. Locke seemed to be more progressive in social equality than Rousseau and being inclusive of Indigenous Peoples’ labour and freedom.ii That is an interesting dilemma proposed by comparing Rousseau and Locke – what are the Indigenous Peoples’ rights in Locke and Rousseau’s theories? Quite different and distinctive, nonetheless, Indigenous Peoples’ property is perceived as to be restricted to their own person.iii For Locke, the first to gather fruits regained individual property from communal property over natural resources.iv Having Rousseau’s observations in mind, Indigenous Peoples as first occupiers may have retained their property in the so-called “wasted and public lands”v as soon as they fenced in a part of the land. That did not occur in the same legal translation of fencing in a piece of land and defending against intruders as Europeans would be accustomed to.vi Indigenous Peoples attitude towards property was to wander around a determined area like tenants in common. At the time of colonization, the international policy of the conquest of new lands offered intense incentive to new settlers to populate the New World. The quest for gold and silver brought civilized Europeans to encounter new people unknown to them. Therefore, it could be suggested that the theory of wasted and public lands, on which the res nullius theoryvii has its foundations, was largely controversial and today is refuted by most historians with just merit.
- 3. Those first inhabitants were politically, economically and culturally dispossessed as soon as the first European discovered unoccupied and “wasted lands”.viii The jurisprudence supported by the terra nullius theory and more practical interests such as gold and natural resources possession, dispossessed Indigenous Peoples of their land rights as well as of any recognition of intellectual labour applied to their discoveries or labour-saving inventions. Therefore, theories on social equality failed to acknowledge property rights to Indigenous Peoples, although Locke demonstrated individual rights were vested in Indigenous Peoples. Then, in 1776, Adam Smith’s publication of An Inquiry into the Nature and Causes of the Wealth of the Nations, or in short title, The Wealth of Nations, addressed issues for intangible property particularly the division of labour and art to create wealth in society. (…) 1.1 Adam Smith and the early American colonies For the early American colonies, much of this division of labour was theoretical, if not non- existent. For many years in the American colonies, necessities had to be overcome by early Americans’ improvements (or adaptations) to the new life. The adaptation to a world where imports could cost the settlers dearly would have been less costly if improvisation and creativity were prized assets. That has also provided a fertile opportunity to early inventors from any occupation branch to contribute to labour-saving inventions.ix Another idea to consider further is that the new American settlers were dependent on English imports, so that creativity and ingenuity could contribute to the reduction of dependency on foreign products. The circumstance of non-inexistent division of labour permitted early Americans to claim political independence from monopolies of commerce due to their ingenuity in solving daily problems with their own resources. Before 1776, Smith suggested that England was confining American colonies to unfair monopolies, the consequences of which he forecast as “violation of the most sacred rights”: Forecasting the American Independence as well as the poisonous side of the monopolies of commerce in a mercantile era, Smith demonstrated that creativity could overcome the division of labour, if a particular talent to pursue one economic activity was not available. However, ingenuity in the sense of producing useful things was prohibited in some trades. Smith indicated that preceding the stage of inventiveness and creativity to transform menial labour into intellectual labour is the stage of barbarous societies. Smith’s comments that the stages in which natives engaged were limited to hunting and rudimentary husbandry when the New World was discovered may suggest that his recognition of intellectual labour amongst Indigenous Peoples did not exist. In this passage below, Smith indicates that the period of intellectual labour occurred before the civilization, so that creativity was present in the barbarous stage. However, Smith considered that the natives in the barbarous state of society were somehow inferior to the civilized man, like in this passage below:
- 4. (…) 2 KARL MARX AND PROPERTY (1818−1883) One can observe in Smith and Rousseau’s writings that there is an element of second-class uncivilized citizenry related to the first occupiers of the new potentially productive lands of America and the former colonies of Africa and Asia. That perception has not changed, even from the perspective of a revolutionary school of thought created by Karl Marx. His understanding of capitalism and its historical implications after the Industrial Revolution denounced social inequality in labour-work and in the role of the capitalism. Karl Marx may have agreed that Indigenous People were unproductive. Here, unproductive meant not being capable of producing economic value out of their practices and knowledge. In the passage below, Marx defined the common property of Indigenous People modus operandi, in which there is a trace of disregard for their creativity and intellectual labour to transform things into something useful for the economic cycle. For Marx, the communal property practiced by Indigenous Peoples and their division of labour in agriculture lacked freedom of labour and selling of labour, two characteristics of capitalism: (…) 2.1 Karl Marx and Indigenous Peoples − of property and economic activity In his seminal work, Das Kapital, Karl Marx approved and inserted botanist Joakim Frederik Schouwx observations of Asiatic Indigenous Peoples lack of economic structure in their society. Schouw found that Indigenous Peoples’ possessed inability to understand their social position in the economic chain of activities or to participate in the capitalism. For Marx, an element of being native or being Indigenous Peoples was to be outside of the whole economic chain. Marx observed that to exchange their leisure activities for economic and capitalist modus operandi is not part of their culture, as stated in the following passage: (…) For Marx, the collection of 50 lbs to 300 lbs of sago from trees transforms the human activity into human labour, however, commodity or economic value was absent from it. Then, why could it not be applied Locke’s theory of labour to Indigenous Peoples’ activities? Indeed, it is not a menial labour as Smith has introduced the term in the Inquiry, because the tree has to be ripe and be subject to the judgment by the native as a ripe tree, in order to him/her to collect sago. It is possible that they did exchange sago for something else if they found they would have had a sago surplus and needed another item in their daily routine. When Marx demonstrated the economic value of the “virgin state of soil” and that labour “filters” the raw material, he lacked understanding that the truth of post-Industrial Revolution social inequality for Indigenous Peoples’ labourers against non-Indigenous labourers were not considered economic or capable of commercialization. (…)
- 5. 3 JOSEPH STIGLITZ (B. 1943) 3.1 Classics never die: from Adam Smith’s old monopolies of trade to Joseph Stiglitz’s critique to the Uruguay Round The relationship of demand and incentive to invent has been part of the critique of globalized industries of our century. Some industries are defined as natural monopolies, because management by governments is desirable, as in the case of water.xi Then, monopoly of trade for innovative products can be translated as Galbraith’s innovation test of not what people need but what can be sold. Joseph Stiglitz in his book Globalization and its discontentsxii updated Galbraith’s test of innovation using the pharmaceutical industry as an illustration of monopoly of trade. The pharmaceutical industry is especially interesting to examine for its business practice of providing cure for sale and profit. Its nature (…) Biopiracy activities are linked directly on globalization activities from multinationals. Stiglitz comments towards traditional medicines and foods are connected to the Indigenous Peoples’ knowledge, namely Traditional Knowledge. The patent strategy used by international companies generally have non-Indigenous Peoples employees, skilled in science and trained to identify valuable intangible assets, which makes them able to forecast the economical value of what has been supplied to them as information. Thus the Indigenous Peoples, holders of the insightful information called Traditional Knowledge, do not realize they are enlarging the private property of international companies when they share their information on traditional medicines or foods with outsiders to their social system. i ii See, supra note 29 and accompanying text. iii See supra note 29. iv v vi . vii viii ix x