Abstract
The book seeks an appropriate understanding of how Intellectual Property Rights (IPRs) in ‘biotechnological innovation’ is deployed in the Indian Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act to the detriment of marginal farming communities, as also to the stated ambition of law itself. This is an examination of the nature and technique of rights in liberal government through an account of the conceptualisation and recognition of ‘bio-cultural entitlements’—the cluster of farmers’ benefits, privileges and rights deployed in the PPVFR Act. The book identifies and lays out the political terrain in which the various strands of these biocultural entitlements are brought together towards understanding its nature and contours of its boundaries. It seeks to demonstrate how the deployment of this cluster of biocultural entitlements does not serve its professed small farmer constituencies, and points towards a lag between stated ambition and practice. Chandra’s aim is ‘to understand the work of rights within the Intellectual property rights discourse in biotechnological innovation and to understand how and why indigenous and small farmer communities come to relinquish their immediate and invisible powers that tradition and occupancy has granted them’ (p. 198). Through a discourse analysis, she brings together an impressive array of scholarship, and covers a broad terrain, including political theory, science, technology and society scholarship as well as legal theory. In her interrogation of liberal regulation as a technology of governance, she focuses on the role of rights as a mode of instituting a culture of rhetoric, which separates benefits and outcomes from their original stated ambitions, and making it a specific site for epistemic and cultural domination of the modern over the marginal.
Through its two parts, the book focuses on the normative geographies of injustice in the contemporary prospecting of plant genetic resources, made possible by the technologies of biocultural entitlement in the PPVFR Act. In its first part titled ‘The Making of Biotic Property’, Chandra seeks to understand the conceptual, philosophical and juridical innovations that frame intellectual property law. This discourse analysis about the story of creation of biocultural property spans three chapters. The first chapter uses the (by now) familiar idiom of co-production to describe the mutually constitutive role of technology and law in the creation of intellectual property in biogenetic resources. The second chapter focuses on two specific moves within intellectual property law that are seen as critical to the innovation discourse: ‘the disavowal and a radical reconstruction of the product of nature doctrine and the patent exhaustion doctrine’ (p. 35). She charts the blurring of the distinction between the legal terms of ‘innovation’ and ‘discovery’, generally considered central to the logic of intellectual property law. The third chapter seeks to identify the authority that law derives for itself in the inversion that formalises the reach of intellectual property law in biological property, and suggests that claiming a moral narrative and adopting an ethical stance through the appropriation and inversion of the moral economy of commons framework is key for IP law’s move to commoditise seeds and agricultural knowledge. In the second part titled ‘The Jurisdiction of Rights’, Chandra examines the three biocultural entitlements specified in PPVFR Act, namely, access and benefits sharing, farmers’ privileges and farmers’ rights, in three separate and respective chapters to see how the logic claimed in the biocultural innovation discourse, identified in the first part, is performed in the law.
In her seven chapters, Chandra devotes considerable attention to the manner in which the category of biocultural property is constructed in law, and how attendant rights for marginal farmers are framed within the discourse of property and innovation. She focuses on ‘the narratives that drive the IPR regime, the discourses that sustain and legitimize it, and the practices into which such discourses devolve’. Through a critique of how the category of biocultural entitlements is brought into the fold of law—both as a conceptual category and as a practical framework—she dwells on the lag between the ideational conception of such rights and their juridified, institutionalised forms and practices. Chandra is intrigued by the ‘perverse disjuncture of two theatres—of legal entitlement and of extreme existential marginality’ (p. ix). She points to the irony of India as one of the first governments in the world to legislate on farmers’ rights through the PPVFR Act in 2001, specifically with a stated intention to protect the small farmer, her rights and her threatened livelihood in the face of growing global integration in a post-TRIPS world of agriculture, while the official statistics of farmer suicides stood ‘at an annual average of 17,992 in the twelve years between 2001 and 2012’ (p. xvii). That such loss of life is predominantly taking place in relatively affluent provinces, ‘with high growth rates and longer periods of economic development—Maharashtra, Andhra Pradesh, Punjab and Karnataka’ (p. xviii), only makes this disjuncture more intriguing. It is to explore this disjuncture that Chandra endeavours an understanding of how these biocultural entitlements get framed within and by law, within social, cultural and biological life:
the discursive, conceptual, and the jurisdictional categories that frame these rights; the specific theoretical and practical stakes that organize this field; the forms of capital which the bearers of these rights acquires; and the manner in which such rights bring about cognitive and political integration of relatively secluded spaces into global networks of claim making. (p. xix)
It is at this specific site of disjuncture that Chandra employs the cunning thesis, famously used as a ‘sly civility’ by the cultural theorist Homi Bhabha in the context of the discursive doubleness in colonial governmentality (Bhabha, 1994, pp. 94, 96); also invoked more recently by the sociologist Shalini Randheria in the context of the strategic redistribution of responsibility and reduction of obligations by emerging states like India to be selectively strong in areas privileging the interests of national elites, while also being abysmally weak in fulfilling certain constitutional obligations of marginal groups within its territories (Randeria, 2003, 2007). In such an employment, Chandra seeks to unveil the cunning in the contemporary rights discourse by focusing on the nature of rights that are framed at the nexus of biology and culture in biocultural entitlements, in the context of seeking to ‘protect biotechnological innovation’ and prospecting of plant genetic resources. She seeks to build on the current orthodoxies in STS literature, ‘of social constructionism and the permeable boundaries of the nature-culture divide…to analyse epistemic hierarchies and corresponding cultures of entitlements that get installed in legal regimes of IP that get implicated in the politics of biogenetic resources’ (p. xxv) in the first part of the book. Her analysis of the two-faced nature of biocultural entitlements suggests a movement from a denial of rights to subordination through inclusion:
[o]n the one hand, the technologist or the innovator needs to establish his entitlement that translates, first into a qualified freedom to use biogenetic commons, and second, into a right over that which he innovates (sic). This requires establishing a position of superiority and a rule of difference: rules that separate an innovator’s epistemic (scientific) claims from those of the indigene who is deemed to produce only lay, folk, unscientific knowledge. On the other hand, the indigene too needs a rule of difference: rules that safeguard his cultural identify and assign him a co-equal space within the rights assemblage (sic). Both these impulses are contradictory, and once deployed concurrently—as in the IP assemblage—rights simultaneously enact both universality and particularity, difference and similarity, power and norms. It is in this sense that biocultural entitlements can be said to have two faces. But, the cunning and the two-facedness lie in privileging a particular rule of difference, one that institutionalises the epistemic superiority of the technological innovator…as strong proprietary claims, while discursive delimitation of the other into a weak range of entitlements. (pp. xxvi–xxviii) (emphases supplied)
It would have been edifying to hear more about Chandra’s take on a central issue that many close examinations of law and justice encounter, namely, ‘how do we respond in the face of systemic injustice being legitimated by the presence or invocation of instruments that is claimed to be furthering justice, like rights’; do we respond by saying that the whole terrain of rights is not useful and look for an alternate geography of juridical language or talk about the impossibility of law to be just, or to attempt alternate approaches to the language of rights. The need for this engagement becomes even more urgent in the wake of such cunning so aptly demonstrated in Chandra’s meticulous work.
In the identification of the ‘cunning’ in biocultural entitlements, Chandra employs the co-production thesis and challenges the normative ascriptions of universality and objectivity in traditional pictures of modern science. She unveils two mutually reflexive moves, namely, the technological and the legal, which underwrite each other’s existence:
[t]he first move is a technological one—that enabled the reification of the subcellular structure of plants into distinct commodities with distinct properties. The second move allows this to be commoditized and claimed as a product of human invention, as IP. The legal cultural resources, with which biotechnologists bring biogenetic artefacts into view, often pre-exist the ‘discovery’ of the objects themselves. As techniques of molecular biology become central to research and development efforts in biologically related fields, law serves to institutionalise the emergent economic space and devise property rules that facilitate the entry of organic, biological things in the taxonomic precincts of property. Law claims these newer forms, classifies them as biotechnological inventions, rescinds its commitment to doctrinal norms, and grants protection as patents or breeders rights. While technology creates new artefacts that can be claimed as property, law in a joint enterprise with biotechnology co-produces the reification of biological property as IP.
Thus, she insists ‘how science and technology projects are as socially contingent and ideologically infused as other cultural practices…“Standard” property claims over seeds do not prevent the neighbour from propagating the same breed of seeds; IP claims do’ (p. 44).
The elasticity of her descriptional frame regarding ‘the making of biotic property’ allows weaving of various traditions of STS scholarship together. It is significant that some of these traditions have significantly different ontological claims about science, nature and technical knowledge. For instance, the different frameworks employed by Latour, Jasanoff, Foucault and Deleuze are all accommodated in a way that may be intriguing for students of social theory. The book brings forth an important tension about the ontology of scientific truth, a recognition of scientific truth claims as not natural but politically produced. This, however, leads to certain internal inconsistencies within the book, for instance where the unacceptability of IPRs for plant varieties on the ground that it is patenting nature/life become less credible in the proximities of ontologies where biological sciences itself is recognised as a product of social (scientists’) work, and not natural. However, this elasticity that makes the accommodation of a plethora of frames with competing ontological claims about science and technology around us itself is a promising one, ripe with intriguing possibilities on further theorisation. This book adds valuable insights to understand the relationship among law, techno-science and claims about justice in the contemporary world.