What Crows Know

No one in this debate honestly wishes to abandon IP as a legal construct. What the international legal community has called the 'biotechnology versus biodiversity' debate can be reduced to an almost purely abstract jurisprudential struggle over the appropriate conceptualization of the valuable inputs needed to facilitate the commercialization of biotechnology. Generally speaking, property responds to scarcity, which in turn stems from competing uses for a single object (Demsetz, 1967). Crows know: because property rules are expensive to create and maintain, 'crows dispense with their normal territoriality when food is plentiful' (Rose, 1998, p. 134). Even John Locke, who is credited with inventing the 'sweat of the brow' theory of property, accepted the corvid critique of property: 'Whatsoever, then, he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with it, and joined to it something that is his own, and thereby makes it his Property' (Locke, 1960, p. 329). Although the Lockean instinct to treat IP as a reward for hard work has served as a legal leitmotif (Ruckelshaus v Monsanto Co., 1984; Mazer v Stein 1954, p. 219: 'Sacrificial days devoted to . . . creative activities deserve rewards commensurate with the services rendered'; International News Service v Associated Press, 1918, pp. 239-240, condemning the 'taking [of ] material that has been acquired by [a competitor] as the result of organization and the expenditure of labor, skill, and money' in so far as the alleged infringer 'endeavor[ed] to reap where it has not sown' and thereby 'appropriated] to itself the harvest of those who have sown'; Gordon, 1992), neither Locke nor the contemporary legal institutions treat hard work alone as a sufficient basis for IP. Rather, Locke admitted that overwhelming abundance, if placed 'in the middle of the in-land parts of' a remote continent, with 'no hopes of Commerce with other Parts of the World', would not be worth enclosing (Locke, 1960, p. 343). For its part, the Supreme Court has authoritatively repudiated the

'sweat of the brow' as a basis for copyright protection (Wheaton v Peters, 1834; Feist Publications, Inc. v Rural Telephone Service Co., Inc., 1991).

The points of agreement between Lockean philosophy and the Supreme Court jurisprudence comprise a manageable set of simple principles. Property rules should be set aside when wealth abounds or rival uses have not yet emerged. Before contact with the outside world, traditional societies had no occasion to erect costly property rules. In the debate over biodiversity and biotechnology, advocates for the South argue that the developing world should not be punished for its failure to establish a property regime that would satisfy Northern legal and cultural standards. The rational (if not altogether sympathetic) response to the South's retrospective plea lies in emphasizing the prospective impact of tightening property law's conceptual grip on the world of biotechnology. Sunk costs are just that - sunk. Historical accidents have no relevance to forward-looking business decisions that weigh nothing more than the current value of information and the balance between current prices and costs (Pindyck and Rubinfeld, 1992, p. 199; Alenco Communications, Inc. v FCC, 2000; Lehman and Weisman, 2000, observing that sunk costs 'are usually visible', but arguing nevertheless that 'they should always be ignored when making economic decisions'). The economic imperative to look forward - i.e. the dismal scientist's mandate to ignore history - is 'particularly significant in industries . . . which depend heavily on technological innovation' (MCICommunications Corp. v American Tel. & Tel. Corp., 1983, pp. 1116-1117).

In light of the economic stakes, let alone the ecological and evolutionary consequences of bad decisions regarding biodiversity conservation, we have enormously elevated incentives to resolve these issues properly. Innovation is a slippery phenomenon, one that 'is intangible, uncertain, unmeasurable, and often even unobservable, even in retrospect' (Rapp, 1995, p. 27). Yet the wealth of nations, gene donors and recipients alike hangs in the balance. 'The static gains and losses from regulation and other similar policy choices are probably small compared to the historical gains in welfare resulting from innovation and productivity growth' (Joskow and Rose, 1989, p. 1484). The literature on commercial bioprospecting and its relationship with biodiversity conservation has fallen into a very common and treacherous trap; like their counterparts throughout the academy, scholars writing on this topic rarely 'give adequate attention to considerations of dynamic efficiency' (Chang, 199 7, p. 721). Most writers stress, albeit in varying degrees, how important it is to compensate the gene donor communities of the global South and how bioprospecting promises to deliver the income streams that will be needed to restore a measure of historical justice to traditional communities whose genetic wealth and accumulated knowledge have enriched the world at large. However, the literature falls short in analysing the potential impact of introducing a novel form of IP and thereby redirecting the flow of information - genes and memes - that thus far has dictated the course of biotechnological innovation.

It is not abundance but scarcity that defines today's biodiversity crisis. The scarcity at issue is twofold. First, the global interest in biodiversity conservation often conflicts with local subsistence, which requires immediate and often non-sustainable consumption of resources. Second, because the genes and the ethnobiological lore at issue have the characteristics of public goods, any value in them is effectively extinguished upon first use. In many instances, value evaporates almost as quickly as it becomes apparent. On many occasions researchers operating under Western notions of 'informed consent' have extracted ethnobiological knowledge and even human tissues from 'illiterate Third World villagers with l ittle knowledge about modern medicine' (Ragavan, 2002, pp. 10, 360). Although outsiders usually place a higher value on the uses of these items and the non-uses of biodiversity in general, efforts to compensate source countries and peoples can be frustrated by the ease with which the value of biodiversity in its most beneficial uses can be dissipated.

Ironically enough, both sides in this debate fetishize property as the foundation of a capitalist economy (Kennedy, 1985; Ely, 1992). This shared attraction to property as an organizing jurisprudential principle suggests at a minimum that both sides have conceded the triumph of markets over central planning in the economic realm and have moved on to disputes over the political terms by which global society should be governed. But this consensus also demonstrates that both sides understand the biosphere and its bounty as scarce, depletable and increasingly unrecoverable. Smart crows would do no less; they calibrate proprietary arrangements and other rules for social governance as the occasion demands. If anything, both the global North and the global South have underestimated not only the precariousness of the natural world, but also the resiliency of human innovation.

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