Authors: Jeremy Rifkin
Community after community began to fall victim to the terrifying toll exacted by the decline in environmental resources and the devastating impact that real-time climate change was beginning to have on local agricultural productivity and infrastructure, threatening the very survival of their communities. Lacking effective government responses and at the mercy of a global corporate machine that was unaccountable to local communities, civil society organizations and local businesses saw in the commons a third model of governance they could begin to depend on to recapture their economic balance.
Finally, a new genre of technologies emerged in the last quarter of the twentieth century that opened up vast new economic veins and claims, igniting a global debate on how much of Earth’s remaining endowment could and should be allowed to be enclosed and privatized or put into public trusts. This time, the push for enclosure penetrated to the very core building blocks that comprise Earth.
The biotechnology industry sought to patent the genes that make up the blueprints for all of life. The telecommunications industry pushed for a selloff of the electromagnetic spectrum to the private sector, giving it exclusive control of the radio frequencies over which much of the communication and information of society is channeled. And now, the nanotechnology industry is seeking patents on processes for manipulating the physical world at the atomic level.
How I Discovered the Commons
My first introduction to the new high-tech enclosures came in 1979. Ananda Chakrabarty, a microbiologist employed by General Electric, applied to the U.S. Patents and Trademark Office (PTO) for a patent on a genetically engineered microorganism designed to consume oil spills on the oceans.
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The PTO turned down Chakrabarty’s claim, arguing that living things are not patentable under U.S. law—with the exception of asexually reproduced plants, which had been granted a special patent protection by an act of Congress.
Chakrabarty’s case made its way to the U.S. Supreme Court. This is where I jumped in, through a nonprofit organization, the People’s Business Commission (shortly thereafter renamed the Foundation on Economic Trends). Our organization filed the main
amicus curiae
brief on behalf of the PTO. We argued—along with the PTO—that genes are not inventions but merely discoveries of nature, even if sequestered, purified, isolated, and identified by use and function. After all, the chemists were never allowed to patent the chemical elements in the periodic table, even though they too argued that by the sheer act of isolating, purifying, and identifying the
functional qualities, the elements were more inventions than discoveries. The PTO, nonetheless, refused to grant any patents on the basic chemical elements.
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In our brief, prepared by my colleague Ted Howard, we warned that if patents were granted, the floodgates would be opened to the patenting of all the genetic building blocks that make up the evolutionary schema of biological species. Giving private enterprises ownership of the genetic code would enclose the most precious resource of all—life itself—reducing it to a mere commodity for exploitation, sale, and profit in the marketplace.
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I sat in the Supreme Court chamber along with a smattering of corporate lobbyists, listening to the oral arguments and thinking to myself that the potential enclosure of the Earth’s gene pool was a momentous turning point for the human race, destined to affect our species and our fellow creatures far into the future.
The court, by a slim 5-to-4 margin, awarded the patent on the first genetically engineered organism. Chief Justice Warren Burger specifically referred to the arguments in our amicus brief as “the gruesome parade of horribles” and argued that we were wrong in believing that this decision would transfer the genetic inheritance of Earth to private enterprise, with innumerable consequences for society.
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Within months of the Supreme Court decision, Genentech, the first biotech company, went public in 1980 offering a million shares of stock at $35 per share. The share price quickly jumped to $88 within the first hour on the market. By the end of the day, Genentech had raised $35 million in “one of the largest stock run ups ever” and had not yet produced a single product for sale.
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Agribusiness, the pharmaceutical industry, chemical companies, and biotech start-up companies joined the race, determined to lay claim to the genetic code.
Seven years later, “the parade of horribles” we had warned of materialized. In 1987, the PTO reversed its long-standing position that life was not patentable, ruling that all genetically engineered, multicellular living organisms, including animals, are potentially patentable. The commissioner of patents and trademarks, Donald J. Quigg, in an effort to quell a public outcry, made it clear that human beings were excluded, only because the Thirteenth Amendment to the Constitution forbids human slavery.
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Nonetheless, genetically altered human embryos, as well as human genes, cell lines, tissues, and organs, are potentially patentable, leaving open the option of patenting all the parts of the whole human being.
In the years since, Life Science companies have fanned out across the world, “bioprospecting” in every corner of the planet for rare and valuable genes and cell lines—including genes from indigenous human populations—that could be of potential commercial value in fields ranging from agriculture to pharmaceuticals and medicine, quickly securing patent protection on every “discovery.” The Foundation on Economic Trends (FOET) has spent
the better part of the past 32 years fighting the enclosures, in patent offices, courtrooms, and legislative chambers.
In 1995, FOET assembled a coalition of more than 200 U.S. religious leaders, including the titular heads of virtually all the major Protestant denominations, Catholic bishops, and Jewish, Muslim, Buddhist, and Hindu leaders, to voice their opposition to the granting of patents on animal and human genes, organs, tissues, and organisms. It was the largest coalition of American religious leaders to come together on any issue in the twentieth century—but to little avail.
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Years earlier—around the mid-1980s—I began to realize that opposing patents on life in a capitalist system whose laws and government regulatory oversight were all conditioned to encourage the commercial enclosure of Earth’s commons was a futile exercise. If both government and the private sector were in lock step, what other institutional avenue might be available for stewarding Earth’s biology and, for that matter, the rest of the planet’s resources? The search led me to a rediscover the commons.
I found small bits of information on commons, mostly in esoteric anthropological studies and even less in formal histories. For the most part, the history of the commons was relegated to a few paragraphs in textbooks on the feudal economy of England. As I continued to explore, however, I began to find more stories about commons in various parts of the world, almost all of them devoted to feudal economic arrangements. It dawned on me that “the Commons” was potentially a much broader metaphor that applied to far more diverse phenomena, so I set out to write a book on the history of the commons and enclosures starting with the feudal enclosures of agricultural lands in Europe. I then proceeded to the enclosure of the ocean Commons, in the age of exploration and discovery in the sixteenth century; the enclosure of the knowledge Commons with the introduction of intellectual property in the form of patents, copyrights, and trademarks in the late eighteenth century; the enclosure of the electromagnetic-spectrum Commons in the early twentieth century with the licensing of radio bands to private enterprises; and finally the enclosure of the genetic Commons in the later part of the century with the conferring of patents on genes.
By framing the historical narrative in terms of commons and enclosures, I discovered a more compelling account of the human journey over the past half millennium of history. I published my findings in a book titled
Biosphere Politics
in 1991. In the book, I urged a reopening of the global Commons and suggested that a rethinking of the Commons model for the twenty-first century might be a rallying point for bringing together diverse interests from disparate fields into a common cause.
In 2002, FOET put theory into practice, bringing together 250 organizations from 50 countries at the World Social Forum in Porto Alegre, Brazil, in support of a Treaty to Share the Genetic Commons. The organizations included farm associations, women’s groups, fair-trade advocates,
biotech activists, organic food associations, religious groups, environmental organizations, and hunger and emergency-aid organizations. The preamble to the proposed treaty declared the genetic heritage of Earth to be a shared Commons, held in trust by the human race on behalf of our species and our fellow creatures. It reads:
We proclaim these truths to be universal and indivisible;
That the intrinsic value of the Earth’s gene pool, in all of its biological forms and manifestations, precedes its utility and commercial value, and therefore must be respected and safeguarded by all political, commercial and social institutions,
That the Earth’s gene pool, in all of its biological forms and manifestations, exists in nature and, therefore, must not be claimed as intellectual property even if purified and synthesized in the laboratory,
That the global gene pool, in all of its biological forms and manifestations, is a shared legacy and, therefore, a collective responsibility,
And,
Whereas, our increasing knowledge of biology confers a special obligation to serve as a steward on behalf of the preservation and well being of our species as well as all of our other fellow creatures,
Therefore, the nations of the world declare the Earth’s gene pool, in all of its biological forms and manifestations, to be a global commons, to be protected and nurtured by all peoples and further declare that genes and the products they code for, in their natural, purified or synthesized form as well as chromosomes, cells, tissue, organs and organisms, including cloned, transgenic and chimeric organisms, will not be allowed to be claimed as commercially negotiable genetic information or intellectual property by governments, commercial enterprises, other institutions or individuals.
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In the years since, a number of associations and organizations have been established to both manage a global genetic Commons and prevent its further enclosure.
The Global Crop Diversity Trust, an independent nonprofit association founded by Cary Fowler, works with research institutions, germplasm preservation groups, farm associations, independent plant breeders, and other agricultural interests to preserve the world’s dwindling plant genetic resources. As part of its mission, the trust has erected an underground vault deep beneath the ice in the small island of Svalbard, Norway, high up in the Arctic, in one of the most remote regions of the world. The maze of tunnels inside the air-conditioned, sealed vault houses thousands of rare seeds from around the world for potential use by future generations. The vault is designed as a fail-safe depository that can store up to 3 million seed varieties used in agriculture to ensure their safekeeping in a world of wars and increasing human-induced catastrophes. The trust operates
as a self-managed Commons on a global scale. Its network of thousands of scientists and plant breeders is continually searching for heirloom and wild seeds, growing them out to increase seed stock, and ferrying samples to the vault for long-term storage.
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In 2010, the trust launched a global program to locate, catalog, and preserve the wild relatives of the 22 major food crops humanity relies on for survival.
The intensification of genetic-Commons advocacy comes at a time when new IT and computing technology is speeding up genetic research. The new field of bioinformatics has fundamentally altered the nature of biological research just as IT, computing, and Internet technology did in the fields of renewable-energy generation and 3D printing. According to research compiled by the National Human Genome Research Institute, gene-sequencing costs are plummeting at a rate that exceeds the exponential curves of Moore’s Law in computing power.
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Dr. David Altshuler, deputy director of the Broad Institute of Harvard University and the Massachusetts Institute of Technology, observes that in just the past several years, the price of genetic sequencing has dropped a million fold.
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Consider that the cost of reading one million base pairs of DNA—the human genome contains around three billion pairs—has plunged from $100,000 to just six cents.
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This suggests that the marginal cost of some genetic research will approach zero in the not-too-distant future, making valuable biological data available for free, just like information on the Internet.
Gene sequencing and other new biotechnologies are putting us on the road to the democratization of research.
Washington Post
science reporter Ariana Eunjung Cha observes that
[a] generation ago, the process of manipulating an organism’s genes required millions of dollars in sophisticated equipment and years of trial and error.
Now, it can be done in a garage with second-hand parts ordered off the Internet in a few days.
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Biological research and the accompanying expertise, which just two decades ago were available to only an elite group of scientists working for governments or in industry, are now within reach of thousands of university students and hobbyists. Worried that global Life Science companies are quickly maneuvering to convert the biological information of the planet into intellectual property, environmentalists are pushing hard to prevent what they regard as the ultimate Enclosure Movement. Their efforts are gaining traction among a younger generation of researchers who grew up with the Internet and regard the open sharing of genetic information as a right, no less important than the right to freely access other information.