Vandana Shiva on the Contemporary Enclosure of the Commons through IPR
Text by by Vandana Shiva.
For indigenous communities, biodiversity has always been a local, commonly shared resource on which they have been dependent for their livelihood. The current moves in many countries of the South to introduce new intellectual property laws under the GATT/WTO agreements to, in effect, 'enclose' these 'commons' and bring them under a regime of private property and patents for the benefit of corporations, are a grave threat to their very survival.
"THE 'enclosure' of biodiversity and knowledge is the final step in a series of enclosures that began with the rise of colonialism. Land and forests were the first resources to be 'enclosed' and converted from commons to commodities. Later on, water resources were 'enclosed' through dams, groundwater mining and privatisation schemes. Now it is the turn of biodiversity and knowledge to be 'enclosed' through intellectual property rights (IPRs).
The destruction of commons was essential for the industrial revolution, to provide a supply of natural resources for raw material to industry. A life-support system can be shared, it cannot be owned as private property or exploited for private profit. The commons, therefore, had to be privatised, and people's sustenance base in these commons had to be appropriated, to feed the engine of industrial progress and capital accumulation.
The enclosure of the commons has been called the revolution of the rich against the poor. However, enclosures are not just a historical episode that occurred in 16th century in England. The enclosure of the commons can be a guiding metaphor for understanding conflicts being generated by the expansion of IPR systems to biodiversity.
The policy of deforestation and the enclosure of commons which started in England, was later replicated in the colonies in India. The first Indian Forest Act was passed in 1865 by the Supreme Legislative Council, which authorised the government to declare forests and wastelands ('benap' or unmeasured lands) as reserved forests. The introduction of this legislation marks the beginning of what is called the 'scientific management' of forests; it amounted basically to the formalisation of the erosion both of forests and of the rights of local people to forest produce. Though the forests were converted into state property, forest reservation was in fact an enclosure because it converted a common resource into a commercial one. The state merely mediated in the privatisation.
In the colonial period peasants were forced to grow indigo instead of food, salt was taxed to provide revenues for the British military, and meanwhile, forests were being enclosed to transform them into state monopolies for commercial exploitation. In the rural areas, the effects on the peasants were the gradual erosion of usufruct rights (nistar rights) of access, of food, fuel, and livestock grazing from the community's common lands. The marginalisation of peasant communities' rights over their forests, sacred groves and 'wastelands' has been the prime cause of their impoverishment.
Biodiversity has always been a local commonly owned and utilised resource for indigenous communities. A resource is common property when social systems exist to use it on the principles of justice and sustainability. This involves a combination of rights and responsibilities among users, a combination of utilisation and conservation, a sense of co-production with nature and sharing them among members of diverse communities. They do not view their heritage in terms of property at all, i.e. a good which has an owner and is used for the purpose of extracting economic benefits, but instead they view it in terms of possessing community and individual responsibility. For indigenous peoples, heritage is a bundle of relationships rather than a bundle of economic rights. That is the reason no concept of 'private property' exists among the communities for common resources.
Within indigenous communities, despite some innovations being first introduced by individuals, innovation is seen as a social and collective phenomena and results of innovation are freely available to anyone who wants to use them. Consequently, not only the biodiversity but its utilisation have also been in the commons, being freely exchanged both within and between communities. Common resource knowledge based innovations have been passed on over centuries to new generations and adopted for newer uses, and these innovations have over time been absorbed into the common pool of knowledge about that resource. This common pool of knowledge has contributed immeasurably to the vast agricultural and medicinal plant diversity that exists today. Thus, the concept of individual 'property' rights to either the resource or to knowledge remain alien to the local community. This undoubtedly exacerbates the usurpation of the knowledge of indigenous people with serious consequences for them and for biodiversity conservation.
The Western bias in defining property rights
Today we have to look beyond the state and the market place to protect the rights of the two-thirds majority of India - the rural communities . Empowering the community with rights would enable the recovery of commons again. Commons are resources shaped, managed and utilised through community control. In the commons, no one can be excluded. The commons cannot be monopolised by the economically powerful citizen or corporation, or by the politically powerful state.
Commons and communities are beyond both the market and the state. They are governed by self-determined norms, and are self managed. In the 'colonial' and 'development' era, the commons were enclosed and community power undermined by takeover by the state. Thus, water and forests were made state property, leading to the alienation of local communities, and the destruction of the resource base. Poverty, ecological destruction and social disintegration and political disempowerment have been the result of such state-driven 'enclosures'.
In the globalisation era, the commons are being enclosed and the power of communities is being undermined by a corporate enclosure in which life itself is being transformed into the private property of corporations. The corporate enclosure is happening in two ways. Firstly, IPR systems are allowing the 'enclosure' of biodiversity and knowledge, thus eroding the commons and the community. Secondly, the corporation is being treated as the only form of association with legal personality.
IPRs are the equivalent of the letters patent that the colonisers have used since 1492, when Colombus set precedence in treating the licence to conquer non-European peoples as a natural right of European men. The land titles issued by the Pope through European kings and queens were the first patents. Charters and patents issued to merchant adventurers were authorisations to 'discover, find, search out and view such remote heathen and barbarous lands, countries and territories not actually possessed of any Christian prince or people'. The colonisers' freedom was built on the slavery and subjugation of the people with original rights to the land. This violent takeover was rendered 'natural' by defining the colonised people into nature, thus denying them their humanity and freedom.
Locke's treatise on property effectively legitimised this same process of theft and robbery during the enclosure movement in Europe. Locke clearly articulates capitalism's freedom to build on the freedom to steal; he states that property is created by removing resources from nature through mixing with labour in its 'spiritual' form as manifested in the control of capital. According to Locke, only capital can add value to appropriated nature, and hence only those who own the capital have the natural right to own natural resources; a right that supersedes the common rights of others with prior claims. Capital is thus, defined as a source of freedom, but this freedom is based on the denial of freedom to the land, forests, rivers and biodiversity that capital claims as its own. Because property obtained through privatisation of commons is equated with freedom, those commoners laying claim to it are perceived to be depriving the owners of capital of freedom. Thus, peasants and tribals who demand the return of their rights and access to resources are regarded as thieves and saboteurs.
The takeover of territories and land in the past, and the takeover of biodiversity and indigenous knowledge now has been based on 'emptying' land and biodiversity of all relationships to indigenous people.
All sustainable cultures, in their diversity, have viewed the earth as terra mater (mother earth). The colonial construct of the passivity of the earth and the consequent creation of the colonial category of land as terra nullius (nobody's land), served two purposes: it denied the existence and prior rights of original inhabitants and negated the regenerative capacity and life processes of the earth.
In Australia, the concept of terra nullius (literally meaning 'empty land') was used to justify the appropriation of land and its natural resources, by declaring the entire continent of Australia uninhabited. This declaration enabled the colonisers to privatise the commons relatively easily, because as far as they were concerned, there were no commons existing in the first place!
The decimation of indigenous peoples everywhere was justified morally on the grounds that they were not really human; and that they were part of the fauna. As Pilger has observed, the Encyclopedia Britannica appeared to be in no doubt about this in the context of Australia: 'Man in Australia is an animal of prey. More ferocious than the lynx, the leopard, or the hyena, he devours his own people.' In another Australian textbook, Triumph in the Tropics, Australian aborigines were equated with their half-wild dogs. Being animals, the original Australians and Americans, the Africans and Asians possessed no rights as human beings. Their lands could be usurped as terra nullius - lands empty of people, 'vacant', 'waste', and 'unused'. The morality of the missions justified the military takeover of resources all over the world to serve imperial markets. European men were thus able to describe their invasions as 'discoveries', piracy and theft as 'trade', and extermination and enslavement as their 'civilising mission'.
Whether it is the gradual privatisation and divisibility of community held rights or the declaration of terra nullius, the transformation of common property rights into private property rights, implies the exclusion of the right to survival for large sections of society. The realisation that under conditions of limited availability, uncontrolled exploitation of natural resources involves taking away resources from those who need them for survival, has been an underlying element of Indian philosophy. Prudent and restrained use of resources has been viewed as an essential element of social justice.
According to an ancient Indian text, the Ishopanishad:
'A selfish man over utilising the resources of nature to satisfy his own ever increasing needs is nothing but a thief because using resources beyond one's needs would result in the utilisation of resources over which others have a right.'
This relationship between restraint in resource use and social justice was also the core element of Mahatma Gandhi's political philosophy. In his view:
'The earth provides enough for everyone's need, but not for everyone's greed.'
The eurocentric concept of property views only capital investment as investment, and hence treats returns on capital investment as the only right that needs protection. Non-Western indigenous communities and cultures recognise that investment can also be of labour or of care and nurturance. Rights in such cultural systems protect investments beyond capital. They protect the culture of conservation and the culture of caring and sharing.
There are major differences between ownership of resources shaped in Europe during the enclosures movement and during colonial takeover, and 'ownership' as it has been practised by tribals and farmers throughout history across diverse societies. The former is based on ownership as private property, based on concepts of returns on investment for profits. The latter is based on entitlements through usufruct rights, based on concepts of return on labour to provide for ourselves, our children, our families, our communities. Usufruct rights can be privately held or held in common. When held in common, they define common property.
Equity is built into usufruct rights since ownership is based on returns on labour. The poor have survived in India in spite of having no access to capital because they have had guaranteed access to the resource base needed for sustenance - common pastures, water, and biodiversity. Sustainability and justice is built into usufructuary rights since there are physical limits on how much one can labour and hence there are limits on returns on investment of labour and return on investment. Inequity is built into private property based on ownership of capital since there is no limit on how much capital one can own and control and invest.
IPRs as an extension of the eurocentric concept of property to biodiversity and biodiversity-related knowledge
The culturally biased and narrow notions of rights and property that have shaped IPRs are inadequate and inappropriate for indigenous cultures and for the objective of conserving biodiversity and cultural diversity. Through IPRs and TRIPs a particular eurocentric culture has been universalised and globalised. When applied to biodiversity, such narrow concepts of rights become mechanisms for denying the intrinsic worth of diverse species, and denying the prior rights and prior innovations of indigenous communities.
The thrust of the Western IPR regimes in the area of biodiversity is diametrically opposed to indigenous knowledge systems. Knowledge is considered to be the produce of individual creativity, based on Western scientific thought and systems of knowledge creation and gathering whereby the resource base is merely viewed as 'raw material'. In this paradigm IPRs represent the property rights to the products of mind, thereby resulting in knowledge and creativity being so narrowly defined that the creativity of nature and non-Western knowledge systems have been ignored.
The two categories of IPRs that have a direct impact on the erosion of prior rights of communities are patents and plant breeders' rights. Plant breeders' rights negate the contribution of Third World farmers as breeders and hence undermine farmers' rights. Patents allow the usurpation of indigenous knowledge as a Western invention through minor tinkering or trivial translation.
The Union for the Protection of New Varieties of Plant (UPOV) Convention represents a Western-devised (therefore internationally 'acceptable') form of plant variety protection, other than patenting.
A frequent comment heard in scientific and lay circles, is that 'we should patent all our traditional knowledge and biodiversity'. However, neither traditional knowledge nor biodiversity can be patented by indigenous practitioners because for indigenous societies, it is not 'novel', it is ancient.
The reason that the collective and cumulative innovation of millions of people of thousands of years can be 'pirated' and claimed as an 'innovation' of Western-trained scientists or corporations is because of two reasons. The first reason is the colonial hangover of the idea that science is unique to the West, and indigenous knowledge systems cannot be treated as scientific.
The second reason is that countries like the US, where most pirated indigenous innovations are filed for patenting, do not recognise the existing knowledge of other countries as prior art. Thus, while patent regimes offer no protection to indigenous communities for their common innovation and their common resources, they allow the appropriation of their biodiversity and knowledge by scientists and commercial interests of other cultures, including members of the 'modern' scientific culture in their own societies.
IPR systems evolved in industrialised countries and reflected in the TRIPs agreement only recognise Western knowledge systems as scientific and formal and non-Western knowledge systems are regarded as unscientific and informal. The creation of monopoly rights to biodiversity utilisation through its claim to the creation of 'novelty' can have serious implications for erosion of national and community rights to biodiversity and devaluation of India's indigenous knowledge. TRIPs gives countries the option of formulating its own sui generis regime for plants as an alternative to patent protection . Collective rights can be a strong candidate for such sui generis systems for agricultural biodiversity and medicinal plant biodiversity. Therefore, it is crucial that community-held and utilised biodiversity knowledge systems are accorded legal recognition as the 'common property' owned by the communities concerned. Building such an alternative is essential to prevent biodiversity and knowledge monopolisation by an unbalanced mechanistic and non-innovative implementation of TRIPs or in response to Special 301 threats from the US.
Examination of existing national and international legal community rights legislation reveals that there are no binding legal instruments or standards that adequately grant rights to indigenous people's collective knowledge and innovations thereby protecting their knowledge from biopiracy. That is not to say there is no scope for such developments. To the contrary, trends and precedents set in the area of international indigenous rights legislation and case law signify a strong movement in this direction, with several significant judgments being passed in recent years.
The CBD, an instrument passed in 1992, represents the boldest move in the direction of recognising indigenous knowledge traditions and innovations. The Convention deals specifically with biodiversity and makes biodiversity conservation the obligation of member states. It also recognises the role of local communities and tribals in conservation of knowledge for biological wealth.
In the preamble, the Convention states:
'that contracting parties recognise the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources and the desirability of sharing equitable benefits arising from the use of traditional knowledge, innovations and practices, relevant to the conservation of biological diversity and sustainable use of its components.'
Right to enact laws
The Convention not only recognises the sovereign rights of the nation state to biodiversity and the method of its utilisation through Articles 3 and 4, but also gives them right to enact their own laws for protecting their biodiversity, in a manner best suited to their particular needs and priorities.
The UN Draft Declaration on the Rights of Indigenous Peoples 1993 yet to be adopted by the UN General Assembly, promises to strengthen the position of indigenous collective rights considerably. For instance, Article 29 states:
'Indigenous people are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property...'
Despite the Draft Declaration constituting a non-binding status, the articles indicate a strong international consensus on the positive assertion of indigenous community rights. It will provide a powerful tool in changing attitudes as well as a focus for dialogue and debate at the national and international level.
The Fourth Technical Conference on Plant Genetic Resources held in 1996 by FAO, produced the Leipzig Declaration on 'farmers' rights'. This Declaration gives legal recognition to farmers' innovation in contributing to the rich diversity of agricultural crops in the world. The central objective of farmers' rights is to ensure control of and access to agricultural biodiversity by local communities, so that they can continue to further sustainably develop their farming systems.
It is quite evident that there is a lack of fit between the structure of commons and communities, and the structure of Western, especially US concepts of rights and property.
If commons and communities do not fit into the narrow, non-sustainable and parochial framework of eurocentric jurisprudence, then it is that framework that needs changing rather than the collective nature of rights of communities.
The challenge at the end of 500 years of colonialism and 50 years of independence and the threshold of the third millennium is to evolve a millennium perspective on the environment, and on people's rights instead of being enslaved by the colonial paradigms that have emerged over the last 500 years of colonial rule." (http://bearmarketnews.blogspot.com/2009/10/enclosure-of-commons.html)
The above article is an edited extract from a longer version which appeared in The Enclosure and Recovery of the Commons published by The Research Foundation for Science, Technology and Ecology, India. Vandana Shiva is a scientist and activist. She is also a contributing editor for Third World Resurgence. (TWR 84 - August 1997)