The information age and its new lexicon: Biotechnology as a case in point

Technology in Society, W. 16, No. 4, pp. 447-463.1~ Copyright 8 1994 Ekevicr Science L.td PriwdintbeUSA.AUrightsnsaved 0160-791xm $6.00 + .09

The Information Age and Its New Lexicon: Biotechnology as a Case in Point Jams

Buchanan

ABSTRACT We are in the midst of an emerging information age. Like all other world orders, the information age is founded on lexicons. In this article, the author focuses on biotechnology to illustrate some of the issues involved in this new age and its lexicon. Examining biotechnology as part of an information age, argues the author, will allow us to see how this new age demands the reinterpretation of basic ideas ranging from scientific vision to theories of properties and property rights.

The term biotechnology as used here refers to the biological techniques that include certain advances in molecular biology, biochemistry, and genetic engineering. Genetic engineering is usually described as a set of tools or techniques that allows genetic materials from one organism to be combined with those of another, which is alluded to in the term recombinant DNA technology. The result of such transgenic procedures are novel life forms, called genetically modified organisms (GMOs). Limiting our use of the term biotechnology is important because those in the bioindustry - those engaged in the business of biotechnology - often try to use the term in such a way that it encompasses traditional forms of agricultural and industrial biology, thus obscuring the profound shift that these new biotechnologies represent. James Buchanan was educated in comparative philosophies and ethics. He presently teaches at the Hong Kong University of Science and lkchnology where his research focuses upon the social and environmental impacts of science and technology and ethics in a postmodernltechnological situation. Various sections and topics contained in this article have been presented as lectures or as part of discussions during 1992 and 1993 in Hong Kong; Rio de Janiero, Brazil; New Delhi, India; Peniscola and Barcelona, Spain; Geneva, Switzerland; and Washington, DC. It has benefitted greatly from the comments, corrections and questions raised on those occasions.

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Is biotechnology part of an emerging world order? There are three perspectives from which we might develop this issue. The first is what Thomas Kuhn has termed “paradigm shifts.“1 The second perspective is what is generally referred to as worldviews. The third perspective is an analysis of the shifts in knowledge/power relations, particularly those developed in the work of Michel Foucault.2 Paradigm shifts, worldviews, and knowledge/power constructs are closely related. In an age that is characterized predominantly by its science and technology, new or revolutionary science is accompanied by shifts in worldviews. What is initially revolutionary over time becomes normative. This is true not only for the scientific, but also for the more general cultural worldview. The idea of revolutionary science as developed by Kuhn entails a shift at the worldview level, which is a knowledge/power construct; otherwise, it is merely a refinement of previous science. The replacement of normative science by the revolutionary science is a slow and political process in which the stakes are less about truth, in the abstract or absolute sense of the term, than they are about power. ‘Ib state this simply: As revolutionary worldviews become normative, they are accompanied by the empowerment of certain groups, individuals, ideas, and institutions and the disempowerment of others. Worldviews, or the philosophical attempt to describe them in terms of a set of determining criteria, reflect the underlying principles, social beliefs, and practices of an age or people. They are “descriptive-interpretive mental models of the universe and its phenomenon.“3 Worldviews define and redefine the world at a fundamental level. They determine what is real or illusory, “the origins, natures, and destinies (if any) of things that exist; the primary forces at work in the world: the purpose (if any) built into the world and manifested in what transpires in it . . . .” 4 Worldviews help us make sense of things by providing frameworks within which interpretation takes place. They describe, in the broadest terms possible, what Gadamer terms “prejudice”: a recognition that all understanding takes place within cultural and personal horizons defined by language. In this sense, all understanding is prejudiced. In fact, the idea that there is some unprejudiced, neutral perspective is what Gadamer calls the Enlightenment’s “prejudice against prejudice.” Prejudice, although part of a worldview, is the very openness to the world that makes interpretation and understanding possible.5 Thus, worldviews are, to one degree or another, always reductionistic in that only through them is the world taken into account. Even though worldviews are the most general description of a cultural horizon, this is still a limited perspective. Understanding worldviews as prejudice does not move us beyond prejudice but allows us to use them heuristically to interpret social, cultural, and intellectual shifts at the broadest possible level. While descriptions of worldviews are never adequate to an age or a people, they help us see both macro- and micro changes in attitudes, in relationships, and in practices.

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We classify worldviews as premodern and modern, eastern and western, and organic and mechanistic. The new worldview that I will add to this list is cybernetic/technical.6 Some of the characteristics of these contrasting worldviews are shown in Table 1. The worldview that I call organic corresponds roughly to the premodern - and sometimes Asian - worldview, while the mechanistic refers to what is often called the Newtonian worldview. The preceding list of characteristics is by no means complete, and the various characteristics require explanations. Worldviews are meant to be heuristic and suggestive so they can provide a means of describing, on the most general level, what I call a world order. The cybernetic/biotechnical worldview has elements in common with both the organic and mechanistic worldviews; in the end, though, it is fundamentally different than either. The key element of this new worldview is a description of the world in terms of “information” and “information systems.” The emergence of this new cybernetic/biotechnical worldview ties together two of the greatest achievements of the modern era: the development of the computer and biotechnology. The dominant characteristic of both is the reduction and reorganization of the world as information. The term cybernetics is derived from the Greek word kybernetes, which means “steersman.” Cybernetics was popularized as a term by Norber Wiener, the MIT mathematician who defines it in terms of information and information systems. Information is “the name for the content of what is exchanged with the outer world as we adjust to it, and make our adjustment felt upon it. The process of receiving and of using information is the process of our adjusting to the contingencies of the outer environment, and of our living effectively within that environment.“7 TABLE 1. Some Characteristics of the Contrasting Worldviews Characteristics Organic

metaphysical/cosmic, correlative thinking, holistic, whole to part, tradition cyclic temporality, repetition, no subject/object split, means/ends separation, participation in nature

Mechanistic

matter/motion, causal thinking, atomistic, part to whole, innovation linear temporality, progress, subject/object split, means/ends relation, domination of nature

Cybernetic

information, systems’ process thinking, behavioral networks, programming and feed back, origination, broken linear, neo-evolutionary, reflexive circuits, means/ends programming, reprogramming of nature

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The crucial elements of cybernetics are information and feedback. Wiener believes that information “belongs among the great concepts of science such as matter, energy and electric charge.‘@ Wiener concludes that “society can only be understood through a study of the messages and the communications facilities which belong to it.“g Information becomes a new way of understanding the world theoretically and a new way of organizing the world practically. Cybernetics is not related to “what a thing is but how it behaves.“1° In the context of cybernetics, the being is described as relation, but the complexity of relation is reduced to one key concept: information exchange. This is easy to understand in the context of computers, but what must be considered is the way in which the computer has increasingly become a model not only for understanding and organizing society but for biology as well. This was Wiener’s intention from the beginning: a paradigm shift in the science of biology. Marjorie Grene states that there is a new way of thinking in the biological sciences that “says in effect: look to engineering, to blueprints and operational principles for the sources of your theoretical models in biology. “11 The keys to the engineering forms that Grene alludes to are information systems. W. H. Thorpe describes living organisms as things that “absorb and store information, change their behavior as a result of that information, and have special organs for detecting, sorting and organizing this information. . . The most important biological discovery of recent years is the discovery that the processes of life are directed by programs. “12 Programs are the structures that process and store data, and data is information. Models of understanding become models of organization. The questions are how and where do the new systems of knowledge become institutionalized? It is clear that power, particularly political and economic power but also “intellectual power” or what Foucault calls “knowledge/power,” and fiduciary exchange are among the most important organizing principles for any society. In an information age, information becomes a principal locus of power and fiduciary exchange. Thus, information becomes not only a new way of understanding the world but a new way of organizing it as well. In this age, not only is computer logic a model for modes of cognitive development and organizational structures, but, more importantly, information is the newest commodity in the global marketplace. Mark Poster gives us the first key to understanding this change in the world’s marketplaces. In the era of industrial capitalism, social and natural resources essential to the production of material goods came under the control of self-interested private individuals. In the era of the mode of information the process is at work again. We are now being convinced that “information” is first a commodity and second that it is properly controlled by market forces. l3

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This insight is critical, although more basic is the way in which the market itself is being controlled by “information forces.” Not only is a new commodity being introduced, but the market itself is being radically reshaped and restructured by an entering information age. Poster’s primary concern is the electrification of information. The problems that arise when information becomes a commodity stem from the fact that it is reproduced too easily. In the past, commodities were protected by the complexity of the process, material, and skills required to produce them. As Poster states, Producer and consumer were separated by the process of production. Clothing, appliances, furniture - few consumers imagined they could provide these for themselves. Books, music and film were no different. Consumers paid for the manufacture of the book, not for the information in it which was available at no cost in public libraries. Information was inseparable from the package in which it was delivered and the package had a price tag.14 But by using the new information technologies, anyone can reproduce information without having to deal with the original producer. The result is that “the principle of private property is threatened in the domain of information.“15 I want to further Poster’s idea concerning the principle of property by claiming that the emergence of an information age challenges, in fundamental ways, all of our prior theories of property, ownership, and property rights. The legal battlefields upon which the new theory of property and property rights will be shaped are known as Intellectual Property Rights (IPRsj. IPRs cover a wide range of issues, including copyrights, trademarks, encrypted satellite signals, sound and video recordings, layout designs of semiconductor integrated circuits, trade secrets, industrial designs, and patents. I want to concentrate on patents, and their relation to biotechnology because it is in this context that we can see the radicalness of previous notions of property and property rights. This is not to suggest that there are no examples in other areas: There are presently a number of high-profile cases that involve employees who leave a company “in possession of” proprietary information or intellectual property that belongs to the company.16 Proprietary knowledge is the knowledge upon which a company’s competitive position in the marketplace is based. These companies, in bringing lawsuits, seek to be compensated or to block the workers from working for rival firms for whom that information might be valuable. The questions raised in these cases are complicated ones that have no precedents to guide the legal community. Who “owns” the information and where are the lines drawn on the information? How does someone who engages in research and development close off those parts of the thinking process in which the information gained while in the employ of another firm resides? How can the role that information, even if it is background

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information, ever be legally sorted out? Using Poster’s term, do the employees become the “packages” that carry the information? And if a company is found to legally “own” the information, does it also own the people who become the packages that carry the information? What, then, are the limits of that ownership? Are those employees forced to work only for that company? If the result of the lawsuits is that the employees can change companies but not work in the same area of expertise, they would, in effect, be trapped with the parent company. To sort out what is or is not intellectual property, a level of technical competence that only the experts possess is required. (Note the language used: “possess.” This raises questions concerning the point at which technical competence becomes intellectual property.) There are also a growing number of cases that involve piracy of various media forms. All of these cases involve “intellectual property,” and what they show is that to “own” and control information is fundamentally different than owning objects. The complexity of these cases, all of which have set new legal precedents, makes clear that property itself is being redefined. The issue is one of mechanisms. Are we using ownership mechanisms that have been developed for other types of property? At one level, the question is whether certain mechanisms are appropriate for these new forms of property. But there are more fundamental questions concerning property that demand attention prior to the formulation of mechanisms. Perhaps the best context in which to raise these questions is that of biotechnology. Biotechnology is the ultimate application of Wiener’s theories on cybernetics in the biological world. Within biotechnology, the notion of an information age is taken to a new level. In biotechnology, all living things are regarded as information that is stored in DNA chains. Poster’s concerns about electronic reproducibility take on a whole new meaning with biotechnological products. Living organisms that we might think of as the “packages” in which information resides can reproduce themselves. The information stored in DNA chains can be used by agents to reproduce the living products; but, in the case of seeds, animals, or microorganisms, which is the level at which most “products” exist, reproduction is part of the life cycle - unless it is programmed out. Biotechnology opens up not only a legal Pandora’s box but a moral one as well. The bioindustry is seeking legal protection through intellectual property rights and life-form patents in order to control the financial returns derived from the products that are made from reengineered DNA. As would be expected, the arguments that emerge from the bioindustry are economic arguments, and the stakes are high. The Bioindustry estimates that it requires on the order of $203,000,000 USD to develop and bring to market a single genetically engineered product. Given the difficulty experienced by companies that have invested such huge amounts in controlling the distribution and reproduction of their products, it is not unexpected that they would want patent laws that require the end user to pay a royalty to the company for each new repli-

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cation. How such information can be controlled, how the royalties are to be computed, and to what degree this information becomes part of the public domain are complicated issues. Patents are currently the principal legal mechanism for controlling ownership of intellectual property and information concerning biotechnology. But new issues have emerged regarding the differences between process patents and product patents, the criteria for patentability, and reproducibility, which also involve the relationships between developing and developed countries. The focus on these issues raises questions concerning the ability of patents to accommodate the new forms and issues involved. Key to assessing these issues is the notion of property that is being used or developed along with biotechnology. In order to begin this assessment, I want to return to what I have called the new lexicons. At issue is where these new lexicons are being established and defined. We speak of this where in terms of discourse or discursive regimes. Foucault’s analysis of knowledge/power is insightful in this context. He states that, In a society such as ours, but basically in any society, there are manifold relations of power which permeate, characterize and constitute the social body, and these relations of power cannot themselves be established, consolidated nor implemented without the production, accumulation, circulation and functioning of discourse. There can be no possible exercise of power without a certain economy of discourses of truth which operates through and on the basis of this association. We are subjected to the production of truth through power and we cannot exercise power except through production of truth.17

He argues that truth is a power term and the political technologies that both constitute and maintain the discourses on truth are “institutional sites of power.” Discourse may seem to be a strange term for this context, but Foucault’s point is that all societies function by meaningful communication or discourse and that much is at stake when a discourse is judged to be either meaningful or meaningless. An example of this is “madness.“18 “Madness” is not an absolute state but a discourse or a history of discourses about the relative state called “madness.” Madness is something we discuss and make judgements about: This action or person is “mad,” the other is not. Part of the issue is who the “we” are. Madness as a discourse is different from period to period and from society to society because different groups control the discourse. Madness in the age of psychology is not the same as it was in the one prior to it. Psychology is itself a discourse - on madness - that grew into an institution which in our period holds the power to define madness in theory and, more importantly, in practice. This psychology is the institutional site of power from which the discourse on madness is constituted in the modem West. Discourses both constitute and are constituted by their lexicons. As new discourses are constituted, new lexical terms become empowered. At the same time, new institutions become empowered. The relationship is reflexive: The lexicons provide the legitimacy for the institutions, while

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the institutions provide the power that maintain the lexicons. Worldviews are lexicons that exist in reflexive relationships with the institutional sites which are based on and work to empower those discourses. This is seen in the relationship between revolutionary and normative science. Newtonian physics becomes normative not only because it is “true” in the metaphysical sense of truth, though this is generally what is claimed, but because it has the institutional power to maintain itself as “truth.” The institutional power comes in the form of political structures, educational structures, and market forces. Here, truth has both a theoretical and practical dimension. Particularly in practice, revolutionary science cannot establish itself as truth until it can establish itself institutionally because the politics of legitimacy are at play. This politics of legitimacy claims metaphysical truth for its lexicons and, to the degree that it convinces society of this, it is legitimized. Based upon this legitimacy, it gains power, which allows it to maintain the truth through institutional means. For example, the Newtonians were able to hold the Einsteinians at bay institutionally for a long time after Einstein had proclaimed the truth of the theory of relativity. This is also the case with information, which is the new power term in the lexicon of the emerging age. Where are the institutional sites at which the new discourses and lexicons are being determined? The two sites that I examine here are the United Nations Conference on Environment and Development (UNCED or the Earth Summit) and the General Agreement on Trades and Tariffs (GATT). Both represent global agreements of unprecedented scale and, if not different worldviews, different visions of the future. Biotechnology is the best test case for information because it is the most extreme and controversial context in which the term is being deployed. UNCED was the largest diplomatic meeting and the largest meeting of nongovernmental organizations ever held: some 130 countries were represented. The vision of UNCED is expressed by the term sustainable development. Sustainable development is a new discourse with a new lexicon that was initiated in the process leading up to UNCED. Following the argument outlined above, it could be said that this new discourse and lexicon will succeed only to the degree that it finds institutional sites of empowerment and political technologies which can define it as truth in both theory and practice. As I have argued previously, biotechnology is at the heart of a paradigm shift is both the understanding and reorganization of the world. Biotechnology is a social discourse or a number of discourses that take place within the confines of various institutional contexts, In other words, biotechnology is not the same for genetic scientists as it is for business people. It also takes on a different meaning when it is discussed within the context of the debate concerning sustainable development. What complicates matters are the complex knowledge/power regimes within which each of these discussions take place. Ultimately, biotechnol-

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ogy, as part of the larger discourse on information, must be seen as “relations of power” that are “established, consolidated, and implemented” by the “production, accumulation, circulation and functioning of discourse.“lg UNCED was an institutional site established to empower developing countries and the environment by tying the two together within the discourse on sustainable development. Sustainable development was intended to set new economic, political, and environmental directions for the planet. These new directions entail a redistribution of power relations as well. In other words, the legitimization and empowerment of sustainable development as a discourse has tremendous implications for the present and future power regimes. UNCED was not the institutional site at which the bioindustry wanted the new lexicons for biotechnology to be established; it was the wrong context for their interests to be well served. Institutional sites come with a preestablished set of power relations, and much of what takes place in them is the struggle to maintain or alter them. Ostensibly, UNCED was an institutional site at which the preestablished power relations were such that the proponents of the bioindustry felt uncomfortable in their ability to constitute the discourse concerning the systems of ownership of genetic information. Therefore, their strategy was twofold. First, they had to minimize or eliminate the consideration of biotechnology at UNCED. If they failed to do that, they had to present the discourse in a language that was long on ambiguity and speculation and short on substantive regulations. Originally, biotechnology was to be a convention. Conventions are the largest and most empowered of the documents negotiated in the UNCED process. The two conventions that were signed at UNCED were the Convention on Biological Diversity and the Convention on Climate Change. The developments leading up to the elimination of biotechnology as a convention began in the first preparatory conference held in Nairobi in August, 1990. In this conference, biotechnology was downgraded from the status of a convention to that of an issue connected with biodiversity. In the final negotiations in Rio, biotechnology was taken up as an issue only in Articles 15 and 19 and with indirect references in Articles 16-18 of the Convention on Biological Diversity and Chapter 16 of Agenda 21. Throughout the process, the US delegation eliminated anything that would regulate the bioindustry. This was relatively easy to do because at UNCED a vast range of issues of labyrinthine complexity with more immediate impacts on developing nations were discussed; biotechnology was either lost in the mix or became a negotiating chip used to get concessions on other issues. Likewise, many of the nongovernmental organizations specialized only in their particular issues, and most had no policy position on biotechnology to begin with. Thus, the fact that the basic definitions which would become central to the emerging global discourse on biotechnology were established at UNCED was missed by most.20 The exceptions were the countries that presently control and

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want to continue to control the discourse. These countries understood that biotechnology was a major issue. As a result, when biotechnology became a discourse within the UNCED process, most of the issues relating to the interests of the developing countries and environmentalists had been eliminated. In fact, what remained reflected the bioindustry’s own positions and interests. These interests are expressed in documents that were provided to the UNCED negotiators by the International Bioindustry Forum (IBF). The IBF is an umbrella organization that represents the views of its member organizations: The Senior Biotechnology Advisory Group (Europe), the Japan Bioindustry Association, the Industrial Biotechnology Association (the United States), and the Industrial Biotechnology Association of Canada. The document, entitled “Policies for Sustainable Development: The Role of Biotechnology,” reflects an uncritical view of the social and environmental impacts of biotechnology.21 In this document, it is maintained that genetically manipulated organisms are “natural,” not artificial and are improvements upon unmodified organisms because of their increased “efficiency.“22 That the bioindustry would vigorously defend its own position is understandable, but what is surprising is that when the IBF document, when compared to Chapter 16 of Agenda 21, entitled “Environmentally Sound Management of Biotechnology,“23 contains the same uncritical perspective. In the UNCED document, biotechnology is presented as a solution to the world’s social and environmental problems, but nowhere is there a call for any type of legal code, although risk assessment, risk management, and “internationally agreed principles” are discussed.24 When the Clinton administration signed the Convention on Biological Diversity, they did so with the stipulation that they be allowed to file an interpretive statement along with it. That statement has been veiled in secrecy, but an early draft of it was leaked out. That copy clearly states that the administration’s main concern is the protection of intellectual property rights and the ability to patent genetic material. This indicates that the administration accepts biotechnology as a linchpin in its hightech approach to ensuring the economic future of the US. With GATT, we find the lexicons being manipulated in a more direct, but still subtle, manner. GATT is the first large-scale international agreement to be developed after the global commitment to sustainable development and the protection of the environment agreed to at UNCED. In GATT, there is virtually nothing about either sustainability or environmental issues.25 GATT is the context within which the bioindustry would like to see information defined because in GATT, all issues are treated as trade-related issues. GATT takes the complexity of the shift to an information-based society and reduces it to the trade issue of IPR or Trade Related Intellectual Property Rights (TRIPS). The nationalistic question inherent in GATT concerns the degree to which one is convinced that the economic destiny of the nation is tied to the economic destiny of transnational corporations, which have been actively “advising” the

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negotiations. These companies have much to gain from the standardization of patent and copyright regimes worldwide and from the international recognition of the patenting of life forms. All of this depends upon how “information” is defined. If it can be established that information can, in principle, be owned by means of IPR and TRIPS, the next crucial step would be to define what counts as information and what does not. As we shall see, not all of the things that one might think of as knowledge or information count as such in the new lexicons. Section 5 on “Patents,” Article 27 entitled “Patentable Subject Matter”26 states: (1) Subject to the provisions of paragraphs 2 and 3 below, patents shall be available for any inventions whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph 4 of Article 65 and paragraph 3 of the Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.

Crucial are the terms “new,” “involve an inventive step,” and “capable of industrial application.” One of the issues that has been raised in opposition to GATT concerns the status of “traditional knowledges of indigenous peoples.” There are many plant breeders who, through generations of trial and error, have developed certain specialized plant varieties. Such plant varieties would not be patentable under these regimes because they are not “new” and do not involve “an inventive step.” But, if a scientist obtains some of the seeds and genetically identifies the special characteristics, the characteristics are transformed into information, which is patentable. Such cases already exist. For example, in West Africa, the local farmers grow a cowpea that is resistant to insects. A scientist at the University of Durban, Angharad Gatehouse, on a trip to West Africa, obtained some of these seeds. Using biotechnical techniques, he discovered the genetic mechanism that makes the cowpeas resistant. He promptly left the university and joined the Agricultural Genetic Company of Cambridge, which applied for a patent for the “invention.” It was only after the scientists had identified the characteristic genetically that it became “information” and, thus, could be owned. It could not be owned in the traditional form.27 The definition of information in the new lexicon is limited by terms such as new and inventive step in order to benefit the experts in genetic science and not the experts in plant breeding. Another example of the way in which these lexicons are manipulated is related to the Human Genome Project. The NIH has filed for some 2000 patents on genetic sequences and partial sequences. The US Patent Office has thus far refused patents based on the lack of “novelty.” The NIH has reapplied claiming that the “novel” step is showing what the genetic sequence “expresses.” Nothing new has been added; all that has happened is that a new minimalist definition of “information” that states that identification

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is information and, thus, patentable. Time will tell whether Patent Office will accept this new interpretation. Section 5 of the GATT reads:

or not the

(2) Parties may exclude from patentability inventions, the prevention of which within their territory of commercial exploitation is necessary to protect the public order or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not merely because exploitation is prohibited by domestic law. (3) Parties may also exclude from patentability: (a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals. (b) plants and animals other than microorganisms and essentially biological processes for the production of plants or animals other than nonbiological and microbiological processes. However, parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. This provision shall be reviewed four years after the entry into force of this agreement.

These paragraphs are ostensibly about that which can be excluded from patentability. But, what is most striking about them is the things that are excluded from exclusion. In fact, this section opens the door to the recognition of the patentability of life forms. In so doing, GATT becomes the first full-scale international agreement to recognize that life forms are patentable. It does this in an ambiguous and subtle fashion. The key term is microorganisms. First, the term itself is very ambiguous. There are no clear legal definitions as to what do and do not count as microorganisms. But the point should not be missed that a principle is being established here: Life forms are patentable. The paragraph goes on to exclude from the exclusions “non-biological and microbiological processes.” Again, this is very ambiguous: What is included under “non-biological” processes is never specified. On the other hand the reference to “micro-biological” process is not a mystery. Interpreted in its simplest terms, microbiological includes genetic engineering. If the process is patentable, then the product that the process creates is ownable. The rest of the paragraph is even more ambiguous. It states that “parties shall provide for the protection of plant varieties . . . by sui generis systems.” This must be read in terms of paragraph one, which defines the limiting criteria of “new” and the involvement of an “inventive step.” Thus, it is not clear what is and is not being protected. The same is true for the stipulation concerning sui generis modes of protection. What these modes might be and what might happen if and when they conflict with those of GATT is not clear. What is clear is that, given GATT, there would have to be real limits to how far such local or regional regulations could go. This raises questions concerning what happens when the intent and specifics of UNCED or local, regional, or national priorities and GATT come into conflict. Again, it is to the institutional sites that we must look for our clues. One of the mechanisms proposed in GATT is a system of tribunals that would adjudicate such conflicts.

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The final sentence, regarding the review of the process four years hence, is important to the bioindustry. If their strategy is an incremental one that begins with the recognition of the patentability of microorganisms and microbiological processes and moves to plants, animals, and human beings, then a review of the policy after only a few years is crucial. Most of what we find in GATT - and NAFTA - is not new. The patenting of life forms is already recognized in the US and Europe.28 The importance of GATT is twofold: First, it sets the context and the terms of the discourse firmly in the marketplace; and second, it seeks to establish uniform patent regimes for the entire planet or, at least, for all who would seek to be part of GATT. This brings up another key difference between UNCED and GATT. While GATT is highly ambiguous in regard to the definitions of such things as microorganisms, it becomes very specific when it comes to the retributive mechanisms for those who do not follow its dictates. On the other hand, mechanisms of enforcement are the weakest part of UNCED. By determining at the outset the definitions of “information” in the new lexicon, the forces that are defining the terms of the discussion on biotechnology in some of the most important institutional sites gain control of the information marketplace. By establishing the criteria that will determine what is and is not ownable, they create a structured marketplace in which participation is dependant upon technical competence. Another indication of our entering a new age is the way in which biotechnology is opening a new era of bio-politics; new forms of knowledge/power configurations that disturb the meanings of terms which have been relatively stable in the past: nature and species. The traditional uses of terms such as nature and species are meaningless. Nature has always been a limit-based concept. It has provided a set of categories and a basis that, more than for any other concept, was transcultural and transhistorical. Likewise for the term species. Except for the rapid disappearance of species due to ecological devastation in the modern world, the concept of species has represented a relatively stable limit to thought and practice. Within the new discursive regime of biotechnology, both terms become virtually meaningless as limit concepts. Transgenic organisms do not exist in nature. 2g The slow evolutionary process by which nature had introduced new species and new organisms has now been irrevocably altered. The number of new species that might be introduced is limited only by the genetic resource base and the human imagination. This also holds true for the preservation of species and for biodiversity; there are various strategies for maintaining biodiversity and preserving species. If we correlate these strategies to the worldviews outlined above, we find that within an organic worldview, the preservation of species and the maintenance of biodiversity is holistic. Preserving a species demands that the entire ecosystem within which it cohabits be maintained. Ontologically, a species is seen in terms of the relationships it maintains with other participants of an ecosystem. Within a mechanistic worldview,

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we find that a species is seen in terms of a substance ontology. Preservation is accomplished if a few examples of the species are maintained in holding facilities. These facilities may be limited attempts to preserve or duplicate ecosystems, or they may be zoos or animal theme parks. The animal is discursively construed as a substance, which means that as long as one material example is preserved, the species is not extinct. In a cybernetic/biotechnical worldview, the preservation of a species can be accomplished by preserving its genetic code in a gene bank. Ontologically, a species is reduced to the information that is encoded in its DNA, apart from its relationship within an ecosystem and even apart from the need to preserve a living example. As for nature, the term has indeed become slippery. One example is the way in which the IBF document identifies genetically modified organisms (GMOs) as natural. Because things that are natural are not threatening, this counters the claim that characterizes GMOs as unnatural Frankensteins. The implication is that we are not tampering with nature but are engaged in a wholly natural process. This claim was not affirmed by the UNCED documents, but neither was it rejected. A great deal depends on which side of the debate we fall. On the one hand, recognizing GMOs as natural is confusing from a regulatory standpoint. It is easier to accept the release of natural organisms into nature then unnatural ones. On the other hand, in the debate concerning IPR, the term nonnaturally occurring organisms appears. Non-naturally occurring may become a crucial category for determining novelty. I do not want to judge these complicated issues, but I do want to point out differences in the ways that lexicons are used in various contexts. Finally, there is the claim put forth by the bioindustry that they will add to biodiversity by both working to maintain the present biodiversity because it is their resource base and by introducing new organisms and species. In some scenarios, Foucault’s concept of the knowledge/power regime can be taken to nightmarish conclusions. With the introduction of new and more efficiently designed organisms into already stressed ecosystems, survival of the fittest becomes a game that is fixed in favor of the laboratory-produced contestants. Furthermore, under the protection of the life-form patents, corporations will not own just an animal, plant, or organism but an entire genetic line. In this way, it becomes possible to genetically “own” an entire species. This leads one to imagine a future in which the only biodiversity remaining on the planet comes from laboratories. When one adds to this the fact that the industry is seeking the ability to patent anything they discover, we are left with a world in which the biodiversity of the planet is all owned by various patent holders. , This is not even limited to nonhuman organisms. There have already been cases that involve the patenting of human life forms, which adds a disturbing chapter to what Foucault has called the “political technologies” of control of the body. One such case involved John Moore’s spleen. Moore had his cancerous spleen removed at UCLA. It was subsequently

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determined that his spleen had certain genetic characteristics that made it useful in developing a “cell line.” That cell line was sold to a biotech firm in Cambridge that in turn sold part of it to the giant Swiss concern Sandoz. Moore went to court to demand a portion of the profits that had been derived from his spleen. The lower court found in his favor, but the California Supreme Court found that the companies had no fiduciary responsibility to Moore, although it did allow him to sue his doctors for not informing him of their actions. Moore’s spleen - or the cell line developed from it - had become the intellectual property of those who had identified its information and value. Moore’s body had become a piece of intellectual property over which he has lost “ownership” rights.30 Even more confusing is the recent patent application introduced by the Secretary of Commerce of the United States for a cell line developed from the genetic structure of the Guaymi Indians of Panama (US Patent Application 9108455). Although the patent application reads “Human TLymphotroic Virus Type 2 From Guaymi Indians In Panama,” this was done without the knowledge of the Guaymi Indians. This patent application must be viewed in the context of a much broader project called the Human Genome Diversity Project, in which genetic materials are gathered from indigenous peoples all over the planet with the clear intention of developing “cell lines.” Cell line development and the filing for patents on them is a necessary “inventive” step, but it must be noted that it is a relatively easy thing to do. 31 When the thousands of patents applied for by the National Institute of Health in connection with the Human Genome Project are added together, the enormous dimensions of this new age become clear. What does it mean to “own” the genetic structure of a person, of a tribe of people, or of humanity? What kind of rights do we have over our own genetic structure? Is property to be defined purely in terms of techno/scientific superiority? How should equitable distribution of profits be structured in such cases? The basic question that lies behind all others is: Should the patenting of life forms be allowed at all? It is clear that these issues pose social, ethical, even religious questions as well as or even before they pose economic ones. The consideration of living things as forms of intellectual property could only occur under a discursive regime that reclassifies everything as information. Within biotechnology, science and law combine to reinscribe nature within a discursive regime first by redefining science, including redefining legitimate knowledge as information, which in turn allows for the development of new modes of legal bio-political controls, which in turn provide the social and institutional reinforcement of that knowledge. The only conclusions that we can presently draw are that all of our previous notions of property and property rights are being challenged and there is a critical need for scholars and public officials to look in depth at what these new notions of ownership and property mean, should mean, and will mean for the future. Such questions go to the very foundations of a society and redefine its notions of property, which are fundamental

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to the directions that societies - and the world - chart for themselves. The point I have raised here concerns the contexts within which these new lexicons are determined and the ways in which particular institutional sites and the interests that are empowered in those sites are setting the limits of the discourse. What will determine our fate as we enter an information age are not only the answers to the questions, but where and how the questions are raised.

Notes 1. T. Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1970); T. Kuhn, The Essential Tension: Selected Studies in Scientific Dadition and Change (Chicago: University of Chicago Press, 1977). 2. Particularly in his later work. See, for example, M. Foucault, Power/Knowledge, C. Gordon (ed.), (Brighton: Harvester Press, 1980); M. Foucault, The History of Sexuality, Vol. 1, An Introduction (New York: Vintage Books, 1990). 3. R. McGinn, Science Technology and Society (New Jersey: Prentice Hall, 19911, p. 130. 4. Ibid, p. 130-131. 5. H. G. Gadamer, Zkuth and Method, (New York: Seabury Press, 1975). 6. Most of this section is drawn from J. Rifkin and N. Perlas, Algeny (New York: Penguin Books, 1983). Though it does not attempt to work out the characteristics of the worldviews involved, this important book was the first to attempt to deal with biotechnology as a shift in worldviews. 7. N. Wiener, The Human Use of Humans: Cybernetics and Society (Boston: Houghton Mifflin, 1954), p. 26. 8. Ibid, p. 278. 9. Ibid, p. 25. 10. C. Mitcham, “Philosophy and Technology,” in P. Durbin, ed., A Guide to the Culture of Science, Technology and Medicine (New York: Free Press, 1980), p. 316. 11. M. Grene, The Understanding of Nature, Essays in the Philosophy of Biology (Dordrecht, Holland: D. Reidel, 19741, p. 68. 12. W. H. Thorpe, “The Frontiers of Biology,” in J. Cobb and D. Griffen, eds., Mind and Nature (Washington DC: University Press of America, 1977), p. 3. 13. M. Poster, The Mode of Information: Poststructuralism and Social Context (Chicago: The University of Chicago Press, 1990), p. 73. 14. Ibid. 15. Ibid. 16. Recent cases involving IBM against Seagate and General Motors against Volkswagen are examples. 17. M. Foucault, “Two Lectures,” in Power/Knowledge: Selected Znteruiews and Other Writings, (New York: Pantheon, 19801, p. 93. 18. M. Foucault, Madness and Civilization (New York: Vintage Books, 1988). 19. Ibid. 20. There was an NGO Biotechnology Task Force that was ad-hoc and led by representatives of the Biotechnology Working Group from the United States. This group produced a critique of Chapter 16 of Agenda 21 and a list of thirteen principles concerning biotechnology that attempt to establish some limitations for its usage and for the equitable distribution of profits. 21. Document obtained by the NGO Biotechnology Task Force in Rio. 22. All of the preceding quotations are taken from “Policies for Sustainable Development: the Role of Biotechnology” p. 12, “Executive Summary.” This is an unpublished document created for UNCED by The International Bioindustry Forum. Attempts to get a copy of the full text have been unsuccessful. 23. Agenda 21 is published by the United Nations. Somewhat appropriate to an information age, the copy from which I worked for this article was received via E-mail. 24. “Environmentally Sound Management of Biotechnology,” Agenda 21, Chapter 16.

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25. Initial hopes by many that this would change under the Clinton administration, which has sought to negotiate “side agreements” in NAFTA, have thus far not been fulfilled. 26. This is taken from the so-called “Dunkel Draft.” Since the GATT is still being negotiated things may yet be added or retracted from this section, though indications are that it will remain substantially as is. 27. P Mooney, “John Moore’s Body,” New Zrzternationalist,no. 217 (March, 19911, p. 8. 28. The first case involved a scientist, Ananda Chakrabarty, who filed for the first patent on a biotechnological invention in 1972. His application was based upon two points of requested ownership: the tangible microorganism and its possible uses. The patent was finally granted in 1981. In 1988 two scientists at Harvard “invented” and patented the Oncomouse which entailed the insertion of an oncogene into a mouse such that it would develop cancerous tumors. The Supreme Court of the US has stated that anything which results from human activity (inventions) is patentable, including superior life forms. The European Patent Office has also granted a patent on the Oncomouse. 29. ‘Ib be fair, it must be acknowledged that this is a contested fact. Much of the debate will again depend upon definitions. Some argue that somatic plant breeding is not substantially different from genetic modification, that it is only a matter of the degree of sophistication. Others argue, as I have here, that genetic engineering is part of a paradigm shift in process and product. 30. P. Mooney, op. cit. For a full discussion of this case, see A. Kimbrell, The Human Body Shop (San Francisco: Harper-Collins, 1993). 31. This information comes from P Mooney at the Rural Advancement Foundation International and will be published in a forthcoming article in Development Dialogue.