The invention of traditional knowledge

Law and Contemporary Problems

Volumn 70, Issue 2, 2007, Pages 97-124

  Sunder, Madhavi ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 35048894277     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (150)

1. Interview with V.C. Vivekanandan, Professor, Nalsar Univ. of Law, in Hyderabad, India (Dec. 28, 2004).
2. Interview with V.K. Unni, Professor, Nalsar Univ. of Law, in Hyderabad, India (Dec. 30, 2004).
3. Id.
4. No. 48, Acts of Parliament, 1999 [hereinafter GI Act]. The GI Act became effective in 2003. Id.
5. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments - Results of the Uruguay Round, Arts. 22-24, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (2004) [hereinafter TRIPsc].
6. See Pochampally Paves the Way for Local IP Protection, ECON. TIMES, Dec. 19, 2004.
7. See Anupam. Chander, The New, New Property, 81 TEX. L. REV. 715 (2003) (discussing the allocation of property rights in Internet domain names).
8. JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY xiv (1996).
9. James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROBS. 33, 69 (Winter/Spring 2003).
10. See generally James Boyle, Foreword: The Opposite of Property?, 66 LAW & CONTEMP. PROBS. 1 (Winter/Spring 2003).
11. See generally POOR PEOPLE'S KNOWLEDGE: PROMOTING INTELLECTUAL PROPERTY IN DEVELOPING COUNTRIES (J. Michael Finger & Philip Schuler eds., 2004).
12. Id. at back cover.
13. Boyle, supra note 10, at 1.
14. See, e.g., Kal Raustiala, Density & Conflict in International Intellectual Property Law, 40 U.C. DAVIS L. REV. 1021, 1036 (2007) (commenting that protections for geographical indications in the global South "may exacerbate an already troubling erosion of the public domain,").
15. James Boyle, Foucault in Cyberspace. Surveillance, Sovereignty, and Hard-Wired Censors, 66 U. CIN. L. REV. 177 (1997).
16. BOYLE, supra note 8, at xii.
17. Id. at 142 ("If one has the slightest concern for distributional justice in one's criteria for property regimes, this regime must surely fail.").
18. Id. at xiv.
19. James Boyle, A Politics of Intellectual Property: Environmentalism for the Net?, 47 DUKE L.J. 87, 114 (1997). In SHAMANS, SOFTWARE, AND SPLEENS, Boyle wrote: Whether I am right or wrong about the distributional effects, I think it can be convincingly demonstrated that an exclusively author-centered regime will have negative effects on efficiency. In many ways, this may be the more important point to make. To condemn a system as unfair is one thing; to argue that it does not work, that it may sometimes actually impede innovation, is another.
20. Supra note 8, at 127 (emphasis in original).
21. James Boyle, A Manifesto on WIPO and the Future of Intellectual Property, 2004 DUKE L. & TECH. REV. 0009, 11, http://www.law.duke.edu/journals/dltr/articles/PDF/2004DLTR0009.pdf.
22. BOYLE, supra note 8, at 114.
23. Id. at 115.
24. See Pamela Samuelson, The Copyright Grab, WIRED, Jan. 1996, available at http://www.wired.com/wired/archive/4.01/ white.paper∥.html (criticizing the policy of the Clinton administration regarding intellectual property).
25. See generally VANDANA SHIVA, BIOPIRACY: THE PLUNDER OF NATURE AND KNOWLEDGE (1997).
26. See LAWRENCE LESSIG, FREE CULTURE xiv (2004) (arguing that a combination of technology policy and copyright has transformed our "free culture" into a "permission culture" in which creators get to create only with the permission "of the powerful").
27. See World Intellectual Property Organization, Geneva Declaration on the Future of the World Intellectual Property Organization (Oct. 4, 2004), available at http://www.cptech.org/ip/wipo/ futureofwipodeclaration.html (writing that the expansion of intellecual property law's mandate should be from an exclusive focus on "efficient protection" and "harmonization" to "fairness, development and innovation.").
28. The WIPO General Assembly responded to the call, voting that same month to incorporate a "development agenda" into its intellecual property law and policy. World Intellectual Property Organization, Proposal by Argentina and Brazil for the Establishment of a Development Agenda for WIPO, WO/GA/31/11, (Aug. 27, 2004), available at http://www.wipo.int/documents/en/document/govbody/wo_gb_ga/pdf/ two_ga_31_11.pdf.
29. The proposal was joined by a group of ten other countries, which called themselves the "Friends for Development." World Intellectual Property Organization, Proposal to Establish a Development Agenda for WIPO: An Elaboration of Issues Raised in Document WO/GA/31/11, IIM/1/4, (Apr. 11-13, 2005), available at http://www.wipo.int/ edocs/mdocs/mdocs/en/iim_1_4/4.pdf [hereinafter Elaboration of issuesc].
30. The countries were Bolivia, Cuba, the Dominican Republic, Ecuador, Iran, Kenya, Sierra Leone, South Africa, Tanzania, and Venezuela. Id.
31. BOYLE, supra note 8, at 128.
32. For other helpful analyses of the rosy periwinkle controversy see Shayana Kadidal, Plants, Poverty, and Pharmaceutical Patents, 103 YALE L.J. 223, 223 (1993);
33. Srividhya Ragavan, Protection of Traditional Knowledge, 2 MINN. INTELL. PROP. REV. 1, 8 (2001).
34. BOYLE, supra note 8, at 128.
35. Id. at 126 (emphasis omitted).
36. Id. at 142 (emphasis added).
37. Id. at 128.
38. Id. at 128-29.
39. Boyle, supra note 9, at 52.
40. DARRELL A. POSEY, INDIGENOUS KNOWLEDGE AND ETHICS: A DARRELL POSEY READER 161 (Kristina Plenderleith ed., 2004);
41. see also Conference on Environment and Development, Rio Declaration on Environment and Development, Principle 22, U.N. DOC A/CONF.151/26 (Aug. 12, 1992) ("Indigenous peoples and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture, and interests and enable their effective participation in the achievement of sustainable development.").
42. TREATY ON ACCESS TO KNOWLEDGE, pt. 1, Preamble (draft, May 9, 2005), available at http://www.cptech.org/a2k/ consolidatedtext-may9.pdf.
43. Id. at art. 4(1)(b)(iii).
44. See MICHAEL F. BROWN, WHO OWNS NATIVE CULTURE? 55 (2003) (observing that many indigenous "lawyers and activists believe that intellectual property holds the key to heritage protection.");
45. see generally Madhavi Sunder, Property in Personhood, in RETHINKING COMMODIFICATION 164 (Martha M. Ertman & Joan C. Williams eds., 2005).
46. See BROWN, supra note 37, at 43-68 (chronicling efforts by Australian aboriginals to assert collective copyright in Native designs);
47. id. at 69-94 (describing efforts to use trademark and the right of publicity to combat perceived misuse of traditional symbols, such as the image of the revered Indian leader, Crazy Horse, on malt liquor);
48. id. nat 95-143 (noting indigenous responses to ethnobotany patents).
49. Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 CAL. L. REV. 1331, 1335 (2004).
50. See, e.g., BROWN, supra note 37, at 8 ("The readiness of some social critics to champion new forms of silencing and surveillance in the name of cultural protection should trouble anyone committed to the free exchange of ideas.").
51. Chander & Sunder, supra note 39 (discussing how "the romance of the public domain" works to the detriment of poor communities).
52. Id. at 1335.
53. Id. at 1332.
54. Id. at 1354.
55. BOYLE, supra note 8, at 119.
56. See, e.g., id. at xiii (bemoaning intellecual property ownership by corporations that is "so expansive that they make it much harder for future independent creators to actually create");
57. id. at 142 (citing "the utilitarian failures of the current regime.").
58. VANDANA SHIVA, PROTECT OR PLUNDER? UNDERSTANDING INTELLECTUAL PROPERTY RIGHTS 47 (2001). A quarter-century ago, William Cronon helped give birth to the environmental movement with a similar observation of the active role played by Native Americans in cultivating the New England environment, which colonists had deemed "natural."
59. "One must not exaggerate the differences between English and Indian agricultures," Cronon wrote. WILLIAM CRONON, CHANGES IN THE LAND: INDIANS, COLONISTS, AND THE ECOLOGY OF NEW ENGLAND 127 (1983).
60. As Cronon explained, By making the arrival of the Europeans the center of our analysis, we run the risk of attributing all change to their agency, and none to the Indians. The implication is not only that the earlier world of "Indian" New England was somehow static but also that the Indians themselves were as passive and "natural" as the landscape. Id. at 164.
61. SHIVA, supra note 47, at 50.
62. This is the subtitle to Boyle's Shamans, Software, and Spleens, supra note 8 (emphasis added).
63. SHIVA, supra note 47, at 49 (emphasis added).
64. Shiva writes: "Terra nullius has its contemporary equivalent in 'Bio-Nullius' - treating biodiversity knowledge as empty of prior creativity and prior rights, and hence available for 'ownership' through the claim to 'invention.'" Id.
65. Id.
66. Id. at 64.
67. Maureen Leibl & Tirthankar Roy, Handmade in India: Traditional Craft Skills in a Changing World, in POOR PEOPLE'S KNOWLEDGE: PROMOTING INTELLECTUAL PROPERTY IN DEVELOPING COUNTRIES, supra note 11, at 53, 69.
68. J. Michael Finger, Introduction and Overview, in POOR PEOPLE'S KNOWLEDGE: PROMOTING INTELLECTUAL PROPERTY IN DEVELOPING COUNTRIES, supra note 11, at 1, 30.
69. Id.
70. World Intellectual Property Organization, INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE 6, available at http://www.wipo.org/ freepublications/en/tk/920/wipo_pub_920.pdf (last visited Feb. 24, 2006).
71. Id. (emphasis added).
72. Aruna Chandaraju, Modern MYSURU, THE HINDU, Mar. 3, 2005, available at http://www.hinduonnet.com/thehindu/mp/2005/03/05/ Stories/2005030502400300.htm.
73. Id.
74. Id.
75. For a more detailed account of the couple's efforts see Peace Industry, http://www.peaceindustry.com/about.html (last visited Mar. 5, 2007).
76. Finger, supra note 54, at 31.
77. Id.
78. Liebl & Roy, supra note 53, at 70.
79. Id. at 67.
80. Pedro Echeverria, Letter to the Editor, FIN. TIMES, July 5, 2004, at 10 ("Better protecting geographical indications would allow for the localization of productions in the framework of trade globalization.");
81. see also Rosemary J. Coombe, Legal Claims to Culture in and Against the Market: Neoliberalism and the Global Proliferation of Meaningful Difference, 1 LAW, CULTURE & HUMAN. 35, 46 (2005) (warning that geographical indications' may be unduly used to limit competition and exacerbate existing inequalities within groups).
82. See, e.g., INT'L CHAMBER OF COMMERCE, DISCUSSION PAPER, PROTECTING TRADITIONAL KNOWLEDGE 2 (Jan. 2006) ("ICC supports initiatives to help holders of indigenous knowledge use the existing intellecual property system, including through education and studies of ways in which traditional knowledge can be protected by existing rights."), available at http://www.iccwbo.org/uploadedFiles/ ICC/policy/intellectual_property/Statements/ Protecting_Traditional_Knowledge.pdf; Liebl & Roy, supra note 53, at 56 ("The full potential of the role craft traditions can play in the development process, and specifically in the generation of income ... has only recently begun to be appreciated.").
83. Graham Dutfield argues that "estimating the full value of [traditional knowledge] in monetary terms is difficult if not impossible" because it "is often an essential component in the development of other products"; many products derived from traditional knowledge never enter modern markets and thus are not included in GNP calculations; the replacement cost of traditional knowledge would be "quite high"; and the spiritual value of some traditional knowledge cannot be quantified. GRAHAM DUTFIELD, DEVELOPING AND IMPLEMENTING NATIONAL SYSTEMS FOR PROTECTING TRADITIONAL KNOWLEDGE: A REVIEW OF EXPERIENCES IN SELECTED DEVELOPING COUNTRIES 7 (2000). Compare Graham Dutfield, Legal and Economic Aspects of Traditional Knowledge, in INTERNATIONAL PUBLIC GOODS AND TRANSFER OF TECHNOLOGY UNDER A GLOBALIZED INTELLECTUAL PROPERTY REGIME 495, 504-05 (Keith E. Maskus & Jerome H. Reichman eds., 2005) (suggesting that "the global value added to rice yields by use of [Indian] landraces can be estimated at $400 million per year") with Stephen B. Brush, Farmers' Rights and Protection of Traditional Agricultural Knowledge 17 (Int'l Food Policy Research Inst., Working Paper No. 36) (noting there is "no estimate of value or widely accepted method to estimate the value of crop genetic resources developed by farmers").
84. Liebl & Roy, supra note 53, at 54 ("Crafts show tremendous potential in terms of employment generation and poverty alleviation in India. Handicrafts provide a livelihood, albeit modest, to large numbers of poor people in India, and especially to the rural poor."). A recent United Nations Educational, Scientific, and Cultural Organization (UNESCO) symposium concluded, for example, "the industries of the imagination, content, knowledge, innovation and creation clearly are the industries of the future ... they are also important contributory factors to employment and economic growth." Id. at 53.
85. Coenraad J. Visser, Making Intellectual Property Laws Work for Traditional Knowledge, in POOR PEOPLE'S KNOWLEDGE: PROMOTING INTELLECTUAL PROPERTY IN DEVELOPING COUNTRIES, supra note 11, at 213. But the turn to intellectual property for the poor is not simply another instance of a misguided, "if value, then right" mentality. See generally Mark A. Lemley, Ex Ante Versus Ex Post Justifications for Intellectual Property, 71 U. CHI. L. REV. 129, 131 (2004);
86. Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397, 405 (1990). As I argue in Part IV, infra, dismissing these claims on such grounds obscures the ways in which poor people's intellecual property claims present a broader understanding of the purposes and effects of intellecual property law, beyond traditional renderings of intellectual property as incentives alone.
87. Finger, supra note 54, at 35 (emphasis added).
88. Id. at 19.
89. See Jasper Vikas George, Geographical Indications and India, Apr. 3, 2005, http://india.indymedia.org/en/2005/03/ 210197.shtml (urging Indians to seek GI protection of traditional knowledge).
90. TRIPs, supra note 5, at art. 22(1).
91. Id. at art. 22(2).
92. Id. at art. 23.
93. Id. at art. 23(1) (prohibiting use of the GI when the product does not originate "in the place indicated by the geographical indication ... even where the true origin df the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as 'kind,' 'type,', style,' 'imitation' or the like."). The designation "Napa Valley Champagne," for example, even when truthful as to the indication of the product's origin, would be impermissible under the heightened level of protection mandated by TRIPs for wines and spirits.
94. A handful of India's submissions in the WTO relating to TRIPs since 2000 show this. See, e.g., Council for Trade-Related Aspects of Intellectual Property Rights, Communication from Bulgaria, Cuba, Cyprus, the Czech Republic, the European Communities and Their Member States, Georgia, Hungary, Iceland, India, Kenya, Liechtenstein, Malta, Mauritius, Pakistan, Romania, The Slovak Republic, Slovenia, Sri Lanka, Switzerland, Thailand and Turkey, IP/C(W/353 (June 24, 2002) (focusing on "protecting all geographical indications equally");
95. Council for Trade-Related Aspects of Intellectual Property Rights, Proposal from Bulgaria, Cuba, the Czech Republic, Egypt, Iceland, India, Jamaica, Kenya, Liechtenstein, Mauritius, Nigeria, Pakistan, Slovenia, Sri Lanka, Switzerland, Turkey and Venezuela, IP/C/W/247/ Rev.1 (May 17, 2001) ("The TRIPS Agreement does not provide sufficient protection for geographical indications of products other than wines and spirits.");
96. Council for Trade-Related Aspects of Intellectual Property Rights, Communication from India IP/C/W/196 (July 12, 2000) (proposing that "additional protection for geographical indications must be extended for products other than wines and spirits").
97. GI status for basmati rice is controversial because its production is not limited to any particular geographical region in India. Country-wide recognition may also qualify, however. The European Patent and Trademark Office, for example, recently upheld Greece's GI in feta cheese after a decade-long battle with other European countries. Stéphanie Bodon, The EU Feta Debate Concludes, MANAGING INTELLECTUAL PROPERTY, MIP WEEK, Oct. 31, 2005,' available at http://www.managingip.com/?Page=9&PUBID=198&ISS=20643&SID= 594780&SM= &SearchStr=GI.
98. 3, 59 STAN. L. REV. 257 (2006).
99. The Indian GI Act defines "geographical indication" in relation to goods as an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.
100. Geographical Indication of Goods (Registration and Protection) Act of 1999, No. 48, Acts of Parliament, 1999 § I-1(3)(e).
101. The cost to renew a GI is 3000 rupees. The Geographical Indication of Goods (Registration and Protection) Rules, 2002, The First Schedule, 4A. Once approved, GIs and all producers and authorized users of the GIs are listed in a national register. Geographical Indication of Goods Act §II-5-6. Registration lasts for ten years and is renewable "from time to time" for periods of an additional 10 years. Id. § III-18.
102. Id. § III-11(2).
103. Geographical Indication of Goods Rules § Form GI-1.
104. Geographical Indication of Goods Act § IV-21(1-b).
105. Id. § IV-24.
106. See Liebl & Roy, supra note 53, at 65 (asking "[a]nd what happens when a weaver from another part of India moves to Kanjeevaram," famous for its silk sarees?).
107. See, e.g., Madhavi Sunder, Cultural Dissent, 54 STAN. L. REV. 495, 504 (2001) (urging assurance that "legal efforts to counter globalization and modernization do not buttress the hegemony of cultural elites and suppress efforts by cultural dissenters to gain autonomy and equality within their cultural context");
108. Madhavi Sunder, Intellectual Property and Identity Politics: Playing with Fire, 4 J. GENDER, RACE & JUST. 69, 70 (2000) (discussing "the new centrality of struggles over discursive power - the right to create, and control, cultural meanings"); see Coombe, supra note 66.
109. See Elizabeth Povinelli, At Home in the Violence of Recognition, in PROPERTY IN QUESTION: VALUE TRANSFORMATION IN THE GLOBAL ECONOMY 185, 185-206 (Katherine Verdery & Caroline Humphrey eds., 2004) (describing pressure on indigenous peoples to present their communities as "a synchronic structure" that comports to legal requirements for land based on colonial notions of authentic difference).
110. See generally Rosemary J. Coombe et al., Bearing Cultural Distinction: Informational Capitalism and New Expectations for Intellectual Property, in INTELLECTUAL PROPERTY LAW: ARTICLES ON CROSSING BORDERS BETWEEN TRADITIONAL AND ACTUAL 193, 193-213 (F. Willem Grosheide & Jan J. Brinkhof eds., 2005);
111. Cristina Grasseni, Packaging Skills: Calibrating Cheese to the Global Market, in COMMODIFYING EVERYTHING: RELATIONSHIPS OF THE MARKET 259 (Susan Strasser ed., 2003) (describing commodification of tradition in the context of local cheese production in Europe).
112. COMM'N ON INTELLECTUAL PROPERTY RIGHTS, INTEGRATING INTELLECTUAL PROPERTY RIGHTS AND DEVELOPMENT POLICY 90 (2002). Cf. Kal Raustiala & Chris Sprigman, Eat, Drink and Be Wary: Why the U.S. Should Oppose the WTO's Extending Stringent Intellectual Property Protection of Wine and Spirit Names to Other Products, FINDLAW, Dec. 12, 2002, http://writ.news.findlaw.com/commentary/ 20021212_sprigman.html (highlighting free-speech concerns posed by heightened GI protection).
113. See DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION 334 (1997) (describing his own "loss of faith" in rights as always producing positive outcomes for the disempowered). Kennedy advocates a critical stance toward the discourse of rights but does not abandon rights altogether. Id. Cf. Daria Roithmayr, Left Over Rights, 22 CARDOZO L. REV. 1113, 1113-34 (2001) (arguing for pragmatic use of rights arguments by communities of color).
114. See Douglas A. Kysar, Preferences for Processes: The Process/ Product Distinction and the Regulation of Consumer Choice, 118 HARV. L. REV. 525, 529 (2004) (noting that "consumer preferences may be heavily influenced by information regarding the manner in which goods are produced").
115. Finger, supra note 54, at 3.
116. See generally Light Years IP, http://www.lightyearsip.net (last visited Mar. 5, 2007) (recognizing that "within the last two decades, intellectual property has rapidly become the central means to create wealth in almost all industries," and that "[t]here is an urgent need to increase knowledge and capability in developing country producers, exporters and government managers in the tasks of assessing intangible value opportunities, identifying IP solutions and implementing them.").
117. Jennifer Allen, Superflex: Rooseum - Reviews: Amsterdam - Bjornstjerne Reuter Christiansen, Jakob Fenger, and Rasmus Nielsen, ARTFORUM, Feb. 2003, http://www.findarticles.com/p/articles/ mi_m0268/is_6_41/ai_98123170 (last visited Feb. 24, 2006).
118. Anupam Chander, Illegal Art? The Artists' Group Superflex Co-Opts Global Trademarks, FINDLAW, May 13, 2004, http://writ.news.findlaw.com/commentary/20040513_chander.html;
119. Anupam Chander, Guaraná Power to the People, SUPERFLEX.NET, May 2004, http://www.superflex.net/guaranapower/ main.php?page=strategy&id=2.
120. AMARTYA SEN, DEVELOPMENT AS FREEDOM 14 (1999).
121. General Assembly Decision on a Development Agenda, Oct. 4, 2004, available at http://www.cptech.org/ip/wipo/wipo10042004.html.
122. Geneva Declaration on the Future of the World Intellectual Property Organization, Oct. 2004, available at http://www.cptech.org/ip/ wipo/futureofwipodeclaration.pdf.
123. See Sunder, supra note 80.
124. 537 U.S. 186 (2003);
125. see id. at 254 (saying of the Copyright Term Extension Act of 1998, "no one could reasonably conclude that copyright's traditional economic rationale applies here") (Breyer, J., dissenting);
126. id. at 257 ("in respect to works already created ... the statute creates no economic incentive at all") (Breyer, J., dissenting);
127. id. at 263 ("There is no legitimate, serious copyright-related justification for this statute.") (Breyer, J., dissenting);
128. see also Eldred v. Ashcroft, Amicus Brief of George A. Akerlof, Kenneth J. Arrow, et al., filed May 20, 2002, at 2 (statement of leading economists, including five Nobel Laureates, arguing that "[t]he term extension for existing works makes no significant contribution to an author's economic incentive to create").
129. 545 U.S. 125 (2005);
130. see also Sunder, supra note 80 (arguing that Grokster turned on the common-law principles of fairness and morality, not economic efficiency).
131. See generally TIM BERNERS-LEE, WEAVING THE WEB (1999) (recounting Berners-Lee's successful effort to convince his employer, CERN, to forgo intellecual property rights in his invention).
132. The question is by no means new. See, e.g., Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, HARV. L. REV. 281, 281-82 (1970) (suggesting that a working wage, possibly supplemented by government subsidies for expressive works, may be sufficient incentive for sufficient expressive works).
133. See COMM'N ON INTELLECTUAL PROPERTY RIGHTS, supra note 90, at 22 (2002) ("(I]n most low income countries, with a weak scientific and technological infrastructure, IP protection at the levels mandated by TRIPS is not a significant determinant of growth. On the contrary, rapid growth is more often associated with weaker IP protection.");
134. Peter Drahos, Introduction, in GLOBAL INTELLECTUAL PROPERTY RIGHTS: KNOWLEDGE, ACCESS AND DEVELOPMENT 1, 1 (Peter Drahos & Ruth Mayne eds., 2002) ("[G]lobal intellectual property rules may well be an obstacle to development.");
135. Martin Khor, Rethinking Intellectual Property Rights and TRIPS, in GLOBAL INTELLECTUAL PROPERTY RIGHTS: KNOWLEDGE, ACCESS AND DEVELOPMENT 201, 205 (Peter Drahos & Ruth Mayne eds., 2002) ("The one-size-fits-all, or rather one-standard-fits-all, approach of TRIPS is a great disservice to developing countries.").
136. See, e.g., Elaboration of Issues, supra note 26, ¶ 21 (clarifying "that the development dimension of intellectual property is NOT the same thing as technical assistance."). An Indian representative to WIPO put it this way: 'Development' in WIPO's terminology means increasing a developing country's capacity to provide protection to the owners of intellectual property rights. This is quite the opposite of what developing countries understand when they refer to the 'development dimension'.... The real 'development' imperative is ensuring that the interest of Intellectual Property owners is not secured at the expense of the users of IP, of consumers at large, and of public policy in general. Inter-Sessional Intergovernmental Meeting on a Development Agenda for WIPO, Statement by India, IIM/1 (Apr. 11-13, 2005)
137. Amartya Sen, A Decade of Human Development, 1 J. HUMAN DEV. 17, 21 (2000).
138. See generally SEN. supra note 97.
139. Id.
140. INDIAN NAT'L COMM'N FOR WOMEN, IMPACT OF WTO ON WOMEN IN AGRICULTURE: A REPORT BY RESEARCH FOUNDATION FOR SCIENCE, TECHNOLOGY & ECOLOGY (2005).
141. U.N. Div. for Pub. Admin. & Dev. Mgmt., Dep't of Econ. & Social Affairs, Report. Understanding Knowledge Societies, xi, U.N. Doc. ST/ESA/ PAD/SER.E/66 (2005). UNESCO, for example, emphasizes the importance of both "access to information" and "capacity building." UNESCO's focus on the latter consists of "providing people with the skills and abilities for critical reception, assessment and use of information in their professional and personal lives." UNESCO Home Page, http://portal.unesco.org/ci/en/ ev.php-URL_ID=19487&URL_DO=DC_TOPIC&URL_SECTION=201.html (last visited Feb. 20, 2006).
142. U.N. Div. for Pub. Admin. & Dev. Mgmt., Dep't of Econ. & Social Affairs, supra note 111, at xi.
143. This discussion is adopted from Sunder, supra note 80.
144. TREATY ON ACCESS TO KNOWLEDGE, supra note 35, at art. 4(1)(b)(iv).
145. SEN, supra note 97, at 11.
146. Id.
147. Id. at 28.
148. Id.
149. Of course, understanding the importance of access to knowledge, in the form of both products and processes, will also provide new rationales for limiting intellecual property rights. For example, compulsory licenses for third-world development of life-saving drugs enhance the public domain, at least when the public domain is understood as "[r]esources for which legal rights to access and use for free (or for nominal sums) are held broadly." Chander & Sunder, supra note 39, at 1338.
150. SEN, supra note 97, at 7.