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Unnatural Acts | The Nation

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Diary of a Mad Law Professor

Unnatural Acts

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By now, it has become something of a media cliché to watch "fringe" protesters jumping up and down from the edges of G-8 conferences held at ever more remote locations. But the degree to which market ideals have gained supremacy in all spheres, from crime to health insurance to family relations, should be of greater social interest. This shift has resulted in the privatizing of some traditionally public functions without regard for art or idealism, custom or sentimentality, culture or locale.

About the Author

Patricia J. Williams
Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in Boston in 1951 and holds a BA from...

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When we contract out military operations, misbehavior of the subcontractor technically shifts from state action to transaction cost. When states "outsource" the prison industry, local oversight is sacrificed as prisoners in one state end up farmed out to more cost-efficient facilities in another. When unions sue for better working conditions or gender equality, manufacturers relocate. Private companies, after all, are not responsible for upholding civic virtue or community values. The primary duty of any profit-seeking entity is toward shareholders--the bottom line rather than the common good.

Consider the tension between government and corporate control of licenses, patents and usages when the commodity is information--whether words or images or genetic patterns. In an era of biotechnology--to say nothing of bioterrorism--this arena portends battles for control that may be as unsettling as anything the oil wars have unleashed. Everywhere there are debates about our ability to alter the environment or the gene pool in dramatic, irreversible ways. Some companies want to farm fish genetically engineered to grow 200 to 300 percent faster than the norm. How do we govern the potential consequences of such giant specimens interbreeding with their indigenous cousins? This is not merely an issue of how to regulate industrial impact on the environment. It is also one of whether and how to limit corporate ownership of the environment. A recent decision by the Supreme Court of Canada has sent tremors through the legal community for precisely such revolutionary implications. In Monsanto Canada Inc. v. Schmeiser, the justices set a global precedent by granting broad proprietary rights in a living organism--and its progeny.

Percy Schmeiser is a canola farmer in Saskatchewan. In 1997 he sprayed a common weedkiller called Roundup on three acres of his property. He noticed that some of the canola plants were resistant to the herbicide. He collected the seeds of those plants and used them to plant 1,000 more acres. It turns out that the Roundup-resistant plants were derived from a genetically altered strain developed and patented by Monsanto. Under the terms of Monsanto's license, farmers who purchase the seeds are not permitted to collect and replant seeds from what they grow. Rather, they must repurchase seeds each season so as to more effectively permit Monsanto to recover its enormous research and development costs. Schmeiser, however, had never purchased seeds from Monsanto; he simply found the plants growing on his land, either because the seed had blown in from neighboring farms or been dropped by passing trucks. Nevertheless, the court upheld Monsanto's claims of patent infringement and required Schmeiser to pay a licensing fee and hand over any remaining seeds in his possession. "The patented genes and cells are not merely a 'part' of the plant," ruled the court, but extend to the "entire physical structure" including subsequent generations of the plant.

The complications of this case raise questions about the ethical balance we face in unsettled times. As in the Industrial Age, new technologies bring shifts in accumulated power such that surpluses or shortages of vital resources pit long-term common values against immediate self-interest. The Monsanto case, if it's a signal of things to come, represents a shift from government rules that grant landowners power over everything that grows "naturally" upon it. It makes us question the balance between human control and the heretofore ungovernable forces we deemed natural. It significantly diminishes the legally subsidized sweat equity traditionally assumed when farmers planted their fields and culled the seeds of their crops, the fruit of their labor.

Those assumptions are important because they so profoundly define us. We need to have a much more mainstream conversation about this radical dimension of new and emerging property notions. What does it mean to own the processes of biological reproduction so completely? What standing does citizenry have against or in addition to the interests of private parties to particular contracts? Has the value of physically taming nature (i.e., farming) become utterly subservient to the microengineered taming of nature (i.e., research and development in a laboratory)? Does this reassignment of value and agency create a global monopoly of food production, wide as fish may swim or wind may blow? Is there a remediable property loss beyond what will be litigated in now-privatized licensing cases? Does this newest frontier ultimately destabilize the notion of a work ethic ennobled by physical labor--the very premise of our current free enterprise system--and replace it with the definitive dominance of knowledge elites? The common man becomes rather too literally encumbered by hoarded genetic endowments.

Of course, these are not new tropes, but it is in transformative times like these that we see how much of what we think of as the freedom of nature is in fact a comfortable fiction insured by collectively reasoned (and therefore deemed fair) allocations and distributions of government-held power. If we are in a moment when governments are ceding much of that power to other monopolistic entities, whether in war, medicine, manufacturing or agriculture, we should make sure we have the chance to debate openly our desire to retain the not-always-efficient rights of citizenship in an apparently fast-emerging corporate order. The Monsanto case was reported on the business page of only a few newspapers in the United States. It ought to be of major political concern for us all.

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