Above: The media never resists stories of sea attacks, but
there is another type of piracy that hardly gets attention:
the looming intellectual property warfare in Africa.
Publisher’s Note: This week we have feature opinion piece on
piracy, patenting, and intellectual property in the developing
world by contributing writer Nemo Semret.
Nemo Semret, who is based in New York City, is an individual
who is concerned about the expanding scope of intellectual
property among many other things.
Tadias Magazine
By Nemo Semret
Published: Sunday, January 31, 2010
New York (Tadias) – A few months ago, three Somalis pirates were at the center of world news as they haplessly tried to extort money from an American ship in the Indian Ocean. Three guys coming out of an anarchic isolated part of the world, risked their lives at sea. Two were killed and one now faces the death penalty in the US. Around the same time, three Swedes were found guilty of piracy — as in facilitating the sharing of copyrighted material on the Internet. In the widely publicized case of The Pirate Bay, a Bittorrent index service, three techies with the digital world at their fingertips, thumbed their noses at the law and faced, at worst, some time in the notoriously comfortable jails of Sweden.
The obvious analogy and contrast between these two stories is of course an easy target of ironic comment: piracy, old/new, physical/digital, poor/rich. But it also got me thinking about longer term connections. Indeed, which of those two events is more important symbolically for the future political economy of Africa? Which has more to do with the price of injera or ugali?
Armed men attacking ships at sea was a curious manifestation of the 18th century popping up in the 21st century. Western media and comedians in particular reacted to it as they would to a woolly mammoth buried in the permafrost of Siberia for 10,000 years suddenly thawing and starting to ramble around, Jurrassic Park-style. A pirate story is hard to resist, pirates captivate the imagination of kids, they make western adults feel smug about their own “more civilized” society where such things disappeared 200 years ago, but they also have a kind of radical chic, there’s a certain coolness to their image as rebels standing up to “the man”. They are many interesting things, but there’s also a less exotic reality: those pirates are increasing the cost of shipping anything through that part of the Indian Ocean, which in turn affects the cost of everything from food to energy in Somalia, Djibouti, Ethiopia, Kenya, Tanzania and even further inland, endangering the livelihood of millions of people in the region. Like drug traffickers, in reality they harm not only the world at large but mostly their own people. Unfortunately there’s nothing new about that. In fact, the story of Somali pirates over the last few years fits with the well-worn gloom and doom scenarios of Africa in the 21st century: failed states, increased marginalization, the danger of slipping into a modern dark ages, etc. you know the story.
But how about those Swedish Internet pirates? What do they have to do with Africa, where copyrights and patents have never been respected, and where there isn’t enough bandwidth for it to matter on the global scale anyway? A lot actually. It has got to do with something huge that is quietly reshaping the world: the ever expanding scope of intellectual property. Ok, just in case that was not emphasized enough, this is the thing we’re talking about: the expanding scope of intellectual property. The digitization of entertainment and the difficulties that industry faces from file-sharing are merely the tip of the iceberg. By now it’s old news that, thanks to technology, things that were previously easier to limit and control are now easy to copy and share. But also and more importantly, many things which previously were “free” are now going to get entangled in webs of patents, copyrights, trademarks, and so on. And now we are entering the phase where this will profoundly affect the lives of all of humanity, not just the world of computers and information.
Digital coffee – a trip down memory lane
Years ago (”Digital Coffee”, Nov. 1999), I tried to make the link between coffee and intellectual property, using a comparison of buying $1 of Starbucks stock versus $1 of coffee on the commodity markets. So let’s see where we are today with that hypothetical $1. As illustrated in the chart, invested in SBUX stock in 1993, it grew to $6 by 1999, and would be worth $15 in 2009. While the poor dollar invested in coffee itself, which had reached $1.30 in 1999, would continue to inch up, reaching $1.75 by 2009. The conclusion that, if you consider the chain of value that leads to a cup of coffee, “at the end of the chain it’s $100 a pound, while on the commodity markets it’s $1 a pound, and the grower probably gets $0.10”, has been exacerbated. The coffee farmer, despite doing the most difficult part, gets a shrinking share of the total value. Most of the value in the final product of coffee is really information; it’s in the distribution, and marketing of the coffee experience. That “information goods” part of coffee, which is intellectual property even if it’s not rocket science, is worth more and more while the physical commodity is worth relatively less and less. (That doesn’t happen with oil because there’s a finite supply). And it’s a huge market as I pointed out then, coffee is second only to oil among the world’s commodities in total value. Therefore the producers needed to figure out ways of get in on the information goods game.
Fortunately, awareness of this reality has increased dramatically in recent years. For example, a movie called “Black Gold ” brought some attention to the plight of coffee farmers in the global economy. The Ethiopian Intellectual Property Office engaged it in earnest, staked a claim in the digital coffee realm by trademarking some of the Ethiopian coffee names. Starbucks correctly identified this move as encroaching on their territory (the “information goods” side of coffee) and this caused a huge battle which was widely covered. With the help of organizations like Oxfam, the EIPO managed to move the battle to the court of public opinion. Thus Starbucks an extremely successful western corporation of whose brand “social responsibility” is a core part, whose customers are the very stereotype of the bleeding heart liberal, found itself in the position of the big bad exploiter of poor third world farmers. It was a strategy worthy of Sun Tzu’s Art of War: if you are a smaller, move the battle to a territory where your enemy’s superior firepower is worthless. Game over. Starbucks capitulated, and EIPO got not only the trademarks, but a promise from Starbucks to help the country in more ways than before. My hat goes off to EIPO and Oxfam for this.
Would you rather collect rent or charity?
But coffee is only one example. A dutch company called “Soil & Crop Improvement BV” is patenting a method of processing of teff flour. The invention results in a gluten-free flour, which helps people with Celiac disease. Celiac is a common genetic disorder, affecting people all over the world. For example in the United States, more than 2 million people have the disease. The disease makes the victim unable to eat gluten, a protein that is found in wheat, rye, and barley, which covers a pretty large fraction of the typical western diet. Thus gluten-free food has a huge market. Sounds like there might be a lot of money to be made from Teff!
So let’s see what this patented invention consists of. As far as I can tell, it has two main ideas. First, you wait a few weeks after harvest before grinding the teff, so that the “the amount of undigested sugars in the starch” is lower than it would if the grain was ground immediately. Second, you pass it through a sieve, so only the small grains go through. Pretty simple stuff. Which of course is good! Saving lives is great, and simple solutions that save lives are the best. Except the whole patenting thing… You see, there’s this thing called “prior art”. In the many centuries since Teff has been the staple in Ethiopia, surely someone had the idea of waiting a few weeks before grinding it and taking the finer grain! But those ideas now belong to a dutch company, because the Netherlands has the intellectual property infrastructure that Ethiopia doesn’t. The winner is determined not necessarily by an actual innovation but by things like having patent offices, and membership in the World Traded Organization. So if this works out and it turns out that 100 million Celiac disease sufferers will switch to a Teff-based diet, the bulk of the profits will flow to the dutch company, not the Ethiopian teff farmer. Sound familiar? SBUX redux. Except in this case it might even go further. It’s not “just” a marketing and distribution advantage which gives a larger slice of the total value, the patent owner can actually bloc the farmer entirely out of that market!
Now there’s nothing particularly evil about Soil & Crop nor is there about Starbucks. In fact, for what it’s worth, they both seem to try to be “socially responsible” corporations. But there’s a big difference between charity and obligation. Suppose you own a house and a tenant came to you and said: “let me take your house and in exchange, each month that I earn more than I spend, I promise to share some the excess to help your kids go to school, and buy you some gifts” You’d say: “Wow, thanks you are very generous Mr. Potential Tenant. But no thanks, here’s a lease, just sign here and pay me the rent.” Right? In other words, you would prefer to have a profitable business relationship with them, rather than accept their charity. So why, when it comes to multi-billion dollar markets for living products that are indigenous, why should it be considered OK that companies can own the brand, the patents, and all the associated information goods value, thus controlling 90% of the final value, while tossing the original owners a few crumbs of charity? Why is enough for them to make the profits and “give back” on a discretionary basis? Shouldn’t they pay rent instead of give charity? So perhaps the “digital coffee” conclusion didn’t go far enough. Now commodities are not just becoming information i.e. controlled by branding and marketing, they are becoming intellectual property, through copyrights and patents too. But who owns this property and who should own it?
Even the birds and the bees
This question affects more than just the potential export markets. The owners of the intellectual property can actually come and extract money even from people who were doing the same thing they’ve been doing before the patent ever existed! For example, in a famous case, some farmers in Canada are forbidden from growing crops that they use to grow — rapeseed (canola) — because they might accidentally mix patented seeds into their crops. Even if they don’t want to use the new seeds and try to avoid it, because birds and bees (and wind among other things) will accidentally mix seeds over large distances, the farmers will infringe on these patents that belong to Monsanto and have to stop…. even though they are only doing the same thing they did before the patent. They have effectively been check-mated out of their own traditional business.
You might think that could never happen in Africa right? The very idea of enforcing a patent against a farmer in rural Africa seems laughable. But think ahead. Intellectual property is a key condition to participating in World Trade Organization and the international community in general. Even China is being forced to do something about copyrights to please the WTO. Not being part of WTO is a huge handicap, and Ethiopia is trying hard to get in, like any country that wants to be part of the world economy. So at some point, it’s quite possible that Ethiopians could find themselves in the position of having to choose between accepting the established intellectual property system under which they are screwed, or rejecting the system at enormous costs i.e. going the pirate route.
Which brings us back to our Swedish pirates. Putting aside their guilt or innocence, they exist because a huge number of people feel locked out of the “information goods” and these people create an enormous black market for copyrighted movies, music, and software. And bittorrent, the protocol their service facilitates, just happens to be the most efficient current form of file sharing, so they are current poster children, the latest incarnation of Napster, in the on-going saga of intellectual property on the Internet. But it’s not just pirates. The world of property in information is a dangerously unstable one even among the big players. A long time ago, a researcher from IBM explained the world of corporate patents to me as follows. Patents are like nuclear weapons, they don’t want to use them but they have to have them because their opponents have them. They hold them as deterrents, they sign patent “treaties” where they agree not to sue each other and cross-license patents to each other. But sometimes they actually use these “nuclear weapons” i.e. they sue: vast sums of money are extorted, untold hours of effort are expended in futile wars, and companies are driven out of business, etc.
So if things like coffee and teff are going to become information goods, then what kind of world are we heading into? If you extrapolate from other areas where intellectual property dominates, namely software, digital entertainment, and pharmaceuticals, the current trends do not bode well for the vast majority of humanity. It’s a world where the rich get richer and the poor get poorer, much faster than what has occurred with physical commodities over the last couple of centuries. Those who are locked out of the web of intellectual property ownership will be like non-nuclear powers in a nuclear world, except the super-powers won’t be a stable pair, it will be a multi-polar unstable world, with constant threats and actual disastrous fallouts… and of course pirates! Imagine a world of patented food, and the inevitable black market like narcotics today but much much bigger.
But are we really heading toward this dystopian future of bio-patent wielding powerhouses dominating the world, alternately fighting each other and enslaving the rest? Well of course not necessarily. Fortunately, some farsighted people are already on the case some scientists are calling for a bio-patent ban for example. One of them in fact is an Ethiopian. These are scientists, so of course they are not against scientific advancements and their practical use; they are protesting some forms of ownership. Maybe there will be open-source bio-technology and pharmaceuticals, that are as successful and significant as open source software, and all the key processes and ideas of future life will be freely or fairly available to the whole world. But maybe not. What if that open-source nirvana fails to occur? Banning bio-patents may not be the right answer anyway. Until the right balance emerges in this “informationalization” of everything, all sides have to arm themselves to the teeth for intellectual property warfare lest they be marginalized and reduced to piracy. We are probably already in the early stages of a mad scramble, just like the scramble for African raw materials during the industrial revolution/colonial era. Now it’s not grabbing land with timber and gold but about claiming as much as possible of the DNA of plants and animals, patenting potentially lucrative variations of traditional processes… In the case of Ethiopia for example, it’s not just coffee and teff, it’s also (to take random example, I’m sure there are many more) flaxseed, an important source of Omega-3 acids. Hey has anyone filed a patent for a process to create a convenient form of Telba?
Hope poor countries wake up and start establishing patent and intellectual property protection structures in par or better than which exists in the West. Like Ethiopian Airlines. And these offices can not be staffed with ignorant political cadres. Otherwise, we will be screwed again. This is a brilliantly weaved together and forward looking article. The intellectual property issue will no doubt become one of the most important issues for third world countries in the 21st Century. Thank you Nemo and Tadias for this well informative and eye opening piece. I am glad that Africans are blowing the traupmet in advance of the crisis.
What a scary scenario indeed! Multinational corporations like ‘Monsanto’ have done harm to many farmers worldwide in regards to “rights of seeds” for example. This move by the Dutch company is obviously wrong and will lead to a dangerous road between Ethiopia and the Netherlands, but what can we as individuals do to prevent the worst from happening.
Thank you Nemo Semret for this wonderful article.
Nemo’s Article is very interesting. I am heavily involved in the teaching of IP in developing countries, in particular Africa, through my work at the World Intellectual Property Organization. I would simply like to encourage Nemo to keep up the awareness. The problem, in my humble view is knowledge and capacity in the African region. There is (one area of the patenting system that the article might not have addressed accurately) – such as farmers not being able to continue to do what they have done for generations. One of the requirements of a patent is novelty and if something is not novel it can’t be patented, however it is true if the patent office is not as knowledgeable, or examination procedure is not in place- of the existing practices and if there is no opposition, a patent may be issued. The burden of proof is on the one that practiced before- to prove his method existed prior to the grant of the patent. But patent owners often know what existed before and rarely go after such sources. The key is in the opposition procedure. To oppose patents (as was done in Neem extract for kidney disease) when they are filed, and following the patent gazettes. This was done by an Indian company in the mentioned case and a patent can be revoked even after having been granted. In some countries such as the US- only previous knowledge that existed in the US is what is relevant (but if published internationally it may be considered non-novel). To be brief ( farmers not being able to continue to do what they have done for generations may not be accurate). I agree with Nemo’s point that to expect our African brethren farmers, and engineers would be futile- prohibitive cost of energy and time- so the alternative is education and government investment. Even EIPO without the pro-bono assistance from a US law firm and marketing machine of Oxfam would not have gone as far as it did. Even in this case, the long term effect of the price is not evident as coffee is a highly substitutable product and commodities are best at substituting when prices go up. Economics has relied on the principle that buyers will always look to maximize their profit. The recognition that there is a different kind of economic reality which set in since the 1990’s was the hope that EIPO and evidently Oxfam supported. The fact that the final consumer has been sensitized and is knowledgeable about sources of coffee (helped by names- which we have to admit Starbucks and others helped in educating average consumers). This is why EIPO is offering ‘free licensing’ and honing on partnerships that work both ways- a little higher price for a special coffee and free use of the name. It will be seen if this approach will work- and certainly EIPO was standing on the principle that it is Ethiopian. The reality is, even if our coffee is very good and well liked, the market is saturated by substitutable coffee and the specialty market has been the focus of EIPO. My premise is therefore, the intellectual property system is not absolute, it is a balance of the many factors. Depending on the level of dependency that the new technology, or product, or trademark (intellectual property) on one source (in particular in long value chains), the return cascades by way of royalty, ownership, supporting technology, prior technology etc…With regarding to patenting- there are many who think that patenting- in addition to the three (commonly accepted) conditions- novelty, industrial applicability, inventive step- the patent system should include ‘disclosure of source’. Many Latin American, Asian, African, and some European countries are supportive of this. The debate is on the cost of adding such a requirement if there is no financial value. If there is financial value, then developing countries have to also start investing on protecting their sources. There is an opposing argument that ‘everything comes from something’ and this has always been the case. The mid-way argument is that once invented (for those patents that source from developing countries) a technology- transfer scheme should be agreed upon. For names of geographical significance (with trademark value), the intellectual property system has what is called- trademarks and geographical indications. There are many- in particular European countries who argue that a list of geographical names should be exchanged among countries depending on their commercial significance and an international register has been established but not many have joined it, including Ethiopia and US and Netherlands. It is a slow process, but I so much appreciated Nemo’s article for its awareness value and its perceptive points- thanks Tadias.
To follow up on Daniel’s comment:
A certain company has caused the EPA to grant it the exclusive right to use herbicides in the cultivation of teff. Check the Oregon dept of agriculture and its enforcement of the company’s dictates and the EPA registration of herbicides for teff crops.
This means that no weed control except the chemical of this company can be used to restrain weeds in teff crops. This was accomplished by having Epa define teff, against all logic and botanic reality, as NOT a grain and NOT a grass, which just happens to agree with the company’s definition.
The only legal choice left is to weed by hand.
Since the chemical in question kills teff you might say so what? Well, what happens when the company introduces genetically modified teff, also under its patient?
This will result in absolute control of this Ethiopian crop by this company
This is one of the most intellectually stimulating stories on intellectual propriety that I have read in sometime. Nemo, I appreciate your research and bringing it to our attention. Unlike the scramble for Africa during the industrialization age, where European countries literally took over the continent in order to facilitate maximum profit while milking the people of its natural resources and raw material, the information age is manged at the speed of the Internet. But unlike the old ages, today we are lucky to have a robust and increasingly smart diaspora who is tuned into these matters. The question is: will Africa ever learn how to be in the game early? For example for Ethiopia alone, this could be a matter of life or death, charity or collecting rent on its vast natural resources beyond coffee, gold, teff, telba, atefaris (weed), quat, damakese, etc.
Nemo Semret, I cannot express to you how much I welcome this article. Thank you. I do however have reservations about the juxtaposition of violent and non-violent pirates.
I recommend this video from the BBC’s “HARDtalk” from 2003: http://news.bbc.co.uk/olmedia/cta/progs/02/hardtalk/egziabhe03dec.ram
(keep in mind when watching the video that Dr. Tewolde Gebre Egziabher is not there as a political apologist but as a vigilant SCIENTIST with social/environmental concerns.)
Perhaps if you do a follow-up to this article in a longer form you might consider the effects of mono-culture (http://aboutbiodiversity.org/agbdx/cornblight.html) as a result of the seed monopoly and its potential cataclysm as was evidenced in Ireland (http://aboutbiodiversity.org/agbdx/eireblight.html)
Cheers, Kudos and Gobez
p.s. Rob: please provide me with more details such as this company’s name etc..
Two years ago I came across the web site of the company, Soil and Crop, and I was amazed when I found out about the production of Teff in Holland. At the same time a group activists “awarded” the Captain Hook Award for biopiracy to the same company as it was in the process of applying for both patents and plant breeders’ rights on teff and teff products.So, I got curious and send my inquiry to the director of the company about their dealings of the intellectual right.Kindly,he replied that some percentage of the profit goes to the farmers,which I don’t belive was happening.Again I tried to investigate for a while to no avail. So,I wrote the issue for a local newspaper but no one seemed to be aware of the danger.
I still remember on one of the ads for the energy bars made out of teff Haile G/Selassie’s photo was posted.Imagine they took our teff and they are also making money out of our athletes!How thief can one get!Here I would like to say we(Ethiopians) should make people be aware of the facts. AS far as I know no one in Ethiopia is discussing about intellectual property rights.Ironically, few months back it was mentioned on a local radio station that teff is being produced in the US as something remarkable.
The government is not saying anything,obviously unless an outsider is lobbying for us after the harm is done(OXFAM-Starbucks).
I would like to suggest for those people who read this forum or anybody who is concerned about what’s happening in poor countries like Ethiopia,to join up hands and raise the issue to create awareness. At least before the negotiation process of WTO accssion ends for Ethiopia.
We all know what happened to Mexico’s Enola bean and Basmati rice of Pakistan & India the patent right now owned by big US companies.
I’m relived that Nemo has raised the issue and I urge you all let’s do something before its too late and don’t let those greedy big companies get hold of our TEFF.
Many thanks to Nemo for producing such an interesting article. I am proud to hear from such concerned patriotic Diaspora. Could you please identify the relation between Soil and Crop visa vi the named Holland company Health & Performance Food International bv. I am looking for your prompt reply.
Dear Abdissa, sorry but I don’t know what the relationship is between those two dutch companies, if any. If you have more information, please share.
Thanks to all the commenters above for the kind words and wonderful insights.
@ Altaye Tedla – It has been two years since you wrote the reply, but I am also involved in the teaching of intellectual property. I am currently working on research project and I wanted to discuss more about what the WIPO is doing in the area. It would be great if you could we get in touch some how.
@ Nemo Semret – Thank you very much for such an interesting article. I would love to look at any documents you may still have on the issue. Thanks!
I’ve been doing some research on the issue (as part of a bigger article) and I’ve come to understand that the company Health & Performance Food International bv was the original name of the company that entered into contract with the Institute of Biodiversity Conservation and the Ethiopian Agricultural Research Organization. The name was latter on changed to Soil and Crop Improvement BV but the later company has also gone bankrupt at this point as far as I know.