In a capitalist society, individuals consider it a virtue to generate profit from their tangible and intangible creations and to increase their capital. We are already well aware of how powerful the impact of intangible creations, or what we call "knowledge," can be, compared to other forms of production. Through the institution of "education," we have encountered vast amounts of knowledge and believe in its importance more than anything else.
The era of rationalism, which began with 18th-century Enlightenment thought, is referred to as modernity or "modern." The belief in human reason, which emphasizes rational thinking, provided the driving force for new creations and justified the necessity of actively protecting such creations. As a result, during the modern era, research aimed at legitimizing the protection of intellectual property systems—some of which had already been implemented in medieval Venice—became more active, leading to their formal establishment and enforcement through legal statutes.
After the Enlightenment and existentialism, the postmodernist era—represented by thinkers like Derrida and Foucault—raises fundamental questions about whether we are trapped in the fallacy of reinforcing existing power structures through the suppression of opposing logic. For example, influenced by Nietzsche and Freud, Foucault argues that while knowledge has traditionally been seen as a force resisting power, in reality, knowledge and power are companions. He warns against the dangers of rigid thinking, emphasizing that Nietzsche's "will to power" is about becoming the master of one's own inner self. Foucault further asserts that knowledge can be manipulated into power, shaping perceptions of normalcy and abnormality. He argues that both knowledge and power are intrinsic human instincts and that power is not merely imposed from above but is instead "produced" from below.
The legitimacy of intellectual property rights has been a long-standing debate. The forward-looking approach, developed by American economists, considers factors such as marginal costs, under-consumption, and under-production to assess the consequences of protecting intellectual property. On the other hand, the backward-looking (deontic) approach examines the nature of the act itself and its associated relationships to justify protection. Postmodernists criticize the fundamental structure of intellectual property rights and call for a shift in perspective. Their ideas offer fresh insights, particularly when discussing the intellectual property monopolization by global pharmaceutical companies and seed production corporations like Monsanto.
In contrast to the past, there is now a growing skepticism about whether newly created technologies can truly be considered innovative. Prior art searches were neither practically feasible nor cost-effective in the past. However, they have now become an essential part of the patent application process. This shift is not merely due to faster searches enabled by digitization but also because we are increasingly realizing that many ideas we conceive already exist among the vast array of innovations produced under modernism. At the same time, we must recognize that we live in an era where we can quickly search for and combine various technologies to create new meanings.
In postmodernism, novelty is no longer the sole priority. Creating something entirely new is becoming increasingly difficult. Instead, the ability to combine and reconfigure existing concepts to imbue them with new value is paramount. Even if an invention integrates modernist-era ideas to create an efficient and effective combination, it would still be highly significant for human progress. However, under the current patent system, such creations could be subject to patent infringement issues. This is why discussions on the legitimacy of the patent system, the scope of patentable subject matter, and compulsory licensing are becoming more prominent.
In her book "Biopiracy: The Plunder of Nature and Knowledge," Vandana Shiva presents a paradoxical argument that the intellectual property rights (IPR) system destroys the diversity of knowledge. She goes further to claim that patents are obstacles to free exchange and convincingly argues that legalized biopiracy is openly practiced through the patent system. As genetic engineering advances, it has become possible to patent organisms with inserted genes that create new traits. While this has undeniably enabled advancements in genetic technology, Shiva emphasizes that we must also recognize how genetic modification allows for the production of seeds and crops as one-time-use products. She challenges what modern society takes for granted—knowledge and institutional frameworks—and offers a postmodern proposal aimed at fostering a more just society.
Legally, the justification for recognizing property rights over living organisms is not fundamentally different from other inventions. It relies on the creation of a new, unique, and non-naturally occurring organism through genetic manipulation. However, Shiva raises the issue of "responsibility" for the consequences of releasing genetically modified organisms into nature. She points out that corporations tend to market these organisms as if they had always existed, suggesting they are not entirely new. At the same time, despite holding patents on these organisms, companies claim they are "natural" and therefore safe—minimizing discussions on the safety of biotechnology. This contradiction, she argues, reveals an opportunistic corporate attitude that merits serious critique.
Shiva asserts that living organisms should not be patentable. She believes that life forms cannot be treated as mere machines and that losing their self-organizing capabilities would mean they are no longer living beings. Furthermore, she argues that granting patents on plants and animals denies these life forms their inherent ability to reproduce and evolve on their own.
The productivity of a society that guarantees private property is markedly different from one that does not. It is reasonable to protect intellectual products created through individual effort. However, how we justify such protection fundamentally affects our perception of the scope, subject matter, and limitations of intellectual property protection.
Granting intellectual property rights based on rigid, simplistic logic can instead lead to monopolies and violence. In reality, global corporations have developed evergreening strategies in the pharmaceutical field. Unlike movable and immovable property, intellectual property is not restricted by physical boundaries and can become a powerful weapon. Thus, a careful approach that considers perspectives from postmodernism and beyond can provide the necessary prudence when assessing the scope, subject, and limitations of intellectual property protection.
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