1. F ROM A RISTOTLE TO S TIGLITZ - A H ISTORY OF
D ISCRIMINATION A GAINST I NDIGENOUS P EOPLES
I NVENTIVE C APACITY IN E CONOMIC T HEORY
1 INTRODUCTION
One of the greatest challenges to face globalization is biopiracy. In the past, biopiracy was
part of colonization policies for conquering wasted lands and uncivilized people. The legal
policy in the international law that supported European nations to conquer other continents
and made subjects the natives was called res nullius theory. The res nullius theory supporting
possession of new territories allowed Europeans to dispose Indigenous Peoples from their
property, their social structure and their knowledge applied to their local biodiversity. Just
recently, an international human rights movement that re-addressed colonization and
Indigenous Peoples rights reviewed the importance to recognize Indigenous Peoples rights to
tangible and intangible property. This preoccupation to protect Indigenous Peoples’
observations and practices associated to their local biodiversity has been of paramount
importance to avoid biopiracy activities that divest Indigenous Peoples from their intangible
rights. But some questions remain unanswered. Why Indigenous Peoples are subject to
biopiracy again? Why globalization that benefits all consumers because it brings more
competitiveness and good products at international level perverts Indigenous Peoples rights
to their own knowledge? This article suggests some arguments to comprehend the reasons for
biopiracy activities to occur at global level against Indigenous Peoples’ intangible property.
This article argues that historical and economic thought played a role to ignore Indigenous
Peoples’ rights to property (tangible and intangible) along with legal theories such as the res
nullius theory. Therefore, competition globally among firms contributes to transfer
Indigenous Peoples’ knowledge in an international network of companies, customers and
economies. This article illustrates reasons for supporting that Indigenous Peoples’ property
rights must be inserted in the economic cycle because of economic value of their labour and
their inventive capacity.
The first section examines a number of historical arguments to help understand to what
degree certain individuals or classes have been excluded from property ownership. The
attitude of dominant political classes excluding individuals from a determined social class to
hold property affected Indigenous Peoples’ social status in the post colonization period. Then,
Indigenous Peoples property rights were also excluded from legal and economic thought until
recently. This article argues that if it is reasonable that Indigenous Peoples hold property on
their ideas and know-how applied to their local environment through their activities, then
intellectual property labour theory applies to them.
The second section introduces how ideas became incorporated into economic activity,
particularly labour, so that ideas started to become useful for the exchange of goods or other
necessities among nations and individuals. Traditionally, ideas have been inconsistently
protected through legal instruments, because of their intangibility. Amongst historical
periods, the American Revolution marked an historical watershed, offering the opportunity to
make property legally available to everyone, notably by providing constitutional protection.
Subsequently, ideas could be protected as property due to the historical development in
recognizing property, trade and labour as sources of wealth.

2. From Aristotle, Plato, Jean-Jacques Rousseau, John Locke, Adam Smith, David Ricardo and
Karl Marx, there is enough evidence that good ideas for economic activities were a product of
civilized people. John Kenneth Galbraith and Joseph Stiglitz address contemporary theories
of political economy linked to intangible property protection and issues facing the intellectual
property system. Although they do not mention Indigenous Peoples’ rights directly, they
provide a platform to argue for their inclusion. Including Indigenous Peoples’ rights in the
circle of wealth is paramount to stop biopiracy activities that curtail economic value from
their labour. Thus, including Indigenous Peoples’ labour and inventive capacity allow them to
have an advantage in the global market.
Useful ideas on trade and commerce are connected to the economic value of labour that can
foster good ideas for inventions. This article concludes showing that human labour is
economically valuable regardless of social class or legal structure. The theories in economic
and philosophical thought that ignored Indigenous Peoples’ contribution have embraced
intangible rights for all individuals. Biopiracy activities occur because not all individuals are
included in the economic cycle of wealth.
(…)
It is clear that, when referring to the savages, Rousseau did not recognize Indigenous
Peoples’ labour. Although Rousseau did not support slavery, it seemed that Indigenous
Peoples did not participate in the revolution of holding ownership. For Locke, an individual is
the owner of his body and his labour from which group of individuals the Indigenous Peoples
would be part of it. i
Comparing Locke’s observations that Indigenous Peoples living together without the
attitude to fence in a piece of land are “tenants in common” with Rousseau’s passage above,
some conclusions are surprising. Locke seemed to be more progressive in social equality than
Rousseau and being inclusive of Indigenous Peoples’ labour and freedom.ii That is an
interesting dilemma proposed by comparing Rousseau and Locke – what are the Indigenous
Peoples’ rights in Locke and Rousseau’s theories? Quite different and distinctive,
nonetheless, Indigenous Peoples’ property is perceived as to be restricted to their own
person.iii
For Locke, the first to gather fruits regained individual property from communal property
over natural resources.iv Having Rousseau’s observations in mind, Indigenous Peoples as first
occupiers may have retained their property in the so-called “wasted and public lands”v as
soon as they fenced in a part of the land. That did not occur in the same legal translation of
fencing in a piece of land and defending against intruders as Europeans would be accustomed
to.vi Indigenous Peoples attitude towards property was to wander around a determined area
like tenants in common.
At the time of colonization, the international policy of the conquest of new lands offered
intense incentive to new settlers to populate the New World. The quest for gold and silver
brought civilized Europeans to encounter new people unknown to them. Therefore, it could
be suggested that the theory of wasted and public lands, on which the res nullius theoryvii has
its foundations, was largely controversial and today is refuted by most historians with just
merit.

3. Those first inhabitants were politically, economically and culturally dispossessed as soon as
the first European discovered unoccupied and “wasted lands”.viii The jurisprudence supported
by the terra nullius theory and more practical interests such as gold and natural resources
possession, dispossessed Indigenous Peoples of their land rights as well as of any recognition
of intellectual labour applied to their discoveries or labour-saving inventions.
Therefore, theories on social equality failed to acknowledge property rights to Indigenous
Peoples, although Locke demonstrated individual rights were vested in Indigenous Peoples.
Then, in 1776, Adam Smith’s publication of An Inquiry into the Nature and Causes of the
Wealth of the Nations, or in short title, The Wealth of Nations, addressed issues for intangible
property particularly the division of labour and art to create wealth in society.
(…)
1.1 Adam Smith and the early American colonies
For the early American colonies, much of this division of labour was theoretical, if not non-
existent. For many years in the American colonies, necessities had to be overcome by early
Americans’ improvements (or adaptations) to the new life. The adaptation to a world where
imports could cost the settlers dearly would have been less costly if improvisation and
creativity were prized assets. That has also provided a fertile opportunity to early inventors
from any occupation branch to contribute to labour-saving inventions.ix
Another idea to consider further is that the new American settlers were dependent on
English imports, so that creativity and ingenuity could contribute to the reduction of
dependency on foreign products. The circumstance of non-inexistent division of labour
permitted early Americans to claim political independence from monopolies of commerce
due to their ingenuity in solving daily problems with their own resources. Before 1776,
Smith suggested that England was confining American colonies to unfair monopolies, the
consequences of which he forecast as “violation of the most sacred rights”:
Forecasting the American Independence as well as the poisonous side of the monopolies of
commerce in a mercantile era, Smith demonstrated that creativity could overcome the
division of labour, if a particular talent to pursue one economic activity was not available.
However, ingenuity in the sense of producing useful things was prohibited in some trades.
Smith indicated that preceding the stage of inventiveness and creativity to transform menial
labour into intellectual labour is the stage of barbarous societies.
Smith’s comments that the stages in which natives engaged were limited to hunting and
rudimentary husbandry when the New World was discovered may suggest that his
recognition of intellectual labour amongst Indigenous Peoples did not exist. In this passage
below, Smith indicates that the period of intellectual labour occurred before the civilization,
so that creativity was present in the barbarous stage. However, Smith considered that the
natives in the barbarous state of society were somehow inferior to the civilized man, like in
this passage below:

4. (…)
2 KARL MARX AND PROPERTY (1818−1883)
One can observe in Smith and Rousseau’s writings that there is an element of second-class
uncivilized citizenry related to the first occupiers of the new potentially productive lands of
America and the former colonies of Africa and Asia. That perception has not changed, even
from the perspective of a revolutionary school of thought created by Karl Marx. His
understanding of capitalism and its historical implications after the Industrial Revolution
denounced social inequality in labour-work and in the role of the capitalism. Karl Marx may
have agreed that Indigenous People were unproductive. Here, unproductive meant not being
capable of producing economic value out of their practices and knowledge. In the passage
below, Marx defined the common property of Indigenous People modus operandi, in which
there is a trace of disregard for their creativity and intellectual labour to transform things into
something useful for the economic cycle. For Marx, the communal property practiced by
Indigenous Peoples and their division of labour in agriculture lacked freedom of labour and
selling of labour, two characteristics of capitalism:
(…)
2.1 Karl Marx and Indigenous Peoples
− of property and economic activity
In his seminal work, Das Kapital, Karl Marx approved and inserted botanist Joakim
Frederik Schouwx observations of Asiatic Indigenous Peoples lack of economic structure in
their society. Schouw found that Indigenous Peoples’ possessed inability to understand their
social position in the economic chain of activities or to participate in the capitalism. For
Marx, an element of being native or being Indigenous Peoples was to be outside of the whole
economic chain. Marx observed that to exchange their leisure activities for economic and
capitalist modus operandi is not part of their culture, as stated in the following passage:
(…)
For Marx, the collection of 50 lbs to 300 lbs of sago from trees transforms the human activity
into human labour, however, commodity or economic value was absent from it.
Then, why could it not be applied Locke’s theory of labour to Indigenous Peoples’
activities? Indeed, it is not a menial labour as Smith has introduced the term in the Inquiry,
because the tree has to be ripe and be subject to the judgment by the native as a ripe tree, in
order to him/her to collect sago. It is possible that they did exchange sago for something else
if they found they would have had a sago surplus and needed another item in their daily
routine. When Marx demonstrated the economic value of the “virgin state of soil” and that
labour “filters” the raw material, he lacked understanding that the truth of post-Industrial
Revolution social inequality for Indigenous Peoples’ labourers against non-Indigenous
labourers were not considered economic or capable of commercialization.
(…)

5. 3 JOSEPH STIGLITZ (B. 1943)
3.1 Classics never die: from Adam Smith’s old monopolies of trade
to Joseph Stiglitz’s critique to the Uruguay Round
The relationship of demand and incentive to invent has been part of the critique of globalized
industries of our century. Some industries are defined as natural monopolies, because
management by governments is desirable, as in the case of water.xi Then, monopoly of trade
for innovative products can be translated as Galbraith’s innovation test of not what people
need but what can be sold.
Joseph Stiglitz in his book Globalization and its discontentsxii updated Galbraith’s test of
innovation using the pharmaceutical industry as an illustration of monopoly of trade. The
pharmaceutical industry is especially interesting to examine for its business practice of
providing cure for sale and profit. Its nature
(…)
Biopiracy activities are linked directly on globalization activities from multinationals.
Stiglitz comments towards traditional medicines and foods are connected to the Indigenous
Peoples’ knowledge, namely Traditional Knowledge. The patent strategy used by
international companies generally have non-Indigenous Peoples employees, skilled in science
and trained to identify valuable intangible assets, which makes them able to forecast the
economical value of what has been supplied to them as information. Thus the Indigenous
Peoples, holders of the insightful information called Traditional Knowledge, do not realize
they are enlarging the private property of international companies when they share their
information on traditional medicines or foods with outsiders to their social system.
i
ii
See, supra note 29 and accompanying text.
iii
See supra note 29.
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v
vi
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viii
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x