FEATURES • Spring 2003

Since September 11, 2001, School of Law Professor Charles McManis has committed his academic career to bridging the gap between the industrialized and developing worlds in the complex, burgeoning area of intellectual property law—for the benefit of all.

By Betsy Rogers

Chuck McManis was at a conference in Manaus, Brazil, wrestling with vexing issues of bio-piracy, compensating indigenous peoples for traditional knowledge, and international enforcement of intellectual property law. A conversation with a Guyanian ambassador had left him pondering the inequities under which developing countries struggle to find their place in the global marketplace.

It was September 10, 2001. "I was presenting my paper on September 11," he recalled later, "and thus witnessed the horrific events of that day from a somewhat different vantage point than most Americans."

The experience was a turning point for Charles R. McManis, who is the inaugural Thomas and Karole Green Professor of Law at the School of Law. "By the time I finally returned home," he said in his chair installation lecture September 26, 2002, "I had made a firm resolve to commit my remaining academic career to doing whatever I could to bridge the terrible gap that divides and poisons relations between the industrialized and developing worlds."

Though an intellectual property attorney might seem to occupy an improbable position for bringing the First and Third worlds together, McManis is working hard to prove that it can be done, nowhere so visibly as in the issue of biodiversity and traditional knowledge.

On this troubled part of the world stage, players in the developed world are looking for new solutions to problems—new medicines, new herbicides, new varieties of crops to feed the world's hungry, and, of course, new sources of profit.

On the other side of the divide, indigenous peoples see the priceless assets of their traditional knowledge and their rich forests exploited with little or no return to them, while the cost of patented pharmaceuticals far exceeds their ability to pay. And subsistence farmers watch with mounting anger as newly engineered monoculture crops replace their varied harvests, and fertilizer and pesticide prices for these new crops soar far beyond their means.

McManis' vision is of collaboration rather than conflict. "He's a scholar with a heart," says law school Dean Joel Seligman, the Ethan A. H. Shepley University Professor. "He is focusing on ways in which international property laws can best protect the property interests of indigenous peoples in areas like the Amazon River basin."

It is not a new issue. The very city where McManis attended the September 2001 conference was the victim of "gene piracy" in the 19th century. "Manaus was the rubber capital of Brazil," McManis explains, "and Brazil was the rubber baron of the world. It had a natural monopoly on rubber trees—until researchers from the Royal Botanic Gardens at Kew spirited plants out of Brazil." The Kew scientists turned the trees over to the British government, which promptly established rubber plantations in what is now Malaysia, thus breaking the Brazilian monopoly.

McManis envisions a much more mutually beneficial approach and takes heart from instances where it is already in place. Perhaps his favorite example concerns Washington University biologist Walter H. Lewis and ethnobotanist Memory P. Elvin-Lewis. This husband-and-wife team have searched the Peruvian rain forest for years for an anti-malarial remedy.

Working with a National Institutes of Health grant, the Lewises negotiated a set of agreements with two Peruvian research institutions and Peru's Aguaruna peoples for a cooperative research project. The agreements include, McManis notes, "a know-how license," recognizing the traditional Aguaruna knowledge as a valuable asset and agreeing to pay for it.

And in January 2001, Lewis submitted a patent application for a promising malaria treatment, in which he names the Aguaruna and the two Peruvian research institutions as co-owners of any resulting patent. If there is ultimately a patent, Peruvians will own three-fourths of it, and Washington University—which is paying for the filing—just one-fourth.

Increasingly, other pharmaceutical firms and research enterprises are entering into similar agreements.

In an April 2003 symposium at the law school, titled "Conference on Biodiversity, Biotechnology, and the Protection of Traditional Knowledge," McManis and colleagues are planning a sweeping program to explore this complex cluster of issues.

The conference will bring together scientists, social scientists, legal scholars, government officials, representatives of indigenous communities, practicing lawyers, and business leaders. Confirmed speakers so far hail from the United States, Costa Rica, England, South Africa, Switzerland, Madagascar, India, and New Zealand.

Convinced that intellectual property (IP) law is inescapably international, McManis has himself acquired an international reputation in the field. "He's known all over the world, in Europe and particularly in Asia," says Dorsey D. Ellis, Jr., the William R. Orthwein Distinguished Professor of Law and dean of the School from 1987-1998. "He was among the first to see that intellectual property was a subject that could not be contained within the boundaries of American law."

McManis won a Fulbright Fellowship for research in Korea and has returned there frequently. He has been an exchange professor in China, a visiting lecturer in Japan, and a workshop speaker in Taiwan. He has consulted with the World Intellectual Property Organization in India. All these experiences have helped him understand other nations' views about intellectual property.

 

Law students named Professor Charles McManis the 2001 Teacher of the Year. At left, he works with Taeman Kim (left), LL.M. '02 (intellectual property and technology law) and current J.S.D. student, and Zhenya Wang, an IP LL.M. student.

"The industrialized world throws around the word 'piracy,' accusing the developing world of harboring and indeed encouraging intellectual property piracy," McManis observes, "but from the developing country's point of view, you hear the allegation of neo-colonialism, an attempt to keep the developing countries under the thumb of the industrialized world."

"The industrialized world throws around the word 'piracy,' accusing the developing world of harboring and indeed encouraging intellectual property piracy," McManis observes, "but from the developing country's point of view, you hear the allegation of neo-colonialism, an attempt to keep the developing countries under the thumb of the industrialized world."

The international IP issues are just one constellation in a rapidly expanding cosmos that observers call the intellectual property boom. Fueled by digital technology and biotechnology, intellectual property law has gone from an arcane specialty to a vast growth industry.

American IP law is rooted in the Constitution, which says, "The Congress shall have Power ... To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." From this simple statement has arisen the body of law that includes patents, trademarks, and copyrights.

McManis believes that the public purpose of promoting science and the useful arts is losing out in today's climate, where powerful business interests press new kinds of claims, some valid and some spurious, and effectively erode this public objective.

In other instances business is evading IP provisions altogether. McManis has studied and written extensively about the so-called "shrink-wrapped" license included in typical software packages and its relationship to copyright law. The consumer buys software, takes it home, breaks into the plastic wrapping, and discovers that having done so, he or she is now a party to a highly restrictive contract, which can be nullified only by returning the software to the source.

McManis says these mass licenses limit the way students, teachers, educational institutions, libraries, and others can use the materials—though the prohibited uses are often permissible under federal copyright law. Further, proposed changes to the nation's Uniform Commercial Code would enshrine these licenses, render copyright law irrelevant to license-protected property, and cast aside centuries of precedent about users' privileges for purposes such as criticism, comment, reporting, teaching, and scholarship.

As an active member of the American Law Institute, McManis has been vocal in the ongoing debate about these changes and has helped block their adoption. "One might title the story 'Chuck the Giant Killer,'" Ellis says of McManis' role in the debate, which pits him against the publishing and entertainment industries.

With the intellectual property boom has come a sharp new focus at the nation's law schools, and McManis has propelled the specialty to prominence at Washington University.

"Chuck is an army unto himself," Seligman says. "He took the lead in creating an extraordinary adjunct-run program in intellectual property. He very emphatically wanted it to go further. He wanted more faculty hired in the intellectual property area and ultimately the creation of a broader program."

Among the results was the 2001 addition of an LL.M. degree in intellectual property, one of perhaps a half dozen in the nation.

McManis' energy and drive have struck a responsive chord among students, who also value his intellect, humor, and sincerity. "He is an exceptional teacher," says Tanuja V. Garde, J.D. '98, who heads the U.S. Department at the Max Planck Institute for Intellectual Property, Competition, and Taxation Law in Munich, Germany. "He's the one who introduced me to intellectual property law and one of the primary reasons I went into it. He's a very committed professor," she says.

Law students named him Teacher of the Year for 2001, and the same year the Law Alumni Association honored him with the Alumni Distinguished Teaching Award.

McManis is widely published on a range of IP issues, including two co-authored books—Cases and Materials on the International Aspects of Intellectual Property Law and Licensing of the Intellectual Property in the Digital Age—and his own Intellectual Property and Unfair Competition in a Nutshell, now in its fourth edition.

"He is a thoughtful scholar in international intellectual property and in a vast variety of new and increasingly complex problems concerning domestic intellectual property law," Seligman observes. "I sometimes worry that he never sleeps, but I marvel at his absolutely boundless enthusiasm."

 

Betsy Rogers is a free-lance writer based in Belleville, Illinois.

 

 

 

 

 

 

 

Professor Charles McManis played a key role in creating a program in intellectual property at the law school.