Tag Archives: Cook Islands

by Dr Miranda Forsyth, Centre for International Governance & Justice (CIGJ), Centre for Restorative Justice (CRJ), Regulatory Institutions Networks (RegNET), CAP, ANU.

A Conference on Innovation, Development, Creativity and Access to Knowledge in Pacific Islands Countries was held at the ANU in Canberra on 22-23 September 2012.  The conference brought together leading intellectual property law, international, environmental and property law academics with a wide range of Pacific Islander lawyers, policy makers, academics, legislative drafters, information technology specialists and educators.

The conference took a very multi-disciplinary approach and covered a range of topics all connected to the overarching question of how to create an intellectual property framework that will really align with and support sustainable development in Pacific island countries.

A number of overarching themes emerged from the discussions.

Centrality of traditional knowledge to intellectual property policy in the region

Traditional knowledge and manifestations of that TK were highlighted as being a critical asset for the region for a range of reasons – the foundation for cultural industries, a means of adapting to climate change and ensuring food security – as well as bringing a host of other benefits.  While there is a desire for legal frameworks to assist in protecting TK against fears of misappropriation and to assist in its commercialization, there are also concerns about the dangers of commodification of TK through such legislation.  A number of speakers pointed out that experiences of land privatization and resource development in the region demonstrate that boundary drawing exercises often lead to community conflict, and often any financial benefits are not equitably shared and lead to no lasting benefits.  Strong advice was given to pay attention to the organizational form chosen to exploit the commercialisation of  TK, and to learn from problems associated with various existing forms, if any sustainable developmental outcome is to proceed from such commercialization. A number of speakers referred to the potential of adopting a network or partnership approach as a structure to manage TK, as a possible means of mediating between the national and local demands.

The weakness of the state and the large role that customary institutions have played in regulating traditional knowledge were both constant themes. It was often noted that there is a problem in that international and national strategies about property rights including IP are made by the state, but the reality of resource management occurs at a local level. It was pointed out that strong leadership and awareness of the issues surrounding IP at grass root level are two pre-conditions for the set-up of effective IP regimes in PICs.

Potential of IP laws to further development

There was a high level of interest in the developmental potential of culture and cultural or innovation-based industries for the region. This would build upon the cultural richness and diversity in the region and would be a new sector with no obvious limits in contrast to the limits of industries based on extracting natural resources. However, government or donor support is required to get such a new sector off the ground, particularly in relation to assistance with marketing (national and international), product development and entrepreneurship, development of quality control mechanisms, the development of certification marks, and support and training in disciplines related to culture so that TK is not lost to subsequent generations. This requires PICs to develop strategies to link cultural policies in with trade and development agendas of individual countries.

In terms of organizational structures for new initiatives, participants suggested that networks, particularly existing ones, and public/private partnerships offer the most potential in the context of the region.

Close linkages between intellectual property developments and trade

Many speakers identified the fact that intellectual property reforms and developments are largely being driven by Free Trade Agreements. Further, the intellectual property terms of these agreements are often not development friendly, and may have negative consequences in terms of access to educational materials, food security, access to medicines and restricted policy space. Participants noted that it was important that FTAs therefore also include meaningful assistance for countries to be able to benefit from their IP undertakings such as through technical capacity building, development of certification marks and so on. There was agreement that such issues, including some form of special and differential treatment, should be negotiated as part of the trade package deals between the region and its developed partners. It was also evident that comparative research might offer alternative models to those advocated by current FTAs.

Tensions raised by intellectual property issues

There were a number of important tensions in the development of IP policy that emerged through the discussions:

• Role of secrecy – secrecy was seen to have the advantages of protecting TK and IP from misappropriation, but it also has disadvantages in that it may aid in the disappearance of the TK as it may not be passed down
• The benefits of sharing knowledge about TK to deal with climate change, food security, and stimulate further innovation were highlighted, but it was also observed that sharing may lead to concerns about misappropriation and missing out on entitlements particularly once financial reward entered the equation
• While bringing TK into the public domain may support the process of establishment of TK-based industries, the missing cultural context of entrepreneurial undertakings may also undermine the meaning of TK for Pacific peoples themselves (the Dream Catcher syndrome)
• Benefits of sharing TK may translate into financial gain for those sharing. However, in situations where possession of TK is associated with a particular status in society the open sharing of TK may result in negative societal impacts for communities

State capacity

Although many speakers advocated the introduction of new TK and IP legislation, the limited capacity of the state was a constant theme throughout the workshop. This limited capacity suggests that the state alone should not be relied upon to drive any benefits from this area, but rather civil society and customary institutions also have an important role to play. The example was given of the formation of craftsman’s groups in Samoa who are seeing to improve standards in specific sectors, associations encouraging the sharing of plant material, village initiatives to access micro-finance for marketing cultural artefacts and so on.

Ways forward

• Capacity building on the basis of smart trade negotiations with developed partners
• Development of knowledge networks which integrate existing community leaders
• Building the IP knowledge base through a) greater awareness of existing national and regional TK and b) greater non-politicised awareness of the structure, consequences and costs of proposed IP regimes.
• Awareness campaigns based on open access to local and regional initiatives, relevant databases, reports, discussion forums
• Assistance for policy makers in the mainstreaming of culture in related policies covering areas like trade, investment, development, education, health, agriculture.

[You may view powerpoint presentations for this conference at the IPPI website].