Regarding Rights

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Weaving intellectual property policy in small island developing states

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By Miranda Forsyth

Centre for International Governance & Justice, ANU

Weaving Intellectual PropertyIn their new book, Miranda Forsyth and Sue Farran consider the challenges of creating appropriate intellectual property frameworks in developing economies, focusing on small island states in the Pacific.  The book draws together policy considerations, theories of development and law and empirical studies. It offers a competing model of intellectual property regulation to the usual Western framework, based on local conceptions of culture and indigenous understandings about use, knowledge and transfer of intangible property. This post is an edited version of Miranda’s discussion of the book at a RegNet ‘bookclub’ earlier this year.

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The starting point for Weaving intellectual property policy is that Pacific islands have become a site of global pressure to enact an increasing number of intellectual property (IP) laws. In response to this pressure, since 2000 there has been a proliferation of new legislation and policies dealing with IP in countries in the region.

The pressure to enact new IP laws comes from a range of different sources. There is pressure to join the World Trade Organisation and its main treaty package dealing with IP: the Agreement on Trade Related aspects of Intellectual Property (TRIPS). The accession packages of a number of Pacific Island countries have high IP requirements – known as ‘TRIPS Plus’ requirements.

Aside from pressure to join Free Trade Agreements, such as the European Union’s Economic Partnership Agreement, there is a more ideological pressure to introduce these laws that comes through a discourse we term ‘IP = Development’. This pressure is exerted through technical capacity building programs from international organisations such as the World Intellectual Property Organisation. Whilst these have become more nuanced in their approach in the past decade, the ‘IP = Development’ discourse is pervasive.

Meanwhile, there has been no real pushback from within Pacific island states. This reflects the lack of public awareness of the problems that these types of frameworks may create in relation to access to knowledge, pharmaceuticals and seeds. There are no civil society movements that are really tuned into these issues. Instead, artists and the musicians who are supported by the Australasian Performing Rights Association (APRA), push for strong IP rights.

We suggest that the move towards more intellectual property regulation in the region is taking place based on a number of misconceptions:

The first is that the Pacific islands do not already have intellectual property regulation. In fact, Pacific islands societies are based on a knowledge economy. There are strong customary rules over who has the right to access certain knowledge and cultural heritage, such as songs, carving and other designs.

Lamont Lindstrom, a distinguished Pacific anthropologist writes:

The traditional pursuit of knowledge in this part of the Pacific is not organized in terms of what we like to call free intellectual inquiry; rather it is rigidly territorialized so that unless one possesses the requisite copyrights, entire domains of knowledge remain off-limits within public, serious talk.

For example, the rights to carve tam tams (slit drums) on the island of Ambrym in Vanuatu, is strictly controlled. Families purchase the rights to make two or three headed tam tams with wealth such as pigs, but today also money.

So knowledge regulation continues today in the Pacific islands – knowledge is power, and as such, it is not automatically shared.

The second misconception behind the push for new IP laws relates to how customary law is said to work and the way it can be observed working in practice. Pacific island countries are sites where customary law continues to exert a real influence, both by itself and in the ways in which it has become entangled with state law and modern conceptions of law.

Across the region there is pressure to identify ‘customary norms’ and then to instrumentalise them within state legal systems or in modified customary systems. There is a move towards doing this for traditional knowledge in many countries across the region, although only the Cook Islands and Niue have actually promulgated laws in relation to traditional knowledge.

The problem with enacting such laws, however, is that it removes a lot of the flexibilities that come with how custom has traditionally operated; flexibilities that have allowed it to respond in creative and helpful ways when faced with unexpected obstacles.

An example of this is drawn from my fieldwork: meet Croc.

Tatau Rarotonga, Image: CrocTatau

Tatau Rarotonga, Image: CrocTatau

Croc comes from England but has been living in the Cook Islands for a number of years and doing tattooing using a traditional Polynesian technique, the first to do so since the practice was suppressed by the English Missionaries in the 1800s. Croc did his apprenticeship in traditional Polynesian tattooing in New Zealand, with a Maori who had been taught by a Samoan Master. After learning the skills, Croc met a Cook islander and returned with her to Cook Islands. When I interviewed him, he had just formalised an agreement to take on a young Cook Islander as an apprentice, thus renewing the cycle of knowledge transfer that had been interrupted by the missionaries.

Often when customary rules of ‘ownership’ are examined more closely, it becomes apparent that it is not really ownership that is being discussed, but stewardship or other more complicated combinations of rights. So I am wary of attempts to codify custom in state laws, especially when the term ownership is used.

The third misconception, which relates to the one just discussed, is that a Western real property system can simply substitute for existing customary conceptions of property without creating any significant problems. In fact, such substitution has given rise to enormous problems in many, if not all, Pacific island countries.

Colin Filer refers to the ‘ideology of land ownership’ and we have used this concept in relation to intangible property as the ‘ideology of ownership’. What this ideology does is transform a series of existing relationships between people into an endless dispute about entitlements to a limited resource. It is a process in which, generally, the more vulnerable members of society – women and children, have their interests undermined by powerful men.

As Sue and I argue in the book, ignoring the existing customary regulatory systems around both tangible and intangible property can have truly destructive impacts. This is especially the case as these social norms are often deeply intertwined with questions of identity.

An example of this was brought home during the course of my fieldwork. Makareta Matemosi drew on her traditional knowledge to create designs for a local airline. The airline subsequently sought trademark protection for the masi designs, and there was great consternation in the community that other traditional artists would be prevented from using the designs in their own work. Makareta Matemosi said to me:

At first I was really happy, but then when the trademark issue came I really regretted that I had done [the work for the airline]. That is the best word to use to express it, regret. I did not know that people would complain. It has really badly affected me and my family. My children told me that they read about people complaining about me on facebook, and there were all sorts of stories going around … All this has really spoiled my business, it has not recovered since then. People thought that I got paid a lot of money but I did not, and now my business is really small. This is a problem because my husband does not work, I am the only one who earned money with my masi making business. Now I cannot pay the kids’ school fees.

The book is an attempt to respond to the misconceptions just described, and to push back on the state-centric grid of IP regulation that is being created in the region. We have also tried to think about what a pluralistic approach to IP regulation would be like, one that really takes into account the existing IP regulatory frameworks in the Pacific islands and works with them to meet the modern challenges of regulation, including the need to be compliant with TRIPS and other Free Trade Agreements. This was certainly the most challenging aspects of writing the book, and we are certainly not done yet thinking it through.

How would such an approach change the way things currently happen?

It would ensure a broader range of processes and practices are available to build the relationship between state and non-state regulatory systems. Instead of a focus on detailed rules and state agencies, attention could be paid to identifying values that underpin the regulation of knowledge, and the development of processes for bringing the right people together for dialogue and negotiation. Peter Drahos calls this ‘regulatory convening’. This would give centrality to underlying cultural values, such as respect for the wisdom of elders, connections with the spirit world, the primacy of social relationships, and connections with place.

What Sue and I have tried more than anything to do in this book is to destabilise the notion that global IP laws are the ‘only’ way to regulate knowledge, and to suggest that much can be learnt from the value that Pacific Islanders place on relationships in regard to the generation and sharing of knowledge.

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