INTRODUCTION

This chapter advances the arguments already made about the benefits of a contextually grounded and pluralist approach to intellectual property regulation through examining the regulatory framework around traditional medicinal knowledge and associated plants in Pacific island countries. As discussed in Chapter 2, there is a long and vibrant use of traditional medicine in Pacific islands countries, and it continues to play an important role in healthcare in almost every part of the region today, as well as among the Pacific diaspora. Besides raising regulatory issues concerning safety standards and appropriate pathways between western and traditional medicine, the practice of traditional medicine poses a number of particular intellectual property related issues. These can be grouped into three broad categories, which indeed largely mirror the issues surrounding many other types of traditional, local or indigenous knowledge. The first relates to concerns about misappropriation of the knowledge by outsiders through the development of a new medicinal products and the resulting exclusion of the knowledge holders from the resulting commercial benefits usually through the use of patents. The second relates to finding ways in which traditional medicinal knowledge can be used to generate economic benefits for the source community; and the third relates to ensuring that the knowledge and the plants and other natural resources that it is dependent upon are nurtured and valued sufficiently for active inter-generational transfer. In this chapter we will first examine how these three different sets of issues are currently being expressed in Pacific island countries, with a particular focus on traditional medicinal knowledge. We will then discuss some of the actual and proposed regulatory responses to deal with these challenges. In the conclusion we will draw upon the insights from the case studies to make a number of observations about how a pluralistic approach to regulation in this area may be of assistance, and the need to take into account the social, economic and political contexts of the particular communities and countries being regulated. We also demonstrate how different regulatory orders (for instance state and non-state) permit and foreclose different levels of agency, empower different stakeholders, reflect different institutional realities and draw upon varying underlying values and principles.

INTRODUCTION

The previous chapter discussed the way in which adopting a more pluralistic approach to intellectual property regulation in the context of technological innovation opens up new pathways and possibilities. In this chapter we explore another important aspect of intellectual property for developing countries, namely branding and culture- or place-based products and industries. As well as considering global forms of intellectual property such as trademarks and geographical indications of origin (GIs), we also explore locally modified mechanisms such as Fiji's experiments with a new batch of authenticity marks, a new regional organic standard and an ambitious move away from third-party certification to a participatory certification scheme. We discuss the complex issues the interplay between cultural heritage and intellectual property regulation raises for the region, both in terms of the desire to stop misappropriation of traditional knowledge by ‘outsiders’ and to facilitate its commercialisation by ‘insiders’, at the same time highlighting the problematic nature of such binaries. The various case studies and examples discussed in this chapter provide insights into the different strands of regulation that are available in this space and the benefits of engaging constructively with them. The chapter is structured around the exploration of how a range of different intellectual property mechanisms -trademarks, global certification schemes, labels of authenticity, GIs, collective marks, customary protocols, education and negative publicity - are currently being used in the Pacific islands region, with a particular emphasis on Fiji as it has been the most active in this area to date.

TRADEMARKS

Trademarks are the most well-established of all the different types of global intellectual property rights in the region and all Pacific island countries have trademark legislation of one form or another. In essence, trademarks constitute words, symbols or devices which, in the form of an outward and recognisable representation placed on products, help consumers to identify their origins. Trademarks have the potential to fulfil a number of different policy objectives: allowing producers of goods and services to protect their investment in quality, building up of a reputation, aiding in advertising of products, and assisting consumers in assessing the quality and source of products. As businesses in the region become more complex, they are more likely to want to be able to stop competitors from ‘free-riding’ on these investments and indeed trademark disputes are those most commonly coming before the courts.

INTRODUCTION

In the previous chapter we focused on the negative impact that the law of patent can have on access to medicine and consequently on health in Pacific islands, thus undermining several Millennium Development Goals. We pointed out through the case study of Vanuatu that the impact of stricter patents regimes may not be felt immediately, but that various changes of circumstances could give rise to far-reaching consequences. We now turn to the impact that intellectual property has on access to education, focusing in particularly on the law of copyright. Unlike patent laws, copyright is already creating difficulties for Pacific island states, because, unlike with patents, there are clear local groups that stand to gain from an effective copyright system. For example in Cook Islands the Copyright Act which was introduced in 2013 was the result, among other factors, of pressure from songwriters and musicians. Similarly, elsewhere in the region such as in Vanuatu, Solomon Islands and Papua New Guinea, it has often been songwriters and musicians who have been vocal in claims of copyright infringement and in demands for stronger protection for their creative efforts. In Vanuatu for example, the Musik Federesen Blong Vanuatu (Music Federation of Vanuatu) was set up and motivated by the actions of the owner of one of Vanuatu's major recording studios. The federation campaigned for a number of years for the government to gazette, and hence bring into operation, Vanuatu's Copyright Act which had been sitting on the statute books since 2002. The argument was made that local musicians were losing out on major royalty payments because their music was being copied and sold cheaply in local stores, and also was played on radio and television without any benefits being paid to the artists. There are also groups who may benefit from weak copyright systems, for example those who simply cannot afford to pay the price copyrighted material commands, and those for whom weak copyright regimes may have commercial advantage. It is also the case that within the development context national governments are under pressure to tighten copyright laws and regional organisations are keen to do so as part of the promotion of cultural industries.

This book is about the development of intellectual property policy in small island countries and less and least developed countries. It sets out the case for the importance of making respect for local context a central principle, and the consequent need to weave together an intellectual property regime based on both local and international regulatory systems. It also discusses in practical terms how this can be achieved, providing a range of case studies based on empirical research over a number of years in the Pacific islands region, in which many small island developing states are based.

Intellectual property rules are deeply implicated in almost every area of development, and as such are best addressed in a holistic way within the particular developmental agenda of individual states. However, intellectual property laws and frameworks have developed in such a complex and technical way over the past few decades that the policy issues they entail remain virtually inaccessible to all but specialist intellectual property experts, to whom they tend to be relegated. This is particularly problematic in small island and less developed countries where technical capacity is extremely limited due to small and dispersed populations and under-developed educational, training and research institutions. It has meant that this area of development is regularly overlooked. Although the last decade has seen both a rise in academic attention to the nexus between intellectual property and development and, in 2007, formal commitment by the World Intellectual Property Organisation (WIPO) to the ‘Development Agenda’, the majority of the work to date has focused on technical details about isolated pockets of concern, such as pharmaceutical patents and access to knowledge. In general, this has been carried out by lawyers, and as such it has tended to concentrate on the details of state legislation and international treaties. As we shall point out, while these forms of intellectual property regulation have their place, they also have their limits.

Although also written by lawyers, this book takes a somewhat different approach to the issues involved in intellectual property and development.

INTRODUCTION

In the next two chapters we focus on two specific areas in which introduced forms of intellectual property, while they may confer benefits on a small minority of Pacific islanders, are more likely to confer benefits on those elsewhere, and may have negative consequences on development for the majority of people in the region. These areas are access to medicine and educational resources, which also give rise to issues linked to the promotion and integration of traditional medicinal knowledge and practice, and less formal forms of education focused on traditional skills within the context of development.

Health and education are seen as being of crucial relevance to the attainment of development aims, particularly Millennium Development Goals. Of the eight goals, two relate to education and three relate to health. The United Nations Pacific reports however that:

Education and health are also relevant to the way in which development is measured by the United Nations - along with gross national income. Out of 187 ranked countries in the 2014 Human Development Index Report, Pacific island countries ranked as follows: Palau 60, Fiji 88, Tonga 100, Samoa 106, Federated States of Micronesia 124, Vanuatu 131, Kiribati 133, Solomon Islands and Papua New Guinea 157. Marshall Islands, Nauru, Tuvalu were unranked and Niue does not appear.

INTRODUCTION

The previous chapters have dealt with a number of problems in the current relationship between intellectual property regimes and development, highlighting the way such regimes limit access to new technologies, books, and medicines in Pacific island countries. We have suggested that although the recent expansion of global intellectual property regimes into small Pacific island states has been justified, and to an extent operationalised, on the basis that it will promote their development, global intellectual property regimes will almost certainly have an overall negative effect in the region, given the current and future import/ export ratio of intellectual property protected goods in these countries. The aim of this chapter is twofold. First, it provides a brief overview of current critiques of intellectual property and development, focusing in particular upon the suggestions for change. It argues that these suggestions, taken as a whole, have failed to bring about much real change in the overall trend of more intellectual property institutions, more countries being incorporated into the global system and higher intellectual property standards. Whilst not discounting the very powerful political and economic forces at play here, we suggest in the second part of the chapter that an explanation for this is that the majority of the critiques are framed within the same general approach to development as the intellectual property and development narrative itself. Further, they have been articulated in forums dominated by the actors driving the agenda, such as WIPO and the WTO and other international treaty making bodies. As a result, potentially challenging views have been appropriated and absorbed within the mainstream intellectual property paradigm, without occasioning any substantive reform.

In this chapter we therefore adopt a different approach to critiquing the intellectual property and development project, drawing on lessons from the more radical critiques that have been made of development as a whole over the past decade. We canvass a wide range of different disciplines, including post-development, post-colonial, decolonial, critical development, anthropology, socio-legal theory, and human geography, which in general adopt deconstructive, post-structuralist approaches to questions of development. This chapter explores insights from these different critiques of development and uses them to cast new light on questions of intellectual property and development, and particularly to open up alternative pathways forward.

INTRODUCTION

As has been indicated in Chapter 1, the influence of a western hegemony in a global trade context has resulted in the diffusion of models, concepts and legal frameworks informed by western, liberal, capitalist economic thinking. This diffusion, which has been achieved by the introduction of transplanted legal ideas and norms, has been facilitated by colonialism and post-colonial globalisation. The experience of Pacific island countries is marked by both of these characteristics. In the context of intellectual property an increasingly straight-jacketed and all-encompassing ‘one-size-fits-all’ approach has been adopted, and while there is room for limited manoeuvrability as we have indicated elsewhere in this book, small island developing states often lack the resources or expertise to make the most of these. It is also the case that Pacific island countries do not start with a clean sheet and the task of reviewing and reforming the laws that exist may, in itself, be a considerable task, particularly if a holistic approach is to be achieved. Also, as pointed out in the case of Vanuatu's accession to the World Trade Organisation discussed in the context of patents and access to medicine in Chapter 2, the consequences and impact of law reform can vary depending on the particularities of circumstances.

THE INTRODUCTION OF LAWS

As with other areas of law, prior to independence intellectual property laws were introduced primarily to safeguard the intellectual property interests of settlors and non-indigenous people. At independence these laws, along with other introduced laws, were retained under interim provisions found in the constitutions of these new states which maintained the laws in force unless these were contrary to the new status of the country or found to be incompatible with either the constitution or other national laws. At this stage little attention was given to whether the laws so retained were best suited to the needs of the newly independent countries. At the same time independence offered an opportunity to reassert the importance of customary law or customary values through integration into the formal legal system, usually the Constitution, to a greater or lesser extent. In fact, whether formally integrated or not, custom and customary values proved to be resilient during the colonial era, and have remained important and relevant to the daily lives of most Pacific islanders.

INTRODUCTION

The chapters in this book so far have dealt largely with the way in which the global intellectual property system is being imposed onto the Pacific islands region and the consequential developmental ramifications. In the last chapter we suggested that a productive way forward would be the adoption of a pluralistic approach that weaves together a variety of state and non-state regulatory mechanisms and is strongly grounded in the social and cultural realities of the region. The next three chapters explore in more detail the various issues involved in adopting such an approach, focusing on a number of case studies and issues of particular salience to the region. This chapter is concerned with the issue of technological innovation and we examine it through the lens of the intellectual property issues arising from the issue of sea transport in the Pacific islands region. This issue was chosen because sea transport is the lifeline of Pacific countries and communities, moving the majority of people, goods and resources. It is crucial to trade, economic development and impacts upon virtually every development initiative. Yet, for many Pacific countries, existing maritime transport services are increasingly unaffordable and unsustainable, making sea transport one of the region's most intractable developmental issues. The irony in this current situation lies in the region's history as the home of one of the world's most adept seafaring peoples, who used their superior boat building, sailing and navigational skills and knowledge to colonise one-third of the globe under sail and without metal.

This case study illustrates the argument made in Chapter 1 that the development paradigm used to view a particular developmental issue fundamentally affects the types of intellectual property issues that arise in relation to it. Viewed from the perspective of the dominant development paradigm, the solutions to the problems raised by inadequate sea transport largely lie in importing foreign technology, such as fossil fuel powered vessels. This ‘import foreign technology as a solution’ approach to development also prevails in many other areas, such as health, and more recently climate change. As we indicated in Chapter 5, the intellectual property issues this approach gives rise to, on a theoretical level at least, are unidirectional: they centre on the demand that receiving countries have intellectual property regimes in place as prerequisites for the transfer of the technology.

INTRODUCTION

International refugee protection is surrogate protection in cases in which the country of origin fails to provide protection from persecution for one of the Refugee Convention grounds. Thus, international refugee protection is premised on the absence of national protection. This chapter examines such lack of protection in countries of origin which are experiencing an armed conflict.

LACK OF PROTECTION

TEXTUAL AND CONCEPTUAL BASES

The refugee definition in Article 1A(2) Refugee Convention states that a refugee claimant must be outside the country of his or her nationality or, in the case of stateless persons, the country of habitual residence and must be unable or, owing to such well-founded fear, unwilling to avail him- or herself of the protection of that country. Thus, a refugee claimant must lack the protection of the country of origin, either because such protection is unavailable or because of an unwillingness to avail him- or herself of such protection. The requirement of lack of protection in the country of origin is linked to the well-founded fear of persecution clause because the existence of a well-founded fear of persecution presupposes the lack of national protection from persecution. The context of Article 1A(2) Refugee Convention further emphasises the requirement of lack of protection by the country of origin: Article 1C addresses cessation of refugee status in cases where protection by the country of origin becomes available again, thereby showing that refugee protection presupposes the lack of national protection. Moreover, the Refugee Convention's object and purpose of providing for international protection imply that States parties to the Refugee Convention are only obliged to provide refugee protection if adequate national protection is lacking. Hence, the textual and conceptual bases of the requirement that a refugee must lack the protection of the country of origin can be found in the refugee definition's wording, context and object and purpose.

It is important to distinguish between refugee protection claims which concern persecution at the hands of the country of origin and claims that relate to persecution by non-State actors. In cases in which persecution emanates from the State, the State's unwillingness to provide protection is presumed.