Many Pacific island countries are currently considering whether to introduce intellectual property legislation, or whether to amend existing legislation. One of the drivers of this process are negotiations to join multilateral Free Trade Organisations such as the World Trade Organisation and to sign bilateral Trade Agreements such as the European Union’s Economic Partnership Agreement and the proposed PACER Plus agreement with Australia and New Zealand. Another driver is concern that the traditional knowledge of the country is currently not adequately protected from the risk of exploitation by third parties. Decisions about what sort of intellectual property regime exists in a particular country can have significant impacts on that country’s development and the lives of its people, particularly in the areas of agriculture, education, health and adapting to climate change. International experience has demonstrated that although intellectual property laws can bring benefits, they can also undermine development by threatening food security, restricting access to knowledge and medicines, and impeding technological transfer and development. State-based intellectual property regimes may also have an impact on customary laws and institutions that currently regulate access to traditional knowledge in the country. The purpose of this research project is to enable a better understanding of the potential advantages and disadvantages of different models of intellectual property protection in the particular context of the Pacific island countries, to better inform the decisions that will need to be made concerning these issues in the next few years.
- Identify synergies between customary approaches to the protection of indigenous traditional knowledge and state-based intellectual property regimes, to create a culturally appropriate approach to intellectual property protection in the region.
- Critically analyse the likely advantages and disadvantages of state-based intellectual property regimes on development in the Pacific Island Countries;
- Identify an approach to intellectual property in the region that maximizes the benefits of intellectual property laws and avoids or minimizes their disadvantages;
- Inform Australian, New Zealand and European Union policy in Free Trade Agreement negotiations with the region by charting an approach that ensures consistency between its trade-related intellectual property objectives and its broader development objectives for the region;
- Inform and support the Pacific Island Countries in adopting a harmonized approach to the negotiation of intellectual property provisions in FTAs, as required by the negotiation processes
- What are the Pacific Island Countries’ needs and capabilities with regard to state-based intellectual property law regimes?
- What are Pacific Island countries’, Australia’s, New Zealand’s and Europe’s intellectual property-relevant development objectives for the region?
- How can these best be achieved/ can these be achieved?/ should they be achieved? in PACER Plus and the EPA?
- What lessons can the Pacific Island Countries learn from the rest of the world with regard to the impact of intellectual property laws (positive and negative) on development?
- What non-state regimes currently exist in the region to regulate access to traditional knowledge?
- How can these best be supported in light of the challenges to traditional knowledge posed by globalisation?
- Which aspects, if any, of customary approaches to traditional knowledge should be integrated into state-based intellectual property laws?
Theoretical approach: The project will adopt a comparative and a legal pluralist approach to the research questions. The comparative approach will be both a comparison of EU and Australian approaches to the issues involved, and also involve comparisons across the region. The aim is to learn as much as possible from experiences in individual countries in the region and then to apply these lessons to other Pacific Island Countries. The rationale is that solutions to problems developed in other Pacific Island Countries have a much higher chance of working than solutions that are just “cut and pasted” from western models: they will have more legitimacy and be perceived as less of an external imposition.
The legal pluralist approach is essential because of the importance of the impact of customary regimes in the region upon the issues under consideration, and the fact that state laws in the region are often only enforced at a superficial level, leaving much of the real governance at a community level to be exercised by customary authorities. A pluralist approach also takes into account the complexities of the relationships between international and national laws.
This project will adopt a broad view of development, drawing upon Sen’s theory of development “as a process of expanding the real freedoms that people enjoy” rather than a narrow view that identifies development with a single objective such as social modernization or rise in personal incomes (Sen, 1999, 3). Adopting such a broad lens will allow a holistic view of the impact of intellectual property regimes in the region to be obtained, and measure “its welfare-generating outcomes not only by economic growth but also by distributional effects” (Chon, 2006, 2815).
- Focus areas: the investigation will focus on four key areas: public health, education, climate change and agriculture.
- Focus countries: In order to be legitimately regional, the study will focus on six countries that represent a cross-section of three factors: a particular region (Melanesia, Micronesia and Polynesia), a state of development (least developed and developing), and membership (or not) of the WTO. These countries are Vanuatu, Samoa, Kiribati, Nauru, Tonga, and Fiji.
Research plan: The field-based research will be carried out primarily by Drs Forsyth and Serrano and Sue Farran will act as an external moderator as well as contributing to the desk-based research. The research will involve a combination of desk research and fieldwork as follows:
- A literature review of (a) studies concerning the relationship between intellectual property rights and development issues specific to small island developing states and developing countries more broadly; (b) international literature on synergies between traditional knowledge and IP regimes; and (c) anthropological and ethnographic literature concerning customary systems for the protection of traditional knowledge in the PICs;
- Textual analysis of all relevant state party documents concerning development and draft texts of EPA and PACER Plus; and all the Pacific Island Countries’ IP legislation, case-law and related literature;
- In-depth interviews in each of the focus countries with key stakeholders involved in the governance, use, implementation and enforcement of intellectual property systems, key actors in the customary legal systems, and associated informants in civil society. Where appropriate, focus groups will also be used to debate issues where there is a diversity of opinions on a particular matter. These interviews will be conducted primarily face-to-face and also by telephone and email.
- Two categories of case-studies will be generated.
- The first will be case-studies in each of the four focus areas showing both advantages and disadvantages of intellectual property laws in each of the focus countries. The case-studies will be reflected upon in the context of what each example says generally about the whole area (education, health, climate change and agriculture) it represents, and also to other critical developmental issues facing the region.
- The second category of case studies will consist of examples where indigenous cultural knowledge has been exploited both beneficially and detrimentally for the local community. One positive and one negative example will be taken from each of Micronesia, Polynesia and Melanesia. The focus will be on finding out what customary regimes apply in each case, how these worked or did not work in the particular instance and why, and identifying how they could be reinforced for the future.
Each of the case-studies will be primarily based on interviews with all relevant individuals to ensure that as broad a cross-section of opinions and information is obtained as possible. The lessons learnt from the case-studies generated will be reflected upon in the context of the region as a whole, and different factors affecting their applicability to each country will be examined.
- Public workshops, seminars and an international conference will also be held in the six focus countries and Australia at strategic points throughout the project to share progress, and to stimulate both academic and practical discussion that will feed back into the analysis.
Communication of Results
The following communication of result strategies will be adopted:
- Book: The publication of a book provisionally entitled “Between Custom Dances and Computer Software: The Role of Intellectual Property in the Pacific Islands”.
- Policy paper: A policy discussion paper for the Australian and Pacific Island Countries governments outlining the key findings of the project and setting out a series of policy recommendations will be written and presented to key individuals.
- Peer-reviewed academic articles: Articles in relevant, peer-reviewed academic journals of international standing will be published
- Conferences, workshops and seminars: an international conference on intellectual property -related issues in the Pacific Islands will be held at the University of the South Pacific in Vanuatu. Various demand-led knowledge transfer activities in the form of public workshops and specialized seminars will also be carried out throughout the region and in Australia.
- Web-portal: the project will establish a web portal to present information about the project, develop regional capacity and disseminate intellectual property -related information in the Pacific Islands context. An email discussion list will also be established to engage as many key stakeholders as possible in the project and keep them informed.