Intellectual Property Laws in the South Pacific: Friend or Foe? (Article) [2003] JSPL 16; (2003) 7(1) Journal of South Pacific Law

INTELLECTUAL PROPERTY LAWS IN THE SOUTH PACIFIC: FRIEND OR FOE?

The protection of intellectual property in the countries in the South Pacific region^[1] has recently become a hot issue. Increasingly, intellectual property laws are being claimed to be a solution to a wide range of problems, from poor economic performance, to disintegration of cultural knowledge^[2], to bio-piracy by multinational companies^[3]. Consequently there has been an explosion of intellectual property legislation^[4] and public calls for the introduction of more protection^[5]. At the recent South Pacific Forum Economic Ministers meeting, the importance of protecting intellectual property rights was recognised as being a matter of priority. It was also noted that traditional ecological knowledge, innovations and practices, and traditional knowledge and expressions of culture, are key resources for the region.^[6] Pressure to strengthen and reform intellectual property laws is also being applied on some countries in the region by the World Trade Organisation (“WTO”) through the Trade Related Aspects of Intellectual Property Rights Agreement (“TRIPS”).^[7]

The first section of this paper considers the justifications and historical development of intellectual property system in Europe and contrasts it with the traditional approaches to intellectual property in the South Pacific prior to colonisation. It then considers the current main needs for intellectual property protection in the region; and classifies them into three parts: as an incentive for economic development; protection of traditional knowledge and culture; and protection for genetic resources. Third, it provides a brief outline of current systems of intellectual property protection in the South Pacific. Fourth, it considers whether or not the existing laws are protecting or advancing the needs that had been identified in the previous section.

The final section of the paper is devoted to examining ways to improve intellectual property protection in the region. In particular, it considers whether the best way forward is to continue with the current trend of introducing legislation modelled to a large degree on Anglo/American legislation. It argues that it is both ideologically and practically impossible for western-style intellectual property systems to meet the current needs for protection. For the purposes of this paper, western-style intellectual property systems are taken to mean copyright, patent, trademark, and design legislation; their accompanying registration offices and administrators, for example, patent and trademark attorneys; and the specialised courts and tribunals which apply them.

This paper does not go so far as to suggest that western-style intellectual property laws should never be introduced. However, it suggests that careful attention should be given to crafting solutions to problems within the context in which they will operate, instead of merely copying a foreign system. As Corrin-Care notes:

[I]n most countries of the region the constitution makes it clear that introduced law was ‘saved’ as a transitional measure. This approach is emphasised by those preambles that stress the importance of indigenous values and by the ‘cut-off’ dates imposed to prevent continued application of foreign law. The countries of the South Pacific were not intended to be bound forever to English common law.^[8]

Thus, this paper argues that intellectual property protection is an area where a start can be made in thinking afresh about the issues involved, to create a system specifically designed with the needs and realities of the region in mind.

1. The History and Rationale of Intellectual Property Protection in the West and in the South Pacific

Intellectual property is property that does not have a physical existence, for example a song. Although the song may be written down on a piece of paper, the property in the song is different from the property in the piece of paper. In Europe it was not initially recognised that intangible property was a type of property over which rights could be held. Then, in the sixteenth and seventeenth centuries, artists and inventors began to argue that they should be given special rights over their works as an incentive to expend time and creative labour in producing them. Why should we spend years developing a new song, the argument went, if as soon as we sing it in public everyone else learns it and sings it as well without returning any benefit to us? Eventually, it was agreed that authors and inventors should have certain exclusive rights to their works for a period of time. Intellectual property rights were thus introduced for two policy reasons: first because it seemed “unfair” that, as intangible property can be copied so easily, an author who has expended time and labour reaps no benefit; and second because giving protection to creative works was thought to encourage the production of more works.

This philosophical justification of the western intellectual property system has given rise to a certain number of distinctive features of the system. The first is that the protection given is limited protection. The aim is to give just enough protection to provide an incentive to create, but not enough that the advancement of science and the arts would be hindered by too much personal ownership. The biggest limitation is in terms of years of protection – 20 years for patent^[9], and the life of the author plus fifty years for copyright. After the term of protection has expired, works go into the “intellectual commons”, or public domain as it is sometimes called, – a place where everyone is free to use them without the permission of anyone else. The reason for the intellectual commons is to ensure that there is a ready pool of ideas and works which can be drawn upon to form the basis of new creations. It is what Boyle terms the ‘implicit quid pro quo of intellectual property’.^[10] The second feature of this system is that protection is predicated upon the public being given access to the work. In the case of industrial property this is done by providing that it is only once an invention, trademark or design has been registered that protection is available. For copyright, there are compulsory licensing provisions and fair use provisions that ensure public access to works.
The origins of intellectual property protection in the South Pacific region are a lot harder to identify. What is clear is that the concept of ownership (either by individuals, families or communities) of songs, dances and other forms of traditional knowledge and custom has been well established for a long period of time. Jolly states that the knowledge of styles of singing and dancing, of sculpting slit-gongs or weaving mats, of myths of origin told in local language, together with the associated rights of performance, was a commodity exchanged between local groups in the past.^[11] Dr Jacob Simet, Executive Director of the PNG National Cultural Commission stated:

We have had songs, traditional knowledge and so on for hundreds of years. There was no doubt as to who originally owned them – they were originally owned by one person who passed them on to his or her clan. There were clear customary laws regarding the right to use the songs and the knowledge. There was no problem in the past.^[12]

Traditionally rights to certain songs and carvings were protected by tabu and often magic.^[13] Rights to use such songs and designs could be purchased with payments of food, mats and other forms of currency.^[14] For example, on the island of Ambrym in Vanuatu there is a famous ceremony known as ole Rom. This ceremony involves dancing in highly elaborate costumes. As legend has it, a local girl made the first costume to seduce a young man from her village. She enticed him into the bush where she revealed how the costume was made. Once he knew the secret he killed her and sold the rights to make copies to other men. It is still tabu to see a Rom costume being made. If someone transgresses this rule they must pay a fine (a pig) to the chief, then have their backs whipped with the leaves of a stinging plant called the naggalat, the poison from which burns the skin like fire for several days.^[15]

Traditional intellectual property protection in the region was different from western intellectual property protection in that it was not based on the premise of a limited time span nor public disclosure. Thus, traditionally in the region, no meaningful distinction was drawn between tangible and intangible property. Rather, just as a community owned an area of land, they owned the right to certain intangible property such as dances, songs and knowledge about the medicinal uses of plants.

This background is necessary to understand the developments and issues in the law of intellectual property in the region today.

2. What is the need for Intellectual Property Protection in the South Pacific Today?

There are three problem areas in the South Pacific that intellectual property is being called upon to solve. The first is the region’s lack of development of new technologies and economic advancement. Some commentators argue that more protection for intellectual property in the region will increase foreign investment and stimulate growth. For example, Mohammed Ahmadu argues:

The limited scope of protection offered by the present patent system, may have been responsible for the low level of direct foreign investment from transnational pharmaceutical companies. This is because of the fear that their innovations may not be fully protected by the legal system. . . . . To this end, for any new patent system to succeed in stimulating the development of a pharmaceutical-industrial-complex in Vanuatu, it has to direct itself to the attraction of foreign investment, which would in turn develop the appropriate pharmaceutical technology that is needed.^[16]
Similar arguments are also being used by the Intellectual Property Office for Papua New Guinea (“IPOPNG”). The IPOPNG argues that an intellectual property regime is justified on the following bases: it promotes development through innovation and creativity, it promotes investment, it promotes quality of products and creates employment.^[17] These arguments are also being used by international organisations such as the WTO (through the TRIPs agreement) and UNESCO. UNESCO:

. . . encourages governments to adopt measures which promote creativity and increase the production of national literacy, scientific, musical and artistic works, with a view to reducing dependence on foreign sources. A first step in this direction is to help them prepare legislation, and appropriate enactment policies, and to encourage them to adhere to the various international conventions on the protection of copyright and neighbouring rights.^[18]

The other two major issues or needs for intellectual property in the region today are: protection of genetic resources; and protection of traditional knowledge and culture. The South Pacific is extremely biologically diverse and is rich in natural resources. Many of the plants have been used by the indigenous population for centuries to provide cures for various illnesses. This has led multinational drug companies to come to the region looking for resources from which to manufacture new drugs and conduct experiments. These drugs are then often patented outside the territory with no benefits being returned to the indigenous population. The best example of this is the kava plant, the pulverised roots of which make a ceremonial and social drink in many countries in the region. The medicinal and sedative properties of kava were initially only known in the South Pacific but today there are growing numbers of kava-based preparations in European and United States markets, some of which have been patented.^[19] For example, L’Oreal has obtained patents on the use of kava to stimulate hair growth in the United States and Europe, with profits in the millions.^[20] It appears that no benefit has gone back to the South Pacific.

On an even more personal level, human genes from South Pacific islanders have been appropriated by multi-national companies for commercialisation. For example, in 1994 the U.S. Patent and Trademarks Office approved patents on the cells lines of a Hagahai man from Papua New Guinea.^[21] The patents were granted to the U.S. Department of Health and Human Services and the National Institutes of Health (NIH). However, after a public outcry, NIH abandoned the patent in 1996. Despite the outcry, the issue of exploitation of genetic resources of Pacific Islanders has not gone away. Recently the Cook Islands have been mooted as a possible site for hosting pig-cell transplants in volunteers in an effort to find a cure for diabetes.^[22]

The complaint that is made about these developments is that the plants (and people) from which these drugs are made belong to the indigenous people. Often their traditional knowledge is also what leads scientists to the plants’ medicinal qualities. The “wrong” that is complained of here is that the indigenous peoples’ traditional knowledge is taken and profits made, with no returns going back to them.

The last issue for which intellectual property protection is looked to for a remedy is the increasing exploitation and inappropriate commercialisation of their traditional knowledge and expressions of culture.^[23] This is a similar complaint to the complaint about biopiracy. For example, there are concerns in the Cook Islands that entrepreneurs in Hawai‘i are profiting by marketing elements of Cook Islands culture, including drumbeats, dances and songs.^[24] This issue again has a basis in the traditional South Pacific concept of intellectual property, as it sees traditional knowledge and representations of culture as deserving the same level of protection as tangible property.