Cambridge, UK: Intersentia, 2015. xiii, 279 pp. €62.00, paper. ISBN 978-1-78068-225-9.
The protection of intellectual property has become an important yet contentious issue since the liberalization of world trade policies. Smaller developing countries, including those in the Pacific region, argue that intellectual property regimes are necessary to protect traditional knowledge, expressions of culture, and associated genetic resources from misappropriation by foreign companies such as pharmaceutical multinationals and, for example, the Walt Disney Company, which released the movie Moana (2016) based on sacred stories from the Pacific (see Facebook page: Mana Moana: We are Moana We are Maui). Existing intellectual property legislation, however, is not suitable to protect traditional knowledge mainly because indigenous expressions of knowledge cannot be ascribed to one identifiable inventor and also because indigenous heritage is usually much older than is allowed within the scope of intellectual property legislation.
At the same time, it is crucial to point out that the main motivation of international institutions such as the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) to introduce intellectual property regimes in small island developing states is at right angles with indigenous goals. Intellectual property is promoted internationally as a development tool, with development understood as the transfer of western expertise and knowledge to the global South. The underlying assumption of this unilinear perspective on development is that the transfer of intellectual property leads to innovation. This view, however, is based on a conception of creativity that is inapplicable in many countries in the global South, where creativity is much more a collective phenomenon embedded within social networks and where the market economy is not such a pronounced regulating mechanism.
The authors of this book therefore depart from an extensive and detailed critique of dominant intellectual property regimes that are entrenched in a particular neo-liberal development paradigm. Through a range of case studies based on Pacific Island countries, they demonstrate the extent to which the political economy of development and its associated discourse of intellectual property have expanded into some of the world’s smallest, undeveloped countries. Rather than focusing on the extent to which intellectual property regimes either further or undermine the objectives of development, this book examines the normative and epistemological assumptions underlying a neo-liberal approach to development. Needless to say, this also has far-reaching implications for the design of alternatives.
After the authors have set out in a lengthy introduction and an opening chapter how they problematize the current development of intellectual property regimes in small island developing states, they exemplify their critique by identifying how imported global intellectual property regimes have impacted on health and education in Fiji, Samoa, the Cook Islands, and Vanuatu. In chapter 2, they demonstrate the adverse impact of the law of patents on access to non-traditional medicines. In chapter 3, they show how existing regulations of copyright in Pacific Islands make many concessions to the global North agenda and thus frustrate the free flow of educational materials in small islands that are consequently unable to raise the educational standard of their young people. In chapter 4, the problems with the implementation of intellectual property regimes in the region are discussed through a comparison with the regulation of land tenure in the Pacific. A compelling argument is made that the introduction of an ideology of ownership, based on fixed rights rather that flexible rights associated with customary norms, leads to confusion as it disrupts traditional understandings of law.
The second part of the book turns away from a deconstruction of western regimes of intellectual property and aims at constructing an alternative approach. Here the authors draw on critical development theory and decolonization literature in order to show that both the concepts of development and intellectual property should be considered in a wider perspective with more attention for different cultural conceptions of knowledge and ownership. In order to oppose the commodification of knowledge and the dominant market-driven approach to the current regulation of intangible valuables, they outline a more pluralistic and culture-centered approach that weaves together a variety of state and non-state regulatory mechanisms that is overall more strongly grounded in the social and cultural realities of the Pacific region. The theoretical foundation for this alternative view is elaborated in chapter 5, while it is further explored in the following three chapters presenting three in-depth case studies of the development of sustainable sea transport in the Pacific Islands, of conflicting intellectual property-related claims made over Fijian paper bark cloth (masi), and of the regulation of traditional medicinal knowledge in the Cook Islands. From these examples it becomes clear that there is plenty of dynamic innovation in the Pacific, with many innovators circumventing intellectual property regimes from the global North and relying instead on customary ways of doing things, which are themselves constantly evolving as they respond to new circumstances.
The main argument of this book is that intellectual property policies in small island developing states should be based on existing cultural understandings of rights over and access to intangible heritage. Placing culture at the heart of intellectual property also draws attention to the fact that western intellectual property regimes are a blunt instrument to advance development. Since intellectual property rules are ultimately concerned with creativity, innovation, and knowledge, which are all culturally contextual, any approach of intellectual property legislation should also be culturally located and geographically distinct in order to make it socially and economically relevant.
The authors demonstrate compellingly that intellectual property legislation should always be embedded within the socio-cultural context in which it is implemented in order to achieve development goals. They do so by weaving together policy debates, development discourses, postcolonial theory, and a range of detailed ethnographic case studies from the Pacific but with wider relevance for other developing countries. The only comment to be made is that neither a bibliography nor an index has been included, which makes it impracticable to search for references. Apart from that, this book provides not only a powerful critique of current intellectual property regimes, but also an attractive alternative of how small countries may implement intellectual property legislation without compromising customary practices.
Toon van Meijl
Radboud University Nijmegen, Nijmegen, the Netherlands
pp. 877-880