6. Intellectual Property Consequences of Commercial Relations with Small States: A View from the Pacific

The close link between aid and trade means that for developing countries dependent to a greater or lesser extent on financial support from external sources, autonomy in determining the frameworks to support commercial relations with external partners are severely constrained. The agenda is driven largely by developed economies using laws with which they are most familiar and which consequently become integrated into trade agreements. For those countries which are persuaded to sign up to the World Trade Organisations (WTO)—and this includes several Pacific island states (PICs)—this means incurring obligations to comply with TRIPS and TRIPS Plus agreements (TRIPS stands for Trade-Related Aspects of Intellectual Property Rights). Even for those countries outside the WTO, regional trading agreements with developed economies such as Australia and New Zealand [PACER and the proposed PACER-Plus; PACER is the Pacific Agreement on Closer Economic Relations (see below)], or the European Union through inclusion in the Asia, Caribbean, Pacific group (EU-ACP Agreements) may include intellectual property obligations either expressly or obliquely—the so-called ‘spaghetti bowl’ of overlapping and intersecting free-trade agreements (A term coined by Jagdish Bagwati, ‘US Trade Policy: The Infatuation with Free Trade Agreements’ in Bhagwati and Krueger (eds) The Dangerous Drift to Preferential Trade Agreements, AEI Press, 1995). Historically, the purpose of intellectual property laws introduced into the legal systems of small states was to protect the commercial interests of colonisers, not the interests of indigenous people (Even today most applications are by non-indigenous people. See Susan Farquar, ‘A Regional International Property Rights Office for the South Pacific: Cost-Benefit Analysis’, Pacific Studies Series – towards a New Pacific Regionalism, Volume 3: Working Paper No 16, Asian Development Bank, Commonwealth Secretariat, Joint Report to the Pacific Islands Forum Secretariat, 2010). They were rarely used, poorly understood and expensive to implement. Post-independence many of these laws remain. Others have been modified and in recent years some attempts, albeit with limited success, have been made to bring within the same intellectual property umbrella indigenous perceptions of intellectual property, traditional knowledge and expressions of traditional culture. Among the underpinning difficulties are the failure of regional initiatives, tensions between different stakeholders, conflicting agendas at ministerial and local levels, fundamental misunderstandings about rights to intellectual property and lack of resources to implement or enforce legislative provisions. In attempting to both protect and preserve indigenous intellectual property and foster creative industries, promote tourism and utilize natural resources—including a wealth of bio-diversity, for commercial advantage, small states face a number of dilemmas. This paper looks at recent developments in Pacific island small states triggered by commercial relations and draws attention to some of the challenges that arise when the law tries to encompass very different value systems within national frameworks informed by international imperatives.