Making the case for a pluralistic approach to intellectual property regulation in developing countries

Abstract

Many of the poorest and least developed countries in the world are currently experiencing pressure to adopt global intellectual property regimes in order to promote their socioeconomic development. These regimes are claimed to be necessary to stimulate innovation, creativity and the transfusion of new knowledge. However, international organizations and developing agencies making such claims often overlook the existing local intellectual property systems that exist in many developing countries. These occupy much of the same regulatory space as global intellectual property rights, but are often based on very different value systems and cultural and philosophical underpinnings. The introduction of a global system based on private property rights and the market economy is therefore likely to have significant effects both upon these local regulatory systems and upon the social and economic relations of the society of which they are a part. This paper, which takes as an example the Pacific Islands region, argues that consideration be given to a pluralistic approach to intellectual property regulation, one that involves the creative weaving together of both global and local systems for the production and use of knowledge and innovation.

Prima facie reasons to question enclosed intellectual property regimes and favor open-source regimes for germplasm

“…Most likely, innovation systems that will be able to effectively support a more decentralized, diverse mix of approaches to developing localized plant varieties will need to be compatible with a wide range of governance structures as well. In other words, different geographies, ecosystems, and histories may mean that plant genetic resources are best managed by different sizes and types of organizations from one community to the next, and which acknowledge the many different types of existing intellectual property relations and (still-evolving) traditions ( Forsyth, 2016 ).…”

“…Since the 1960s, a jumble of international governing organizations have attempted to regulate IPPs for plant genetic resources. During this time, significant pressure by individual governments and international institutions has been exerted to adopt what could be called a “global IPR”, which has been “developed principally in the Western legal context… principally a U.S. utilitarian approach” ( Forsyth, 2016 ; see also Henry & Stiglitz, 2010 ).…”

“…Further, decentralized approaches may be better equipped to deal with the complex relationship between the diversity of cultural practices, crop biodiversity, and the diversity of localized and alternative IPPs ( Forsyth, 2016 ). Stability and distinctiveness requirements of current IPPs, as well as their emphasis on genetic factors above all else can pose obstacles to management strategies that produce valuable and adaptable, but “unstable”, cultivars.…”

Domain A: Rights and Access to Nature—Land, Water, Seeds and Biodiversity

“…Along with intellectual property rights (IPR)-the rules and rights that determine who nominally owns genetic material-the legal frameworks that dictate what seeds and livestock breeds can be sold on the market are also of paramount importance. Such globalized, Westerndeveloped and business-focused 'protection' for seeds, germplasm and animal breeds are unsuited to agroecology and need to change in favour of local intellectual property systems (Halpert and Chappell 2017;Forsyth 2013) Miranda Forsyth (2016) notes that customary systems for protecting intellectual property should not be based on "romantic visions of returning to some imaginary pre-colonial past, but rather on the pragmatic reality that these existing systems are already culturally attuned to promoting goals such as knowledge diffusion and promotion of creativity and innovation". To illustrate this point, she discusses a variety of customary institutions in the Pacific Islands, such as tabu (secrecy regimes), talanoa (oral research and data exchanges), tufuga (traditional crafts guilds) and other biocultural protocols that preserve and protect not just traditional varieties but also traditions and customs, including those governing interactions between humans and nature.…”

TRIPS compatibility of Bangladeshi legal regime on geographical indications and its ramifications: A comparative review

“…However, WTO members had no other options but to accept the full package of obligation when TRIPS came into force. Concomitantly, many developing countries and least developed countries (LDCs) adopted global IPRs standards in their municipal laws either to cope with their trade partners or to reduce immense amount of pressures by the developed countries (Forsyth, ). Thus, TRIPS complaint legal regime is no more a rhetoric but a global reality (Drahos, ).…”