Second Chance for Pacific Island Countries to Avoid the Intellectual Property Straightjacket

Last week it was reported that the World Trade Organisation’s TRIPS Council have given Least Developed Countries (LDCs) an exemption from implementing any intellectual property laws until 2021. So what does this mean for the Pacific Islands?  Simply put, it means that Vanuatu, Solomon Islands and Samoa, all of whom are currently classified as LDCs, have been given a “second chance” to develop their intellectual property frameworks. Before this decision was made, these countries were legally required to implement and enforce virtually the same levels of intellectual property protection as developed countries as a result of their WTO obligations. This was problematic for a variety of reasons. First, considerable differences in technological capacity between developed and least developed countries means that intellectual property laws impede, rather than assist technological development in low income countries. During their own early periods of industrial development, most developed countries did not have strong intellectual property laws. This has prompted some academics to claim that the demand by developed countries that everyone else must now have strong intellectual property laws is the equivalent of “kicking away the ladder.”  Second, intellectual property laws can limit access to medicines, educational resources, agricultural inputs and climate control technologies. Third, intellectual property regimes are very expensive to implement and require highly specialised knowledge, and therefore require diverting funds and people away from much needier areas such as health and education.

So, the decision last week is one that should be warmly welcomed by the governments of Vanuatu, Solomon Islands and Samoa. Importantly, the Least Developed Countries group who were negotiating for the exemption managed to get an agreement that, unlike in previous exemptions, there would be allowance for “rollback” of laws. LDCs are therefore free to repeal or amend any intellectual property laws that they have already enacted which do not promote development objectives. Now is a very important opportunity for these countries to think creatively about exactly what sort of an intellectual property regime would best support technological innovation, stimulate creativity and encourage access to knowledge in their local context (for example see one alternative approach in regard to agriculture). Important policy space has been opened up through the efforts of negotiators from LDCs, who are rightly convinced of the dangers of intellectual property laws for development in such countries. Let us hope that this flexibility is used wisely in the region, and that the default solution of simply cutting and pasting intellectual property laws from Australia and New Zealand is not adopted through lack of imagination to create an alternative.

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