The plan enables colonial extraction from non-Western knowledge systems across the planet.

Although the global intellectual property regime 1 is often positioned as being the only intellectual property regime across the globe, there are currently many different regimes regulating the production of, and access to, a range of intangible resources. These alternative intellectual property regimes—such as customary systems, informal contracts, trade secrets and other informal normative systems—are often highly relational and deeply embedded in the social, cultural and political matrix of the group they regulate. Today many of these systems operate in pockets where the global intellectual property system has not as yet spread, but these areas are quickly diminishing as the global system continues to colonise both new geographical regions and also new types of subject matter.

This paper argues that local knowledge and innovation systems are often rendered invisible by the dominance of the global intellectual property system. This is largely due to the state-centric, positivistic paradigm within which the global system, and the institutions that manage it, operate. This in turn means that when new types of intangible resources or innovation start to be recognised as valuable by the global North, such as traditional knowledge, there is a tendency to fail to see the existing regulatory structures that surround them as these structures rarely operate at the level of the state. This type of myopia has been referred to as the ‘blank slate fallacy’ (Twining 2009:285–86) by legal pluralists who reveal a repeated pattern of marginalisation of non-state regulatory orders by state-based legal systems (see, for example, Griffiths 1986; von Benda-Beckmann 1985:187). As a result, the global intellectual property system often colonises these ‘new’ regulatory spaces through imposing transplanted regulatory regimes. The existing systems are often changed in fundamental ways as a result of the new rules, ideologies and categories of winners and losers, introduced by the new system.

This paper explores these issues through a discussion of the role of magic or spirits in Melanesian intellectual property systems, first identifying their importance in local intellectual property systems and then asking what happens when this dimension is left out by the introduction and dominance of the global intellectual property system. We see how the global system approaches the regulatory challenge of protecting traditional knowledge by separating the ‘object’ of protection (traditional knowledge) from the system that formed the necessary environment for its production. I then discuss two problematic consequences of failing to take local intellectual property systems into account when extending the global intellectual property regime into new areas. First, the creation of new forms of property rights is likely to interfere with the existing systems in potentially corrosive ways. This is linked in part to what Drahos has referred to as the ‘tragedy of commodification’ (Drahos 2014:203) as it involves the introduction of new forms of property rights geared towards facilitating exchange in a market system. The second problem is that it means the true value of these knowledge and innovation systems is missed by the global North, particularly the ways in which they suggest the need to expand our epistemic and metaphysical horizons. These lessons are particularly important in relation to climate change, where the value of seeing the earth as a balanced system, a central tenet of many local knowledge systems, has particular resonance (ibid.:206–07).2 The final part of the paper then explores one possible approach that could be used in order to make room for these local systems in intellectual property regulation, namely intercultural legal pluralism.