The aff colonizes informal and non-Western economies by centralizing the state as the regulator of knowledge and innovation.

Whilst there is a good deal of variation in the approaches of these different regulatory regimes, most of them focus on drafting new legislation, centralising the state as the regulator of traditional knowledge and creating exclusive property rights in traditional knowledge that are vested in communities or groups (see Forsyth 2011, 2012, 2013a). In general, the international treaties and legislation actually in force or in development deal with traditional knowledge by conceptualising it as another subject-matter for the global intellectual property regime to regulate. This is entirely consistent with the dominant, economics based, Anglo-American approach to intellectual property that views intellectual property rights essentially as commodities, in which their fundamental value is to produce revenue. Thus, although these approaches are often referred to as sui generis, in many respects they are simply extending the global intellectual property system, rather than trying to regulate traditional knowledge in a truly original way. This can be seen by the way in which the IGC has divided traditional knowledge up into separate categories of traditional knowledge associated with genetic resources, traditional knowledge and traditional cultural expression, thus following western intellectual property categories and undermining indigenous understandings of the three areas as intrinsically linked. Traditional knowledge is seen as being able to be abstracted from the social context in which it has been developed, and turned into a form in which it can be traded in the global market. This economic focus is reinforced in the area of genetic resources and their associated traditional knowledge by an emphasis on benefit-sharing agreements (see Kariyawasam 2008:84; WIPO 2013). As pointed out by an increasing number of scholars, however, this is problematic because the focus on compensation and justice has led to the sidelining of the need for nurturing traditional and local knowledge and innovation (Robinson 2008), and has also led to numerous cases of community conflict (see, for example, Peteru 2008; Vermeylen 2013).

Whilst these new developments are certainly preferable to ignoring the intellectual property issues surrounding the global North’s recent appreciation of the value of traditional knowledge, it is an extremely limited approach. It fails to take into account the ontological and epistemological context from which the knowledge and innovation arise; instead embedding them within global normative frameworks that operate according to a very different register of value. This follows the same fallacies that were tried, and failed, with regard to transforming customary land and marine tenure into exclusionary and restrictive Western legal categories (Vierros et al. 2010). Bragdon makes similar observations in the context of discussions about genetic resources and local knowledge:

Currently, the focus of discussions in intergovernmental fora, including the IGC, is on traditional knowledge over traditional resources and not on this dynamic technology development process by farmers where all gennplasm—modern or traditional—is treated as potential input for direct use or further improvement. In international fora the emphasis is on genetic resources per se and the role of farmers in conserving local and traditional landraces, rather than on the innovative process by which genetic resources are continually refined and developed (Bragdon 2013).

Related problems can be identified in the tendency to value traditional cultural expressions purely for their aesthetic and commercial purposes in the development of new economic opportunities amongst indigenous populations. For example, in referring to the regulatory strategy over sand drawings, an important part of Vanuatu’s cultural heritage, the Director of the Vanuatu Cultural Centre stated:

the drawings are often showcased as a form of decorative folklore for the tourist industry and other commercial purposes. If left unchecked, this tendency to appreciate sand drawings on a purely aesthetical level may result in the loss of the tradition’s deeper symbolic significance and original social function. Sand drawing is a fundamental form of traditional communication and conceptualization, which has the potential to play a central role in developing cultural identity and maintaining cultural continuity for communities in Vanuatu through the promotion of creativity and the preservation of diversity (Vanuatu Cultural Centre 2010).

The economic focus that is being adopted in regard to the regulation of traditional knowledge can also be demonstrated by the virtual exclusion of customary law from the treaties being developed, and its marginalisation in much existing and draft traditional knowledge statutes. Thus Tobin has observed that the IGC draft treaties have been increasingly ‘shorn’ of their references to customary law, and that the European Union’s 2012 draft treaty for the implementation of the Nagoya protocol makes no reference at all to customary law and restricts protection to a small fraction of traditional knowledge (Tobin 2013:161). Customary law is seen as being too uncertain to be used within a market-based system in which the concern is to ensure ease of use for the ‘buyers’. 9

Intellectual Property and the Informal Economy

This concern with the way in which traditional knowledge is becoming another site for the expansion of the global intellectual property regime, and its reductionist economic focus, is mirrored by parallel developments in regard to local innovation. There are a number of current projects and scholars seeking to find ways to make intellectual property work for the world’s poor. 10 For example, Madhavi Sunder argues that ‘intellectual property rights in poor people’s knowledge are increasingly considered a key to third-world development’ (Sunder 2007:111). She observes:

after a decade of resisting the Western imposition of intellectual property, now many in India— from the intellectual property professors and lawyers in the cities to the farmers and artisans in the villages—were beginning to ask: how can intellectual property rights work for them? TRIPs protected the knowledge and economic interests of the developed world, the rich corporations of the West. Can intellectual property be a tool for protecting poor people’s knowledge as well? Many seem to think so (ibid.:98).

As part of this new interest there is an emerging focus on the way in which intellectual property rights can be used as a stimulus for innovation in the informal economy. For example, following recommendation 34 of the 2007 WIPO Development Agenda ‘to conduct a study on constraints to intellectual property protection in the informal economy’, a study was carried out on the link between informal economy and intellectual property through three country studies in Africa (De Beer at al. 2013). At a presentation of the findings at the WIPO Committee on Development and Intellectual Property meeting in May 2014, a number of panellists observed that the project revealed the extent of innovation occurring in the informal sector that had hitherto been overlooked. Sacha Wunsch-Vincent, senior economic officer in the WIPO Economics and Statistics Division, characterised it as ‘constraintbased innovation’ that mostly consists of adapting, applying and improving existing knowledge’ (Astruc 2014).

This WIPO project is complemented by a growing body of research into what is sometimes referred to as grassroots innovation (De Beer et al. 2013:18). Emerging research shows that grassroots innovation occurs in the context of particular social and cultural understandings about the use and transmission of knowledge, and is often subject to non-state systems of intellectual property regulation, such as informal contracts, codes of access and customary norms. For example, wind turbine development can originally be traced to a culture of collaborative craft production and a tradition of cooperative organisation in Denmark. Ely et al. observe that ‘Social networks built up shared knowledge, experience and ideas about turbine construction and use’ (Ely et al. 2013:107).

While WIPO’s informal economy project is extremely valuable in starting to chip away at the notion that innovation only occurs within the formal economy, it raises the question about whether the project may lead to a colonisation of this new space by the global intellectual property regime, rather than being used as a springboard to explore fresh approaches about the regulation of innovation and creativity in the informal economy. There are suggestions that this project may be used to develop policies to move people from using ‘alternative knowledge appropriation strategies’ to formal intellectual property. For example, Herman Ntchatcho, senior director of the Department for Africa and Special Projects of the WIPO Development Sector, stated that, ‘recognising interactions between formal and informal economics, at some stage of the journey many of the entrepreneurs need to move to the more formal spheres of activity, particularly where IP and innovation are concerned’ (Astruc 2014). This reflects the same type of ‘imperial narrative of progress and advancement, a narrative which posits some societies as having achieved its promise and as other still en route towards it’ that has proved so problematic in development to date (Pahuja 2011:212). Further evidence of the potential for colonisation comes in a policy recommendation at the end of the central study paper that ‘an important policy challenge will be to make IE [informal economy] actors aware of the possibilities that formal IPRs offer’ (De Beer et al. 2013:48). This informal economy example is just one of many components of the current expansion of the global intellectual property system into the developing world on the uncertain premise that it promotes ‘development’ and is necessary in the absence of existing regulatory structures.11