Decolonising Copyright: Reconsidering Copyright Exclusivity and the Role of the Public Interest in International Intellectual Property Frameworks

International intellectual property frameworks conceive of copyright exclusivity as a largely individualistic, westernised and capitalistic beneﬁt which must be balanced against and limited by the non-commercial, competing public interest. This is expressed primarily by way of limitations to and exceptions from the norm of exclusivity recognised within these frameworks. This article argues for an alternative interpretation of copyright exclusivity as being justiﬁed by the public interest. However, unlike the works of Geiger et al., this interpretation is not premised upon the constitutional and quasi-constitutional patterns accounting for the public interest foundations of IP. Instead, it is premised upon the conceptualisa-tions of indigenous communities within the Global South relating to exclusivity over intangible property for the communal beneﬁt. This article argues that a paradigm shift in the international community at a supranational level, such as the removal of the TRIPS Agreement from the WTO, is needed in order to better reﬂect the norms and values of the Global South. By reassessing the nature of copyright exclusivity rather than delegating conversations about non-commercial communal needs to limitations and exceptions, the Global South is no longer seen as mere passive receptors of Western norms and values, but as active participants with inherent value in the creation of a truly global IP framework.


I. Introduction
This article will present a higher-level critique pertaining to the role of the public interest in the current global intellectual property (IP) framework.It will be explained that the international IP system understands copyright exclusivity as a largely individualistic and commercial benefit which exists alongside limitations and exceptions which detract from this exclusivity so as to accommodate the demands of the public interest.In so far as the individualistic justification for copyright exclusivity adopted within the international IP framework falls short when applied to the Global South, so-called flexibilities exist with which to create limitations and exceptions in the public interest.
This article proposes a radical paradigm shift in arguing for the adoption of an indigenous-inspired understanding of copyright exclusivity whereby the public interest is a central justification for this exclusivity rather than an exception to it.In this way, considerations of the Global South as a group of nation states in delayed stages of development which require deviations from the developed norm of exclusivity are altered to a less patronising contemplation of the Global South as a distinct socio-cultural body capable of offering a unique alternative (or at least, an additional) interpretation of copyright exclusivity itself.This counter-hegemonic interpretation envisions copyright exclusivity being justified by way of the public interest, premised upon the understanding of individual exclusivity as a communal rather than individual benefit within indigenous communities in the Global South.In other words, this article reimagines copyright exclusivity as not being limited by the wider public interest, but finding its legitimacy within the public interest.This newly-envisioned symbiotic relationship between the wider public interest and copyright exclusivity is used to reject the false narrative evidenced within the literature which presents a largely binary choice between the international norm of copyright exclusivity and the protection of the wider public interest.
It will conclude by considering, in turn, four possible means of addressing this issue as posited by the academic community: the creation of a constitutional clause pertaining to IP; interpreting the Agreement on Trade-Related Aspects of Intellectual Property ('TRIPS Agreement') through a 'pro-development' lens; the removal of the TRIPS Agreement in toto; and the removal of the TRIPS Agreement from the World Trade Organisation (WTO).

II. Copyright exclusivity and the contested role of the public interest
IP consists of many different facets: copyright, trademark, design law, patents and so on.The essence of copyright is to create property rights in the subject-matter of protection -despite its intangible nature making it easily divisible, IP is an essentially exclusive regime which incentivises and rewards creators with a limited monopoly over a bundle of ownership rights. 1 This bundle of rights usually 1.The public interest as limitations to and exceptions from exclusivity This largely individualistic and economic incentivisation theory which provides the primary justification for copyright exclusivity in the West belies the interests of other members of the community.in so far as the public interest is concerned, it centres on the furtherance of economic or commercial rather than broader, social interests.For this reason, IP systems must, according to international standards, balance the protection and enforcement of IP rights expressed through exclusivity with the public interest considerations which support a deviation from this exclusivity.These deviations due to the wider public interest are expressed in international terminology by way of limitations or exceptions to the bundle of rights enjoyed exclusively by the copyright owner. 5his distinction between a private benefit expressed through exclusivity and the public interest expressed through exceptions and limitations can be seen in Arts.7 and 8 of the TRIPS Agreement.Article 7 takes cognisance of the competing interests of producers and users of technological knowledge and calls for an equitable balancing of these interests, stating that IP rights must be used 'in a manner conducive to social and economic welfare, and to a balance of rights and obligations'.This should be interpretated in line with Art. 8, which 'formulates the general guidelines to be observed by WTO members when they adopt exceptions to the exclusive rights conferred by IPRs'. 6It states the following principle: Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.
Examples of limitations or exceptions in the public interest are the inclusion of a disability exception whereby print-disabled members of the community may freely translate literary works into accessible formats, 7 and allowing for protected works to be utilised for educational purposes. 8In both of these examples, the exceptions from the individual's ownership right is justified because of a wider social interest that is of greater importance for the community's development.In the first example, marginalised sectors of society are better able to realise their human rights pertaining to political participation, a cultural life, access to education and so on.In the second example, educators are better able to express and transfer their knowledge by way of providing students with comprehensive illustrations and materials.In both instances, this is beneficial for the public in question because a better quality of education and a more integrated disabled community means a more socially, politically and economically active citizenry.
However, these limitations and exceptions are themselves the subject of much academic debate.While exceptions and limitations exist in international IP law, they are often underutilised by the Global South for reasons ranging from lack of national infrastructure to implement them domestically to legal uncertainty as to their scope and content. 9There have long been innumerable calls amongst academics and developing nations alike for greater flexibility to be afforded by the international IP community in relation to the exercise of limitations and exceptions. 10Perhaps the most novel offering in addressing these deep-rooted concerns is that put forth by Okediji, who argues that a 'one-size-fits-all' view of IP limitations and exceptions is not appropriate in the context of developing nations which require a more responsive approach to societal needs.Instead, Okediji suggests that limitations and exceptions should be reframed according to the economic and developmental need of each Member State.Okediji therefore proposes the creation of 'liberty-enhancing' limitations and exceptions that promote the public interest and which are mandatory on an international level yet still flexible in their domestic implementation, leaving some room for cultural autonomy and meeting the requirements of the so-called 'three-step test' under the TRIPS Agreement. 13

Reimagining copyright exclusivity in the public interest
While Okediji offers an attractive solution to the concerns raised above, this article contributes to the new and exciting dialogue underway by suggesting an altogether more radical and fundamental alternative: instead of focussing on achieving greater flexibility and national responsiveness as it relates to copyright limitations and exceptions, a reassessment of the way in which copyright exclusivity is itself justified -particularly in relation to the Global South -is necessary.and Weatherall (n 4) 1; Kouletakis (n 9) This article proposes that the current international copyright system is inadequate in so far as it fails to centralise the public interest, not in relation to deviations from copyright exclusivity, but in relation to the rationale for affording copyright exclusivity in the first place.Copyright exclusivity should not compete with the public interest, but find its legitimacy within the public interest.This is particularly important in so far as it applies to the Global South where indigenous justifications for exclusivity of intangible property were and are inseparable from the communal interest.It is also important to note that this concept of the communal interest is not necessarily connected to capitalistic issues of economics or commercial exploitation.
While it must be stressed that there is no homogenous 'traditional Global South society' which exercises a single system of law, let alone a single 'indigenous community' which does the same, there are strong similarities between the different ethnic tribes in so far as their treatment of intangible property is concerned.Conventional copyright discourse tends to focus on the Western, capitalist notion of IP exclusivity as expressed above being diametrically opposed to the indigenous Global South's comprehension underlying those concepts, usually with reference to the current international IP regime failing to adequately protect or recognise the collective rights aspect of ownership to intangible property practiced within these traditional communities.Such an opposition between tradition and modernity became a key assumption of post-World War II modernisation theory whereby social and cultural evolution could be best understood in terms of progress that would entail the replacement of terms applicable to indigenous societies such as 'community', 'patron-client relationship', 'routine', and 'solidarity', with their modern and assumed polar opposite counterparts of 'individual', 'bureaucratic relationships', 'innovation' and 'competition'.As Dutfield highlights, since evidence of progress essentially entailed the latter terms applying rather than the former ones, there was little accommodation for hybridity including its positive aspects for indigenous and Western societies.These basic assumptions have proved to be highly resilient. 14lthough much has rightly been written about the inability of the current IP regime to effectively protect or recognise collective rights, this important dialogue has perhaps resulted in the overshadowing of a substantial similarity between these two supposedly mutually exclusive systems, namely the recognition afforded to both collective and individual exclusivity in relation to intangible property within these indigenous communities.In fact, literature across many indigenous societies in the Global South spanning many decades has found that various levels of ownership -ranging from individual rights to family rights through to community or village rights and even national rights -exist within such communities.The rights of the individual as well as the collective are recognized.'18By framing the non-commercial (from the Western perspective) public or communal interest as that which is primarily expressed and protected through exceptions or limitations to the general rule of exclusivity, the international community risks alienating the Global South whose own historical and cultural frame of reference is not adequately reflected in so far as it concerns the purpose for which proprietary exclusivity is granted in the first instance. 19hile the current IP system was created in the developed world steadily over many centuries, this same regime was largely thrust upon the Global South as a byproduct of colonialism. 20The current IP framework as implemented in the Global South was not the holistic answer to commercial problems as it was in the West, but the answer to a question nobody had ever asked, whether they liked it or not.Global power relationships evident at the negotiating table on the international arena reflect longstanding global power hierarchies, particularly in relation to the cultural gatekeeping of the south by the West. 21For example, Gana views the TRIPS Agreement as a form of passive coercion which requires the Global South to abide by the particular forms of protection for intellectual goods as a condition to membership in the new multilateral trading system despite this sometimes being to their cultural detriment.The author argues that the standards in the TRIPS Agreement are at times both incompatible with cultural institutions within these societies and invalid under local law and custom, thus raising a significant point of conflict between developing country governments and traditional societies which are constituents of these countries. 22As Drahos eloquently puts it, 'The claim that the TRIPS negotiations were a model of transparency is difficult to defend.In truth, it was the transparency of a one-way mirror'. 23An appreciation for these hierarchies of culture in the development of global intellectual property standards is important for it is what enabled Western socio-political beliefs expressed through individualistic, pro-capitalist frames of reference regarding the justifications for IP exclusivity to take preference over those of the Global South in the formulation of what are today considered universal IP norms and values.By reassessing the nature of copyright exclusivity rather than delegating such conversations to limitations and exceptions, the Global South is no longer seen as mere passive receptors of Western norms and values, but as participants with autonomous agency having inherent value reflected within a truly global IP framework.
It is important that such a paradigm shift takes place within the international community if it is to maximise global innovation, creativity and socio-economic developments.This is because it will need a stronger and more wide-ranging consensus on the importance of IP to every country in the world, regardless of economic or political positioning, if it is to make faster progress on commonly shared global challenges and aspirations such as economic growth, rights realisations and technological developments.All countries must see value in a shared framework that purports to reflect shared ideologies in order to 'buy-in' to said structures. 24The weaponisation of international minimum standards and frameworks as tools for 'civilising' the Global South means that the realisation of these universally important goals will remain out of reach unless a novel approach to obligations and accountability is adopted. 25t must be stressed that this article is not purporting to concern itself with the complex and controversial question of whether IP rights are a suitable vehicle for protecting traditional knowledge -that is not the ambit of this article.What is being suggested is that the current IP system might instead learn from the principle of common interest which underscores indigenous communities' understanding of exclusivity in intangible property, and in this way better reflect the norms and values of the Global South.
Admittedly, this is an ambitious task.The Global South is generally and frankly defined by way of its supposed 'delayed development' and being in a state of perpetual 'catch up' with the West.However, an incorporation of the indigenous concept of communal interest by way of a centralisation of the public interest in terms of justifying exclusivity would change this dialogue by recognising the Global South's unique and equal socio-political and cultural contribution toward the language of minimum standards over which they are themselves governed.By renegading the public interest to the realm of limitations and exceptions, the international IP framework 'others' what is perhaps one of the central features which has helped shape half of the world's nations; hardly what one would expect of a global movement.

III. Pathways to centering the public interest in copyright exclusivity
There are various ways in which the literature has, to date, sought to address this inequality in the global IP framework.While some of these arguments are diametrically opposed to the position of this article, others may be read as supplementing the recommendations within.What follows is a consideration of each argument in turn, as well as a discussion of their strengths and weaknesses as they relate to the requirements set out in this article.This will include the final proposal, namely that the TRIPS Agreement be removed from the ambit of the WTO and placed in a different body, such as the United Nation Educational, Scientific and Cultural Organization ('UNESCO').

Creating a constitutional clause
Geiger argues that IP is not merely property but part of a broader social contract between the haves and have nots which must aim to achieve more than mere economic benefit; it must promote cultural and scientific progress in general. 26The author posits that IP has lost this fundamental justification and recommends 'a satisfying and balanced clause for IP at constitutional level, capable of demonstrating by its "mere" wording that intellectual property is intrinsically linked to the interests of society' as a means of reinstating it.For example, Geiger suggests protection of IP under the freedom of arts and sciences or under the right to freedom of expression and information.
Geiger's position is a highly attractive one, for it recognises the importance of the public interest not as a countervalue to IP exclusivity, but as a central justification for allowing that exclusivity in the first instance.
This article accepts and supports the broad substance of Geiger's argument, namely that a conceptual shift is necessary where the public interest is repositioned as a justification for IP.It also accepts the choice of framing said argument in the language of international human rights law.However, there are some important distinctions between the arguments made in this article compared to those of Geiger.
Fundamentally, this article has posited that there must be a radical shift of paradigm, moving 'the public interest' from the edges (i.e.limitations and exceptions) to the centre (i.e.exclusive rights) of the global IP framework.For Geiger, this shift of paradigm is not necessitated in the execution of his proposed constitutional clauses which are, in some respects, more radical than the position taken within this article.For example, Geiger suggests amending Art.11 of the Charter of Fundamental Rights of the European Union to include protection of IP under Freedom of Expression and Information.The author does this in such a way that it would be the freedom of use that is considered the centre with exclusivity existing on the edges as the exception from the norm which must be justified.In this way, Geiger seeks not just to shift the paradigm of understanding through which the global IP framework interprets 'the public interest', but to flip the global IP framework in its entirety.It is not necessary -as per the premise of this article -to consider such an extreme proposal on its own merits when a less extreme alternative exists.
Unlike the works of Geiger, the interpretation of IP exclusivity within this article is not premised upon constitutional and quasi-constitutional patterns accounting for the historical public interest foundations of IP.Instead, it is premised upon the conceptualisations of indigenous communities within the Global South relating to exclusivity over intangible property for the communal benefit.This distinction is not insignificant.The arguments put forth by Geiger presuppose a shared historical sense or understanding of 'the public interest' as it related to IP.Indeed, the author uses the language of '(re)introducing' the public interest to modern-world conversations about IP; a remembrance of our shared historical roots.Geiger seeks to justify this conceptual shift as a means of 'helping the general public to accept and respect IP rights more willingly' and thus aiding in the legitimacy of IP during modern times 'of piracy and disillusion'.
Conversely, this article argues that a paradigm shift in the international community at a supranational level is needed in order to better reflect the norms and values of the Global South, and is therefore a matter of both social and historical justice -a cultural necessity.This article rejects the notion that the public interest, as understood by indigenous communities within the Global South, has ever been accepted by -much less incorporated withinthe international consciousness relating to IP exclusivity.This article rejects the position that there has ever been a shared historical sense or understanding of 'the public interest' as it related to IP, which necessarily renders it impossible to '(re)introduce' an ideal that never existed in the first place.As has been argued within this article, the historical realities of how the global IP framework initially permeated the Global South through colonial implantation and subjugation evidences the fact that 'the public interest' -as historically founded within classic notions of IP -has always been conceptualised from the point of view of the westernised, Global North to the exclusion of 'others'.The cultural hegemony embedded within the current language of 'public interest' and 'exclusivity' has always been that of the dominant elites; on a global scale, this has systemically excluded the indigenous South who have historically either been ignored, ormore recently -relegated to conversations pertaining to traditional knowledge as a subset of core IP considerations.

Interpreting the TRIPS Agreement through a pro-development lens
Yu provides an assortment of suggestions for developing countries on how to make the best of an international IP system that 'has provided many reasons why less developed countries are dissatisfied'. 27These include that developing countries take advantage of the 'many important public interest safeguards' within the TRIPS Agreement, such as Arts.7 and 8, and that the TRIPS Agreement be interpreted through a 'pro-development lens', namely interpreting these ambiguities to the country's local advantage. 28t has been argued that the TRIPS Agreement's requirement for strong IPR protection is 'increasingly out of phase with the shifting geopolitical dynamics of multilateralism in international relations' whereby 'human rights [have] become a progressively more influential factor in shaping trade and development policy'. 29However, Beiter has convincingly countered that international human rights law can in fact be used as a tool for interpreting the provisions of the TRIPS Agreement from a 'prodevelopment' point of view to the benefit of the Global South.The author argues that doing so 'supports substantial policy space for WTO members in the design of national IP law [. ..] so as to take account of national development and access needs'. 30n principle, this approach is a highly attractive one which supplements the position taken within this article.
While the paradigm shift argued for in this article is radical, it is also moderate in tolerating 'hybridity' or condoning the existence of a plurality of models alongside each other in accordance with each country's level of development.International human rights law provides an excellent, shared means by which to assess and realise this hybridity.However, in practice the ability of the Global South to interpret and apply the TRIPS Agreement from a 'pro-developmental' point of view is limited by many factors, including the lack of buy-in from the WTO and the threat of trade sanctions from the Global North.
There are many authors who have long highlighted the shortfalls of Arts.7 and 8, questioning or rejecting the practical usefulness of these supposed 'safeguards' within the current international IP framework, e.g.pointing out how they have featured sparingly in the reasoning of the WTO Dispute Settlement Body (DSB) despite being reinforced in instruments like the Doha Declaration on TRIPS and Public Health.Being well-documented, it is not necessary within the scope of this article to consider each of these in turn. 31While the objectives of raising standards of living and sustainable development are included in the Preamble to the Agreement establishing the WTO, human rights and labour rights do not feature explicitly in the WTO mandate.In fact, the WTO has repeatedly been criticised by academics, civil society and trade unions for ignoring the direct consequences of trade liberalisation on labour standards and human rights.It has been hailed as giving rise to the international 'race to the bottom' in the area of labour standards and human rights, whereby countries in the Global South relax labour standards and related rights in order to attract foreign investment from the Global North.
A key power element of the WTO is that it can authorise the application of trade sanctions for breaches of its agreements.The coercive approach of trade threats with relation to IP enforcement and protection can perhaps best be illustrated by way of example relating to the South African Copyright Amendment Bill.The most contentious aspect of this Bill has been that it would introduce a generalised system of fair use into South Africa's IP framework, replacing the previously -and more circumspect -system of fair dealing.Presidential assent of the South African Copyright Amendment Bill has been delayed in light of the International Intellectual Property Alliance -an organisation representing large US entertainment companies -asking the US Trade Representative to sanction South Africa should they adopt this Bill.This threat of unilateral trade sanctions was premised on the Bill having a 'lack of IP protection and enforcement' as its proposed system of fair use is considered 'too broad' by the US, despite the US itself utilising a system of fair use in its IP framework (as has been the case for many decades). 32hile the above example does not relate to the WTO authorising trade sanctions per se, it is important to note that the WTO DSB has long concluded that even though such unilateral threats of trade sanctions made by the US 'constitute a prima facie violation of [the TRIPS Agreement]', they are 'not inconsistent with US obligations under the WTO' and are therefore acceptable. 33t is true that this acceptance by the WTO DSB was 'based in full or in part' on the US administration undertaking that it would 'base any [trade sanctioning] determination' of a WTO violation on 'panel or Appellate Body findings adopted by the DSB' and only sanction countries with 'authority from the DSB to retaliate'.However, the reasoning of the DSB is rather challenging to follow for such an undertaking still enables the US to unilaterally sanction on the basis of its own interpretation of Panel or Appellate Body findings, and places the onus on the sanctioned country to retaliate with a DSB action after the fact.It is also difficult to understand how a prima facie violation on the TRIPS Agreement may be condoned on the basis of what is essentially a 'promise to behave' while doing so.That said promise has arguably been broken multiple times since the original judgement -such as in the US's sanctioning of Ukraine for matters including lack of IP enforcement without engaging WTO dispute resolution, unilaterally raising tariffs and other trade barriers in response to matters not brought before the WTO with regard to China, and potentially in the above-mentioned example of South Africa adds to this obscurity. 34he ability to implement trade sanctions which are either expressly or implicitly condoned by the WTO make the practicalities surrounding the 'pro-development' lens argument strenuous.Therefore, while such suggestions are indeed useful within a flawed system, their usefulness is limited and does not address the fundamental concern, namely how to go about fixing the system itself.The emphasis in these suggestions lies with the Global South to 'make the best of a bad situation' rather than calling on the Global North to be the actionable party in realising a more reflective international IP framework.

Removal of the TRIPS Agreement
Story has argued that the international copyright framework ought to be 'repealed and a new framework be established on radically different grounds' in light of its 'negative effects on countries of the South and its citizens'. 35The author premises this extreme position upon two primary claims: first, that copyright itself 'represents a coercive cultural and legal incursion onto the terrain of countries of the South' whom, he claims, did not recognise such 'social constructs' prior to Western implantation through colonisation; and second, that the power inequality between corporate copyright owners in 'rich countries' and users in 'poorer countries' (to use the author's choice of terminology) evidences that copyright is inherently incapable of being balanced or balanceable in the international arena.
It is respectfully submitted that both these claims are incorrect.As detailed above, traditional communities within the Global South did and still do recognise individual proprietary rights over intellectual property -that this is underreported and subsequently often overlooked by scholars in the West does not make it any less so.It is submitted that copyright exclusivity is neither foreign to the Global South, nor is it inherently incapable of being balanced -indeed, such a nihilistic argument misses the very heart of this article, namely that such a balance is possible and requires the centralisation of the public interest in a manner better representative of the Global South.

Removal of the TRIPS Agreement from the WTO
According to Khor, WTO members should 'seriously reconsider whether the TRIPS Agreement belongs in the WTO'. 36Khor is, perhaps, the most outspoken critic of the WTO and its administration of the TRIPS Agreement, 37 though which body would be better placed to administer the TRIPS Agreement is unclear.While the interplay between UNESCO and the WTO, or cultural heritage and IP rights, have been examined in literature, 38 the potential for the TRIPS Agreement to be administered by UNESCO has not.It is true that there may be political difficulties with adopting this position, 39 but it is at the very least an option worthy of academic exploration.
Many UN agencies subscribe to progressive development theories that are informed by human rights considerations.This is useful in terms of the arguments put forth by Yu and Beiter whereby the interpretation of the TRIPS Agreement would be best undertaken through a pro-development lens informed by international human rights law.
UNESCO is not a free actor on the world stage and is bound, as are the other UN Specialized Agencies, by their Constitutions. 40The Constitution of UNESCO, signed on 16 November 1945, came into force on 4 November 1946 after ratification by 20 countries. 41According to the Constitution, the primary purpose of UNESCO is: '[T]o contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed [. ..] by the Charter of the United Nations.' 42 UNESCO's constitution identifies certain means of realising this purpose, including recommending 'such international agreements as may be necessary to promote the free flow of ideas by word and image'.UNESCO's constitution does recognise and endorse the preservation of 'the independence, integrity and fruitful diversity of the cultures and education systems of the States Members of the Organization'.Virtually all members of the WTO are also UNESCO members.
Culture has always been a cornerstone of UNESCO, the pre-existing relationship between culture and trade being recognised through various trade regimes.The protection of culture and related human rights largely falls under the 'jurisdiction' of UNESCO.There is a large degree of overlap between types of works protected under the TRIPS Agreement and those already protected under UNESCO.The TRIPS Agreement regulates in Art.XIV the trade in and protection of literary works, films, broadcasting programs, sound recordings or music, performances.These goods fall under the scope of cultural goods according to UNESCO's Framework for Cultural Statistics (launched in 2009) which defines cultural goods as conveying ideas and ways of life and included books, magazines, multimedia products, software, recordings, films, videos, audio-visual programs, crafts and fashion.The link between cultural goods and commercial value is also well-established, for example copyright in traditional performing arts, and there therefore exists some degree of overlap between the types of works protected by UNESCO and the WTO at present. 43n terms of enforcement mechanisms, UNESCO has been criticised as being 'devoid of real and effective authority' or 'soft' and 'loose' due to its lack of 'teeth'. 44For example, UNESCO offers to its Member States a mediation and conciliation service through its Intergovernmental Committee for Promoting the Return of Cultural Property (ICPRCP).In this case, the main focus is the return of looted cultural property to its country of origin or its restitution in case of illicit appropriation.However, there is no reason why this mechanism cannot be extended to cover the complete ambit of disputes arising from the TRIPS Agreement.Mediation and arbitration procedures -as offered by UNESCO -differ greatly, though share some common threads and benefits which lend themselves to the hypothesis of this article.Firstly, they allow for a greater degree of flexibility and creativity in their approach to dispute resolution.This increased flexibility is particularly desirable when it comes to the application of rules to the Global South.Secondly, they are based to some extent on consensus between the parties (with the absence of trade sanctions) and involve an impartial figurehead in the form of a mediator/arbitrator/ expert.Thirdly, they provide a much greater opportunity for preserving long-term relationships between member states and ensuring that each party feels equally 'heard' on the world stage.Finally, they can potentially offer opportunities for speedier and less costly resolutions. 45t is also important to note that UNESCO has overlapped with the ambit of various other IP instruments.For example, the Universal Copyright Convention was developed by UNESCO as an alternative to the Berne Convention for those states that disagreed with aspects of the Berne Convention but still wished to participate in some form of multilateral copyright protection, which included the Global South and countries like the United States. 46

IV. Conclusion
International IP frameworks play an important role in the setting, standardising and securing of basic IP norms and standards across much of the world.This uniformity is necessary in order to achieve the wide-reaching, important and fundamental goals upon which the system of IP is premised.However, as has been argued in this article, the current frameworks have not been able to adequately reflect and incorporate the centrality of the public interest as it relates to copyright exclusivity which is a hallmark of many indigenous communities located within the historically and currently socio-politically oppressed Global South.By placing the broader, non-commercial communal interest at the heart of discussions around IP exclusivity as is done within indigenous societies in the Global South, a conceptual shift is able to take place within the global consciousness.This shift enables the international IP community to recognise that the communal interest need not simply be seen as a means of justifying limitations to and exceptions from the accepted norm of exclusivity, but in fact may be utilised so as to justify the creation of a more inclusive and globally representative framework within which to situate the norm.One possi-ble way to address this is by moving the TRIPS Agreement from the ambit of the WTO to UNESCO, but this is of course only one suggestion -it is hoped this article will, by highlighting said issue, encourage other stakeholders to come forward with further suggestions.

A C K N O W L E D G E M E N T S
I would like to thank my late mother, Lulu Samantha Yolanda Kouletakis, who proof-read this article for me while bravely battling stage 4 incurable lung cancer.I would be nothing today were it not for her unwavering love and support.
; Miranda Forsyth, 'Making the Case for a Pluralistic Approach to Intellectual Property Regulation in Developing Countries' (2016) 6 Queen Mary Journal of Intellectual Property 3; J Janewa OseiTutu, 'Human Development as a Core Objective of Global Intellectual Property' (2016) 105 Kentucky Law Journal 1; Juan He, 'Developing Countries' Pursuit of an Intellectual Property Law Balance under the WTO TRIPS Agreement' (2011) 10 Chinese Journal of International Law 827; Kanchana Kariyawasam and Scott Guy, 'Intellectual Property Protection of Indigenous Knowledge: Implementing Initiatives at National and Regional Levels' (2003) 12 Deakin Law Review 101; Enyinna S Nwauche, 'An Evaluation of the African Regional Intellectual Property Right Systems' (2003) 6 Journal World Intellectual Property 101; Laurence R Helfer, 'Human Rights and Intellectual Property: Conflict or Coexistence?' (2003) 5 Minnesota Intellectual Property Review 47. 11 Okediji (n 1); Ruth L Okediji, 'Chapter 14: Reframing international copyright limitations and exceptions as development policy' in Okediji (n 4) 429; Ruth Okediji, '8th Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property: The Unfinished Business of Copyright Limitations and Exceptions' <http://infojustice.org/archives/41666> accessed 6 September 2020.12Okediji, 'Chapter 14: Reframing international copyright limitations and exceptions as development policy' (n 11) 483.13 Okediji (n 1).
Further instruments such as the Convention for the Safeguarding of Intangible Cultural Heritage 2003 and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 add weight to the argument that UNESCO has the ability to easily subsume the content currently administered by the WTO.The same may be argued in terms of other forms of IP such as patents, which could be considered an extension of UNESCO's science mandate.
Calibrating copyright for creators and consumers: Promoting distributive justice and Ubuntu' in Giblin and Weatherall (n 4) 253; Walter G Park, 'Averting a TRIPSxit from the Global Intellectual Property System' (2017) 24 4 George Mason Law Review 883; Eric M Solovy and Pavan S Krishnamurthy, 'TRIPS Agreement Flexibilities and Their Limitations: A Response to the UN Secretary-General's High Level Panel Report on Access to Medicines' (2017) 50 1 George Washington International Law Review 69; Rebecca Giblin and Kimberlee Weatherall, 'Chapter 1: If we redesigned copyright from scratch, what might it look like?' in Giblin 15These exclusionary 'rights' oftentimes appear superficially similar to those of the Western IP system, as per Ouma:'In the case of music, specific composers within[in- digenous and local communities]are often rewarded for their creativity by being recognised as custodians of the compositions.Certain forms of artwork and design often belong to certain members of [indigenous and local communities].Many types of [traditional knowledge] held by [indigenous and local communities] in Kenya, and in EastAfrica more generally, are thus kept within the custody of a selected few, to the exclusion of all others.' 16A substantive difference is that, even though it is possible for the individual to hold said rights to exclusivity in these traditional communities, the individual is enabled to do so because of a commitment to the common interest. 17For example, traditional African societies are motivated in part to observe all sort of norms by their common interests, including justifying the recognition afforded to rights of exclusivity as it relates to intangible property.As explained by Arowolo: 'In intangible property, the right to use and not the right to own or both is recognised [. ..]. Exclusive rights are provided by the identification of certain groups or individuals as having the rights to manufacture or produce certain commodities [. ..].Each member of the community has individual rights which are usually accompanied by collective responsibilities.These responsibilities could be fiduciary in nature or just a duty of care to the community [. ..]. Individualism exists within communalism without having to accept the western concept of individualism.