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Membership and participation in the multilateral trade system is now premised on adoption of the TRIPs Agreement which has in effect internationalised intellectual property (IP) law. This has highlighted the problematic nature of IP as a legal transplant that, it is argued, lies in its domestication of norms and values that are fundamentally irreconcilable or irrelevant in their transposed context. The preferential shift towards knowledge-based economic systematisation in which IP rights play a crucial role has propelled information and communication technologies (ICTs) as the vanguard for economic growth. The gap in terms of economic development between developed and less developed countries is ascribed to how fully they have exploited and utilised ICT. The discourse is replete with rhetoric of a ‘digital divide’ or ‘knowledge gap’ manifesting a cyber-age reincarnate of fossilised stereotypes embedded in the construction of ‘otherness’. The rapidity with which technology and the information superhighway operate has contributed to the predominance of Occidental legal and commercial imperatives implicit in the conception of IP. The far-reaching effects of IP law have entrenched the misappropriation of indigenous knowledge and culture, and pose a danger to the wellbeing of the vast majority of people in developing countries. Developing countries and indigenous communities have sometimes resorted to human rights to avert these threats. The chauvinism typified in the formulation of IP treaties and some judicial decisions involving claims to customary rights of ownership, lays claim to an unqualified morality and indisputable sagacity embodied in the norms and values intrinsic to the Western and (increasingly) multilateral model of IP, and the attendant universalism with which they are advocated. It is postulated that there can be no valid claim to universalism. The multilateral international IP regime is a negotiated compromise between original stakeholders with a background that recognises the peculiarities of the law in their respective countries. Furthermore, the violence and nature of law by which distinction and definition is constituted by purported difference from the Other militates against ecumenical claims upon which the transplantation of IP law is propagated. Finally, it is argued that consideration of the problematic nature of IP as a legal transplant must take into account the basic makeup of IP to avoid a cosmetic consciousness on the subject.
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