Guarding the Pacific’s cultural heritage
Tione Chinula
5/09/07
 Countries with traditional communities of people have found that conventional forms of intellectual property like trademark, copyright and patents have not been designed to capture the special characteristics of their traditional knowledge systems, says Gail Olsson, Trade Policy Consultant based at the Pacific Islands Forum Secretariat (PIFS).
Western notions of individual property ownership emphasise conventional forms of intellectual property law. This conflicts with the property ownership norms of traditional cultures, which are often communal.
In 1999, Pacific leaders instructed PIFS to investigate the issue. At the same time, the Council of Pacific Arts asked the Secretariat of the Pacific Community (SPC), which also acts as the council’s secretariat, to develop sui generis or alternative frameworks to protect the region’s traditional knowledge. As a result SPC, PIFS and UNESCO collaborated to shape the Regional Model Law for the Protection of Traditional Knowledge and Expressions of Culture finalised in 2002. The guidelines for implementing the model law were then developed by SPC with support from New Zealand.
The model law establishes a new range of rights for traditional owners over their traditional knowledge and expressions of culture.
‘Countries and regions like ours are finding the need to develop their own legislation based on the model law to stop the pillaging of their objects of art, songs and associated knowledge, which has been a problem for some time.’ Ms Olsson says.
In the Pacific, the model law provides a basis for countries to enact legislation to prevent the exploitation and inappropriate commercialisation of their traditional knowledge and expressions of culture.
Adopting national legislation is the first step towards establishing a regional system of protection, Ms Olsson says. However, it is too early to set up a regional system of protection, she says. Currently, the focus is on assisting countries to develop national systems of protection based on the Model law with a view to using that as a basis for a regional system of protection and enforcement.
‘We can’t adequately address infringements or breaches of traditional knowledge unless there is a system to address them, first within the country and eventually across the region, since infringement often takes place between countries,’ Ms Olson explains. ‘While a regional system of protection would go some way to addressing infringements that take place between countries that are a part of that system, it can’t address infringements beyond that. Hence, the need for an international treaty to address the problem on a global level.’
Developing internationally binding rules on traditional knowledge is the responsibility of the Geneva-based World Intellectual Property Organization (WIPO), the UN special agency for intellectual property. Discussions on this subject began almost a decade ago, but have been slowed by the divergent views of developed and developing countries.
In spite of the slow progress towards an international treaty, a handful of countries in the Pacific have already taken active steps to adopt legislation based on the model law. They are Cook Islands, Fiji, Kiribati, Palau, PNG, Vanuatu, Samoa and Tonga.
The absence of an international framework to protect traditional knowledge makes it critical for countries to share their experiences and learn from one another, says Ms Olsson. ‘International norms on traditional knowledge are still evolving and aren’t able to provide definitive guidance for national and regional systems of protection at present.’
However, as Pacific countries begin developing their laws it is important that their experiences are reflected in the WIPO forum and contribute to developments taking place at an international level. ‘This will ensure that national and regional systems evolve in tandem with an international treaty,’ Ms Olsson says.
Festival aims to protect artists’ rights
September 2007
The protection of traditional knowledge and expressions of culture was high on the agenda at a recent meeting of the Executive Board for the Council of Pacific Arts. The board met at the Secretariat of the Pacific Community (SPC) headquarters in Noumea in August to review preparations for the next Festival of Pacific Arts to be held in American Samoa in July 2008.
Tialuga Sunia Seloti, from the 10th Festival of Pacific Arts Organising Committee in American Samoa, says the committee is paying special attention to the protection of artists’ intellectual property rights at the festival.
‘Our Festival Task Force Chairperson, who is also the Lieutenant Governor of American Samoa and a certified legal counsellor under the US legal system, is considering this issue carefully. He is working closely with our government attorneys. The model law provided by SPC and the Pacific Islands Forum Secretariat is also being reviewed,’ Ms Sunia Seloti says.
Background info:
Tione Chinula is SPC’s Human Development Programme Advocacy and Communications Officer. She can be contacted on 00687 262 000 ext 157 or via email at tionec@spc.int For more information on SPC’s Human Development Programme visit its website at www.spc.int/hdp
The Council of Pacific Arts is a special body that provides direction and guidance on regional cultural issues. The Council covers 27 Pacific Island countries and territories. PIFS, on the other hand, has 16 member states.
Traditional Knowledge refers to knowledge belonging to a group of people that has been inspired for traditional purposes and is passed from generation to generation.
Expressions of Culture refers to any way in which traditional knowledge may appear, whether in tangible or intangible form. It includes names, songs, oral narratives, art, music, dance and architectural forms.
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