Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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by Terri Janke[1]
In February 1999, the Secretariat of the South Pacific in association with the United Nations Educational Scientific and Cultural Organisation (UNESCO) convened a Symposium on the Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands. The Symposium was organised at the request of the Council of Pacific Arts in order to provide a regional symposium for the Pacific Island countries and territories. The aim was to discuss the need for legal protection of expressions of Indigenous cultures and cultural expression, to comment on the existing international instruments and laws and to produce a joint statement to the relevant international bodies. Approximately 60 delegates attended, including official participants from Australia, Samoa, Tonga, New Zealand, Palau and the Federated States of Micronesia. This commentary provides an overview of the main issues presented at the Symposium.
There are currently two international instruments which provide a basis for the protection of traditional culture and 'folklore':
The issue of protecting traditional knowledge and Indigenous peoples’ cultural expression is also currently being re-examined by UNESCO and the World Intellectual Property Organisation (WIPO), the international body which administers the major intellectual property conventions including the Berne Convention, the convention upon which Australia’s copyright law is based.
The UNESCO Recommendation on the Safeguarding of Traditional Culture 1989[2] makes recommendations to signatory governments concerning the definition, identification, conservation, preservation, dissemination and protection of folklore.[3] Among other things, it recommends that all UNESCO Member States should apply the Recommendation provisions by taking whatever legislative measures or other steps may be required, so far as is constitutionally possible, to give effect to the principles and measures outlined in the Recommendation. These measures include the development of a national inventory of institutions concerned with folklore with a view to their inclusion in regional and global registers of folklore institutions[4] and the establishment of national archives where collected folklore can be properly stored and made available.[5]
The UNESCO Recommendation calls on each Member state to bring the Recommendation to the attention of the authorities, departments, bodies and institutions responsible for or concerned with matters relating to the safeguarding of folklore, and to encourage contacts between these bodies and the appropriate international organisations which deal with the safeguarding of folklore. It further requires each Member State to submit UNESCO reports on the action they have taken to give effect to the Recommendation.[6]
Two days before the Symposium, there was also a Pacific Regional Seminar on the Application of the UNESCO Recommendation. A report during this seminar revealed that not a single Pacific Member State had ever made a report to UNESCO. The Seminar Report found that awareness of the UNESCO Recommendation in the Pacific was minimal and that protection efforts are often constrained by a lack of financial and technical support. Despite these factors, Pacific Island nations reported that a range of important initiatives undertaken by their countries, including the establishment of archives and the development of national policies for cultural protection.. [7]
The UNESCO Recommendation defines folklore as:
... the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognised as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others: language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.'[8]
Many Pacific countries were dissatisfied with the use of the term '''folklore''' to define Indigenous cultural knowledge and property.[9] For Indigenous peoples in the Pacific, culture is a living and continually-evolving tradition which is socially-based and communally-owned. Its continued practice is vital to the identity and survival of particular communities. The Papua New Guinea delegation noted that:
For us in PNG, and it is perhaps true in many other Indigenous societies, our cultures are not '''folklore''' as understood in the normal usage of the English language, but are sacred norms which are intrinsically intertwined with our traditional cultural way of life where these norms set the legal, moral and cultural values in our traditional societies. For example, our traditional cultural values and beliefs regulate our way of life over matters such as marriage, ownership of property, access rights etc.. and are therefore not simply folklore.[10]
For this reason, Papua New Guinea, and many other countries, preferred the terms 'expressions of Indigenous culture'; 'traditional cultural material' and 'traditional knowledge'. In this paper, these terms will be used to refer to aspects of indigenous cultural heritage. 'Folklore' will be used only when referring to its usage in the UNESCO Recommendation and the Model Provisions.
The Model Provisions provide for intellectual property-type protection of folklore against certain unauthorised uses and against distortion. To cater for the specialised needs of folklore, protection under the Model Provisions goes beyond the conventional notions of copyright by protecting intangible expressions as well as fixed works.[11]
A report on these provisions was presented to the Symposium by UNESCO Representative, Salah Abada. In 1984,, the Group of Experts on the International Protection of Expressions of Folklore who reviewed a draft treaty which provided for an international system of folklore protection, based on the Model Provisions. After lengthy debate, it was resolved that whilst the participants generally recognised that international protection of expressions of folklore was necessary, the majoirty of participants considered that it was premature to establish an international treaty for two main reasons: Firstly, there was a lack of appropriate sources to identify the expressions of folklore to be protected. For instance, how could one country know which expressions of folklore other signatory countries wanted protected; Secondly, there was no workable mechanisms for settling the diverse issues found within several countries of a region. For example, to which country would a person go to get permission if he or she wanted to use an expression of folklore that was part of the national heritage of several countries.
Mr Abada noted that 'folklore', or 'traditional and popular culture' as he preferred to call it, needed protection at an international level because it was important to cultural identity; because it changed regularly and because the wide diffusion of traditional cultural forms means that there is a large risk of prejudicial distortion of traditional and popular culture by non-parties.[12] There was thus a need to develop specific laws which would protect traditional and popular culture. These would need to address such issues as:
A major issue of the Symposium was to define what is '''traditional knowledge''' and '''expressions of Indigenous cultures'''.
It was reported generally that Pacific Countries possess a wealth of traditional knowledge, cultural expressions and practices which have been created and passed on for generations. The Chairperson of the Kanak Cultural Agency, Mrs Marie-Claude Tjibaou noted that land and history are closely linked to indigenous cultural knowledge and cultural expressions.[14] Symposium participants unanimously recognised the fact that Pacific peoples are ''Indigenous peoples” and that their cultural expressions and traditional knowledge in this context is inseparable from land ownership. This point was further stressed by Kiribati's delegate Mr Tebania Tebakabo, who noted that Kiribatian people's cultural knowledge included the cultivation of babai, coconut trees and other medicine and food plants; dancing, and singing and swimming techniques. All of these forms of knowledge had been developed over time through interaction with the unique environment of Kiribati.[15]
The Symposium considered that traditional knowledge and expressions of cultures are 'the ways in which Indigenous cultures are expressed' and are also 'manifestations of worldviews of the Indigenous people of the Pacific. '[16] The following items were identified as important elements in such knowledge and expression:
For Pacific countries, traditional knowledge and expression of Indigenous cultures are a living and evolving tradition. Such knowledge and expressions are socially-based and communally-owned, because they have been developed for the benefit of the group as a whole. Often, there are restrictions placed on how knowledge and cultural expressions can be disseminated.
A delegate from the Cook Islands noted that because knowledge is for the benefit of the whole community, there is no sole owner of such knowledge. Although a chief may be ultimately responsible for such knowledge, the information is passed on through the family and the clan group. If tradition is not passed on, there will be a loss of tonga (culture). It was reported that in the Cook Islands, there were once traditional unwritten laws controlling dissemination of cultural information but that these had been lost and replaced by missionary laws, and/or disregarded as the desire for Western knowledge and rewards increased. Knowledge of traditional customs is heavily guarded. Some expressions of cultural knowledge cannot be sold. If one person uses knowledge for financial gain, then that knowledge loses its prestige.[17]
Similarly, the Palau delegation reported that:
Each person has a defined role within the whole society, including his/her village, lineage, clan, both men['s] and women['s] organisations or clubs, and age groups within the community. In the traditional system, built on group dynamics, the stress was on harmony and working together.'[18]
Palau further reported that individual people who are composers, healers or weavers do not readily share their knowledge with other people outside of their families. In this way, knowledge is kept guarded. A lineage or clan might be known to possess knowledge of a certain form of cultural expression which may only be passed down through that particular lineage.[19]
Mr Tebakabo of Kiribati noted that Indigenous cultural knowledge is maintained by custodians who:
... possess the traditional knowledge ... and ultimately determine who the next heir should be and hence legally control the dissemination, retrieval and expression of that traditional knowledge.[20]
A Report by Terri Janke from Australia noted that there are many different Indigenous Australian groups.[21] Despite regional differences, each particular group has ownership of rights over its particular inherited cultural heritage.[22] One common factor between all Indigenous groups is that there are generally customary laws governing rights to use and deal with Indigenous cultural and intellectual property. These laws are based on the premise of responsibility for cultural knowledge and the need to ensure that the culture is maintained and protected so that it is passed on to future generations. To this end, there is often an individual or group who is the custodian or caretaker of a particular item of heritage. This type of relationship was noted in the Federal Court case Bulun Bulun v R & T Textiles.[23] In this case, Mr Bulun Bulun was recognised at law to be the artist and copyright owner in paintings which embodied communally-owned designs of the Ganalbingu people. Mr Bulun Bulun’s use of ritual knowledge to produce the artworks was given to him in accordance with Ganalbingu customary law, and was predicated on the trust and confidence that those giving permission had in the artist. The Court found that the relationship between Mr Bulun Bulun and the Ganalbingu people gave rise to a fiduciary relationship between them. Under this relationship, Mr Bulun Bulun had a fiduciary obligation to the rest of the clan group to ensure that the artwork is reproduced in ways which preserve the integrity of the culture and the knowledge.
Similarly, consent to authorise others to use Indigenous cultural knowledge, if it is given at all, must be given by the group as a whole, through specific decision-making procedures which differ depending on the nature of the particular cultural item. Consent procedures may differ from group to group, and even where consent is given, it may be given with certain restrictions on usage and dissemination.
In Bulun Bulun v R & T Textiles, evidence given by Djardie Ashley, Indigenous artist and member of the Ganalbingu people who stands in the position of Waku or Djungayi[24] to Mr Bulun Bulun, discussed how the Ganalbingu laws deal with such consent procedures. Mr Ashley noted that in some circumstances, such as the reproduction of a painting in an art book, the artist may not need to consult with the group. However, in other circumstances, such as reproduction in merchandise, an artist such as Mr Bulun Bulun may be required to consult widely. Mr Ashley further noted that:
The question in each case depends on the use and the manner or mode of production. But in the case of a use which is one that requires direct consultation, rather than one for which approval has already been given for a class of uses, all of the traditional Aboriginal owners must agree. There must be total consensus. Bulun Bulun could not act alone to permit the reproduction of At the Waterhole in the manner as it was done.[25]
Traditional knowledge and Indigenous cultural expression is vital for the survival of the cultural identity of Pacific nations and there is a real need to protect local cultures to ensure that there is something to pass on for the future.[26]
Mr Octave Tonya, President of the Council of Pacific Arts noted that globalisation, tourism and developing technologies threaten to assimilate Indigenous Pacific cultures to the dominant world cultures. He stated that
Without roots or foundation we would be men and women without a past and soul.
He noted that paintings, songs, and stories are diverse expressions of Indigenous traditions and that there was a need for Pacific Nations to preserve and protect their traditional knowledge and cultural expression against powerful outside influences through legislation.[27]
There is also an economic argument for protecting traditional knowledge and Indigenous peoples’ cultural expression. Many Pacific countries reported the commercial exploitation of their plants, cultural practices and knowledge by outside entities. For instance, the kava and noni plants have been exploited in world markets by international pharmaceutical and cosmetic companies.[28] The increased commercial value of Indigenous cultural material has also increased the demand from the outside world for Indigenous people's cultural knowledge. One important issue is that there is currently no protection for this cultural material and knowledge or for the rights of its Indigenous owners to safeguard its dissemination.
Increasing economic demands within the international economy for Indigenous cultural have led to large-scale appropriation of Pacific Indigenous cultures and traditional knowledge in the following areas:
Many countries reported the wide dissemination and use of arts and cultural expressions without the consent of Indigenous peoples. A range of examples were cited ranging from the use of traditional songs from the Solomon Islands remixed for popular music[29] to the appropriation of a Vanuatuan cliff-jumping ceremony traditionally performed by chiefs which has now been adapted for jumping of bridges and towers and now marketed to the world as bungy jumping.[30]
Another concern for many countries was the dispersal of Indigenous cultural property around the world. There was concern that objects had been removed from their native territories, often with the consent of Indigenous Pacific Peoples, at times in the past where Indigenous peoples had no control over the collection, trade and importation of such objects. Repatriation of cultural objects is becoming increasingly important for Pacific countries as they now establish their own museums and cultural centres for the recording, display and promotion of their cultures. However, there is still much repatriation work to be done. The Cook Islands delegation reported that there are more traditional cultural objects from the Cook Islands held in overseas museums than in the Cook Islands themselves. The Cook Islands National Museum is attempting to repatriate objects from museums abroad, but unfortunately, there are very few legal avenues available for the return of such cultural property. In most cases, repatriation of cultural objects is dependent on the goodwill of the relevant international museums.[31]
Many Pacific Countries reported that new technology such as the Internet, on-line services and multi-media products have increased the means by which non-traditional users of cultural material can use, view and copy such material. This is a concern because Indigenous people consider that traditional knowledge and Indigenous peoples' cultural expression is not adequately protected in the area of existing technology such as sound and audio-visual recordings, broadcasting, television and cinematography. The advent of new technology has further exacerbated this problem. For instance, Wallis and Futuna reported that a lot of their cultural information escapes via the Internet through 'underground' trading.[32]
Many countries reported the exploitation of their natural resources such as plants, animals and minerals. These resources have been developed, maintained and nurtured by Indigenous peoples in the Pacific over centuries, in accordance with their lifestyles and cultural practices. Mr Clark Peteru, a lawyer from Samoa, presented an interesting and well-informed paper on the appropriation of plant genetic resources in the Pacific.[33] He noted that Indigenous peoples in the Pacific have traditional knowledge of the use of plants for medicinal, agricultural, cosmetic and biocidal purposes. This knowledge and the plants themselves are now heavy sought after. Developing Countries hold a lot of unexploited resources and these countries usually lack the technological resources to develop and exploit the resources themselves. Hence, plant genetic resources are often exploited by foreigners for commercial gain.[34] Mr Peteru cited a number of examples including the kava and mamala plants.
Tonga reported on the exportation of the nonu or noni plant. This plant was traditionally used by Tongans for medicinal purposes, but is now being exported for pharmaceutical purposes. As Bloomfield notes:
To the exporters, the cultural value of this plant is not significant as long as it brings them financial gain. But to the Tongan, it is the commercialised exploitation of a plant which is inextricably bound to Tonga traditions and customs.[35]
Another issue of concern for Symposium participants was the patenting of life forms. Clark Peturu reported on the patenting of cell lines from members of the Hagahai tribe by a US company. A virus, isolated from blood taken from members of the tribe, was found to cause a form of cancer and paralysis, thereby having potential commercial use for medical research. The patent applications were revoked after the international outcry.[36]
Given the wide-scale appropriation of Pacific cultures, countries expressed the need for the urgent development of both legal and non-legal protection mechanisms.
Intellectual Property refers to the current system of laws which establishes rights in intangible property such as creative knowledge, inventions and ideas. This system protects works in the following areas:
Professor Pierre Yves-Gautier from the Universite Pantheon-Assas in Paris presented a paper exploring protection of Indigenous cultural and intellectual property through copyright and other intellectual property laws.[37] Professor Gautier noted that most countries have copyright legislation and copyright is an established international system of protection under such agreements as the Berne Convention and the WTO Agreement.[38] Given the broad extent of protection under this system, Professor Gautier was of the opinion that copyright may to some extent protect Indigenous cultural material.
Professor Gautier suggested that copyright protection for Indigenous cultural works should start when a work becomes known or published outside the local Indigenous community. This would provide protection for some works currently considered to be in the public domain. For example:
...even if a rock painting has been non-existent for a thousand years within a tribe and had only been discovered through the first photographs taken by an anthropologist, or in a film, it can be considered that it had not been communicated to the public previously, with the result that the...50 year period would only commence then. [39]
He noted a French case heard in 1976 in the Paris Appeal Court [40]which dealt with whether or not a Vanuatuan tribe enjoyed copyright protection for the Vanuatuan chiefs' jumping ritual which had been copied by foreigners and exploited as 'bungy jumping'. Whilst the court held that the ritual was a 'work' and therefore capable of copyright protection, the Court was of the opinion that the ritual had been given wide exposure and therefore disclosed or published to a large number of tourists who had visited Vanuatu.[41]
Professor Gautier noted that Berne Convention contains provisions for the protection of works of deceased artists and unknown authors. Gautier suggested that these might be useful in adapting copyright protection to some forms of Indigenous cultural works.[42]
The moral rights of integrity and attribution or origin, which exist in most countries, were noted as being useful for safeguarding the integrity of Indigenous cultural material. Under French copyright law, Gautier noted that moral rights exist in perpetuity, beyond the term of general copyright protection.
Professor Gautier also discussed the relevance of industrial property laws, such as designs and trademarks law, for protecting traditional knowledge and cultural expression. It was suggested that communities wishing to protect certain designs, sounds or words could register the item as a trademark. Gautier noted that:
The advantage of registering a mark is that protection is for an indefinite period and makes it possible to avoid the traps of the public domain: if marks are generally valid for a limited period...they can be renewed as many times as their owner wishes, so that ownership becomes virtually perpetual.'[43]
Another possible means of protecting Indigenous cultural and intellectual property noted by Gautier was the use of the doctrine of unfair competition or unjust enrichment. Under this doctrine, the courts may provide equitable relief where one trader has misappropriated the fruits of another trader’s skill, time and labour. According to Gautier:
The members of a tribe and/or their ancestors are the anonymous authors of designs; they have not ever given anyone permission to take photographs, [or] reproduce the effigies of the divinities or symbols of the clan. Why then should other people make money out of them without having to pay them any collective compensation?'[44]
Professor Peter Jaszi, from Washington College of Law in the US discussed the interesting issue of whether the notion of '''authorship''' under copyright law could be applied to the inter-generational development and collective ownership characteristics of Indigenous cultural and intellectual property. Professor Jaszi noted that the idea of authorship has shaped copyright in common law and civil law countries, the obvious example being in the field of new information technology. The development of computers and databases have challenged traditional notions of copyright law and brought about an extension of the definition of authorship. According to Professor Jaszi, the notion of '''authorship''' could be useful for Indigenous cultural producers. However, what is required is the political and economic will to change the laws.[45]
Several Pacific Countries reported on attempts to use copyright laws to protect traditional knowledge and cultural expression. It was reported that under the Samoan Copyright Act 1998, '''expressions of folklore'''[46] are protected from being:
... reproduced, communicated to the public by performance, broadcast or distributed by cable or other means when such expressions are made either for commercial purposes or outside their traditional customary contexts.[47]
There are fair dealing exceptions. For instance, there is no requirement to obtain authorisation if:
... the reproduction, performance or broadcast of the expression of folklore is related to its use by a person exclusively for his/her own personal purposes, for reporting current events, for teaching purposes or for scientific research.[48]
Under the Samoan legislation, the right to authorise the reproduction and communication of expressions of folklore to the public through performance or broadcasting will be vested in a competent authority to be determined by the Minister of Justice. According to Mose Fulu, there are difficulties in applying the legislation, due to the expense and time needed to put forward a claim. As yet, there have been no claims. Fulu speculates that one difficulty in the law may be:
... determining whether a particular song, dance, etc is an expression of folklore for the Act’s purposes but also whether it is being used in its customary and traditional context. It is contemplated that there will be differing views as to what constitutes the customary or traditional usage of [a] particular expression, and this may prove problematic.[49]
Vanuatu has a Draft Copyright Bill which includes protection for 'expressions of folklore'. As Ralph Regenvanu notes however, such expressions only seem to qualify as 'protected works' where they are part of 'collections of expressions of folklore that are original by reason of the selection or arrangement of their contents.'[50]
Palau is also considering introducing a national Copyright Act which includes protection for 'expression of culture'. There have been specific requests by Indigenous Paluans for the Bill to protect culture against use for commercial purposes, and against the reproduction, public performance or broadcast, or other adaptation or transformation outside its original cultural context.[51]
Professor Kamal Puri of the University of Queensland reported on the ability of Australian copyright law for the protection of the cultural expression of Indigenous Australians. He noted that there have been some recent cases which had expanded the application of copyright to Indigenous cultural works,[52] and that:
[al]though Aboriginal artists may continue to come across difficulties framing their claims under the Copyright Act, it can be anticipated that courts in future are likely to exhibit a much more sensitive and flexible approach toward the cultural barriers confronted by Australia’s Indigenous peoples.' [53]
It was observed by the participants that generally that current intellectual property laws were inadequate for protecting Indigenous cultural and intellectual property. This is because Western intellectual property law:
A range of legal measures other than intellectual property-type laws were discussed including the following:
French Polynesia reported that under the Land Use Code of French Polynesia,[54] there are laws to protect 'natural, historical and scientific sites and monuments and areas of outstanding natural beauty' and also 'historical, scientific and ethnographic material.'[55] The laws also regulate archaeological excavations, and include administrative and technical provisions governing the issuing of authorisations for archaeological excavations and the export of material collected.
Similarly, the Republic of the Marshall Islands (RMI) reported on its Historical Preservation Act (amended 1992) which created the RMI Preservation Office and Advisory Council for Historical Preservation as well as guidelines for financial management and legal enforcement of historic preservation. The legislation established rules and regulations for the protection of Marshallese cultural heritage, including the export and curation of artefacts and the disposal of human remains.[56]
Some countries have already incorporated provisions within their laws which address some Indigenous cultural and intellectual property issues. For instance, it was reported by Mr Lam Dang, Chief of the Division of Law, Department of Justice, from the Federated States of Micronesia, that on independence, the original Congress of Micronesia legislated to ensure that all customs and traditions were recognised as part of the national laws. The FSM congress also passed a legal code to protect Historical Sites and Antiquities.[57] The protection granted under this code includes protection of 'cultural attributes' meaning 'all aspects of local culture, tradition, arts, crafts, all social institutions, forms of expression and mode of social interaction.'[58]
Many countries reported the existence of customary laws dealing with the protection of traditional culture. Some countries noted that these laws have been weakened as a result of colonisation. The Solomon Islands delegation noted that traditionally
... there were strict community, tribal or family regulations with severe punishments or penalties set to safeguard them [ie cultural material] in the past from being copied or used by others. For example, traditional knowledge about medicinal plants, a stylised motif or design used in a carving, the best fishing and hunting grounds ... were often restricted to certain groups or individual who owned them in a community, tribe or family. If someone else was found to have access [to] or [to] practice them without first seeking and obtaining permission from the true owners of the knowledge...that person had to pay compensation, either of pigs or shell money strands.'
It was also reported that, a person might be punished with death for serious breaches of these laws.[59]
Under colonial administration, these traditional laws were not fully recognised and accepted, and were further eroded by the introduction of the colonisers' legal systems. Even after independence, it was the introduced legal systems which remained the common laws of the country.
Some countries also reported that the protection of Indigenous cultures was enshrined in their constitutions. For instance, the Federated States of Micronesia Constitution contains provisions for Micronesian customs and traditions to remain a continuing part of Micronesian law.[60] Section 1, Article V of the FSM Constitution provides that 'Nothing in this Constitution takes away a role or function of a traditional leader as recognised by custom and tradition.'
Section 2 states that:
The traditions of people of the Federated States of Micronesia may be protected by statute. If challenged as violative of Article IV [refers to Declaration of Rights in the Constitution] protection of Micronesian traditional shall be considered a compelling social purpose warranting such government action.'
According to Mr Dang, the FSM Courts have upheld a wide variety of customary law decisions involving crime, torts and property cases which invoke this article of the Constitution.
The Constitution of the Marshall Islands establishes a Traditional Rights Court to deal with disputes that involve tenets of customary law. The Constitution also calls upon the Parliament to uphold the customary law of the Marshall Islands in the exercise of its functions, and stipulates that no provisions in the Constitution are intended to detract from or invalidate any existing customary laws or traditional practices. [61]
The Constitution of Papua New Guinea allows for custom to be adopted, applied and enforced as part of the underlying law of PNG provided ‘that particular custom is not in conflict with state law, including constitutional laws, or is not repugnant to the general principles of humanity.’[62]
However, Kalinoe and Simet note that in order for such customs to be adopted, applied and enforced in the Courts, it is necessary to bring evidence of proof of title. Hence, if a tribe wants to protect or enforce its proprietary interest in traditional songs, dance or music, it will have to adduce evidence of customary ownership rights in such material. If the courts decide to accept this evidence, the Court then proceeds to accept it as law and to apply and enforce it.[63]
Vanuatu reported that 'traditional copyright' (that is, Indigenous customary laws governing use and dissemination of cultural material) still provides the strongest protection for Indigenous cultural expression and knowledge in Vanuatu.[64] However, this is under threat in light of the cash economy and demands for cultural products by commercial interests. Other countries reported that customary laws are still practised to some extent. Such laws are recognised in the courts most often in land ownership matters. However, as Nauru noted, there is a reluctance on the part of the courts to accept customary law when dealing with cultural heritage issues.[65]
Professor Gautier maintained that there may be scope for using trusts to administer and represent Indigenous peoples, and thereby address the collective nature of Indigenous cultural and intellectual property. A trust is the:
... transfer of ownership of property, intangible property in this case, by one or more owners, to a kind of administrator who will be responsible for enhancing its value, protecting it and distributing the income to the designated beneficiaries'[66].
It may also be possible for the trust structure to deal with the problems of authorising and collecting royalties. [67]
New Zealand reported on the scope of immigration laws for controlling the exploitation of Indigenous cultural material. One such avenue may be international agreements such as the Unidroit Convention on Stolen or Illegally Exported Cultural Objects 1995.[68]
FSM is already making use of immigration laws to protect culture. In response to concerns about the unauthorised dissemination of traditional knowledge via research, FSM has immigration laws which prohibit entry unless a research plan has been submitted to the Department of Justice.[69] If tourists conduct research without going through these procedures, they can be prevented from leaving the country under immigration laws.
New Zealand reported that the 1840 Treaty of Waitangi established a partnership between Maori and the New Zealand Government. In 1975, the Waitangi Tribunal was established to hear claims by Maori where Acts of Parliament were inconsistent with the claims of the treaty. Currently, there are 635 claims before the Tribunal. One such claim deals with the issue of Maori cultural rights to Maori cultural resources including plants, animals, genes and symbols. The claim argues that in signing the Trade Related Aspects of Intellectual Property Agreement, (TRIPS) (1994) the NZ Government has acted inconsistently with the Treaty of Waitangi. The hearing of this claim is expected to extend until the year 2002.[70]
Mr Peteru suggested that one way to protect plants is to introduce the notion of quality, and to develop systems and labels for appellations of origin similar to those used by wine growers in Europe.[71] Such appellations of origin are protected under the TRIPS Agreement. Several Pacific countries have begun using appellation of origin for their cultural products.
Participants noted that laws alone cannot solve the problems caused by the exploitation of traditional knowledge and Indigenous people’s cultural expression. Protection mechanisms should also include non-legal measures. A range of non-legal measures were discussed, including:
Many countries reported on the establishment of national archives where collected cultural material could be properly stored for preservation and also allow greater public access to cultural property. For instance, Samoa is establishing a museum and archive to record, develop and promote various cultural items.[72] In Australia, we have a range of national institutions such as the Australian Institute of Aboriginal and Torres Strait Islander Studies and the Museum of Australia which have similar functions.
The Cook Islands has a national archive where collected traditional cultural knowledge and property is stored and made available to Cook Islanders. The National Archive aims to develop policies on copying and conservation practices, and to develop a plan for cataloguing, retrieving and managing archives or records. It was also reported that much previous archival material is scattered in overseas institutions, such as the Alexander Turnbull Library in New Zealand and the Bishop Museum in Hawaii. Part of the role of the Cook Islands Archives is to seek repatriation of this material.[73]
Some countries reported on attempts to protect their Indigenous cultures by setting up database and registration systems. For instance in French Polynesia, the Department of Oral Tradition is recording customs and traditions in written forms including audio and visual recordings, and establishing a database.[74]
Many countries reported on attempts to preserve languages. For instance, the Marshall Islands had enacted laws establishing the Marshall Islands Language Commission, the primary function of which is to investigate methods for the preservation, development and encouragement of traditional language use.[75]
The Northern Mariana Islands have established a Chammo-Carolinian Language Policy Commission which aims to ensure the continued use of the Chammorro and Carolinian languages.[76]
Mr Scott Morris from Australasian Performing Rights Association Ltd presented a paper on the collective administration of author’s rights and the potential benefits if this system were used to follow up cases of exploitation of traditional and popular culture. Such a system would:
Mr Morris also noted that collecting societies are non-profit organisations run by a board of management. He noted that the collective administration system also has the potential to operate as a trust structure for Indigenous communities. It also provides protection beyond national boundaries if reciprocal agreements are signed by societies administering similar rights in other countries.
FSM reported that the government is currently considering administrative solutions for protecting cultures, including the establishment of collecting societies and management systems to protect Micronesian cultures. FSM also commented that collective administration would offer scope for recognising communal rights to dances and songs.[78]
Many Pacific countries reported on the need for protection in relation to research conducted in their countries by outsiders.[79] Some countries reported the use of research agreements and the sharing of research findings with the country where research was conducted. For example, in a study to be undertaken soon in Norfolk Island on cardiovascular risk factors, an agreement is being developed between the researchers and the Indigenous participants in the study.[80]
The Solomon Islands has a Research Act 1982 which requires researchers to apply for and obtain permits nine months prior to commencing research projects. The research must be beneficial to the Solomon Islander people, and researchers are also required to deposit $2,000 and copies of the research results at the National Library.[81]
The Vanuatu Cultural Centre has developed the Vanuatu Cultural Research Policy which aims to preserve culture through proper documentation whilst also maintaining community control over the rights to the knowledge. Given limited funding, most research is undertaken by foreign researchers, and so the Policy provides that no research can proceed unless it receives the approval of the local community to be involved in the research. Other conditions include:
New Zealand reported that it is currently developing an authenticity label for Maori cultural products. The label will work similarly to the proposed authenticity label for Australian Indigenous products.[83]
In order to protect the diverse cultures of Papua New Guinea, the National Cultural Commission of Papua New Guinea is currently drafting a national cultural policy which aims to introduce policies for the overall management of cultures and cultural material at national provincial and district levels.[84]
Vanuatu reported that the Vanuatu Cultural Centre has developed a traditional copyright holders' agreement covering commercial use of cultural expression. The terms of the contract include payment of royalties to traditional owners and limitations on the number of reproductions.[85]
The potential for protecting Indigenous cultural interests through professional protocols or ethical guidelines was also noted in the course of discussions. These may relate not just to the scientific community, but to all professional communities working with Indigenous cultural material. For instance, Aroha Mead of New Zealand noted the code developed by the International Society for Ethnobiology to guide gene researchers when collecting, researching and working in Indigenous and local communities.[86]
At the final session of the Symposium, the participants adopted a comprehensive declaration based on discussions and workshops held at the Symposium. This declaration is reproduced on page 143 of this edition of AILR, and focuses on the following issues:
The Declaration will be presented by the South Pacific Community to the Council of Pacific Arts and to WIPO as the common position of Pacific nations in their current attempts to establish international regimes for the protection of their Indigenous cultural and intellectual property.
The Symposium highlighted the fact that Australian and Pacific Indigenous peoples face a very similar situation in their attempts to deal with the continuing exploitation of their cultural and intellectual property. The Forum provided valuable information about how Pacific countries are attempting to provide cultural protection through both legislative and non-legislative mechanisms.
A major difference for Indigenous Australians was that many of the Indigenous peoples in the Pacific now enjoy sovereignty within their national boundaries, and are therefore more able to deploy the political will necessary to initiate reforms. In Australia, Indigenous Australian people are in the minority, and will thus find the task of bringing about change much more difficult. There are also other issues that act as barriers including diversity of indigenous groups and lack of adequately skilled Indigenous managed infrastructure. Despite this, the Symposium and the final Declaration provide a strong directive to WIPO on the range of measures Indigenous people require in order to formally protect their Indigenous cultural and intellectual property rights.
[1] Terri Janke is a solicitor with Michael Frankel and Company Solicitors in Sydney. She attended the Symposium as Adviser to ATSIC Commissioner Preston Thomas, the Australian delegate appointed by UNESCO.
[2] UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore, adopted by the General Conference at its 25th session, Paris, 15 November 1989.
[3] See next section for definition.
[4]UNESCO, above note, Paragraph B(a).
[5]UNESCO, above note, Paragraph C(a).
[6]Mrs Noriko Aikawa, Chief of the Intangible Heritage Unit representing the Director General of UNESCO, p 1
[7] UNESCO Office for the Pacific States, Final Report Regional Seminar on the Application of the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore in the Countries of the Pacific, New Caledonia 11 - 12 February 1999, p 5
[8] UNESCO, above note 2, Paragraph A.
[9] Report by Mr Lam Dang, delegate from the Federated States of Micronesia.
[10] Dr Lawrence Kalinoe and Jacob Sinet, 'Written Report on the Situation in Papua New Guinea in regard to the Protection of Traditional Knowledge and of the Expressions of Indigenous Cultures,' p 3
[11] Model Provisions, Section 2
[12] Mr Salah Abada, Chief of Section, Division of Creativity, Cultural Industries and Copyright, UNESCO address to the Symposium.
[13] Ibid.
[14]Mrs Marie-Claude Tjibaou, Welcoming address at the Symposium.
[15] Mr Tebania Tebakabo, Report to the Symposium.
[16] Declaration on the Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands, developed and adopted at the Symposium.
[17] Ms Ngatuiane Maui, Report to the Symposium on the Situation in the Cook Islands in regard to the Protection of Traditional Knowledge and of the Expressions of Indigenous Cultures.
[18] Republic of Palau, Country Report, Symposium on the Legal Protection of the Expressions of the Pacific Indigenous Cultures, page 1.
[19] As above, p 2
[20] Mr Tebania Tebakabo, Kiribati, Report to the Symposium.
[21] Terri Janke, “The Protection and Recognition of Australian Indigenous Cultural and Intellectual Property Rights: An Overview of the Australian Project Our Culture: Our Future, page 5
[22] As above.
[23] (1998) 3 Australian Indigenous Law Reporter 547 - 561
[24] A kind of cultural policeman who has the obligation to ensure that the owners of certain land and knowledge associated with theland is dealt with in accordance with Indigenous custom, law and tradition.
[25] Ibid, at 552
[26] Ms Marie-Claude Tjibaou, Chairperson of Agence de Development de la Culture Kanak, Opening Address.
[27] Mr Octave Tonya, Chairperson, Council of Pacific Arts, Opening Address.
[28] Mr Clark Peteru, 'Protection of Biological Diversity and Genetic Resources', Paper presented at the Symposium.
[29] Mr Lawrence Foa’na’ota, Director of Museum, Solomon Islands, Report presented at the Symposium.
[30] Mr Ralph Ragenvanu, Vanuatu Cultural Centre, Report presented at the Symposium.
[31] Ms Janet Maki, Solicitor General, Cook Islands, Report presented at the Symposium.
[32] Alexis Leleivai, Wallis and Futuna, Report presented at the Symposium.
[33] Mr Clark Peteru, ''''Protection of Biological Diversity and Genetic Resources'''', Paper presented at the Symposium.
[34] As above.
[35] Paula S Bloomfield, Written Report presented to the Symposium on the Situation in Tonga in Regard to the Protection of Traditional Knowledge and of the Expressions of Indigenous Cultures, p 2
[36] Mr Clark Peturu, op cit. See also David Robie, “Bio-pirate’ face legal test in Pacific Blood Feud,” The Bangkok Post, 13 November 1995, page unknown.
[37] Pierre-Yves Gautier, “Protecting the Spiritual and the Intangible: The Cultural Creations of the Pacific Peoples”,
[38]As above.
[39] As above.p 2
[40]I As above. Cited by Professor Gautier.
[41] As above., p 2
[42]As above.
[43] As above.p 3
[44] As above., p 4
[45] Professor Peter Jaszi, 'Authorship and New Technologies from the Viewpoint of Common Law Traditions', presented at the Symposium.
[46] ''''Expressions of Folklore'''' is defined in the Samoan copyright Act 1998 as
a group-oriented and tradition-based creation by groups or individuals reflecting the expectation of the community as an adequate expression of its cultural and social identity, its standard and values as transmitted orally, by imitation or by other means. They include folk tales, poetry, riddles, songs, instrumental folk music, folk dances and plays, production of folk arts such as drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, handicrafts, costumes and Indigenous textiles. (is this a quote? Need quotation marks)
[47] Mose Fulu, Report to Symposium on the Situation in Samoa in regard to the Protection of Traditional Knowledge and of the Expressions of Indigenous Cultures, p 1
[48] As above.
[49] As above., p 2
[50] Ralph Regenvanu, Written Report to Symposium, p 1
[51] As above., p 3
[52] Applicant v Indofurn (the Carpets Case) ; Bulun Bulun v R & T Textiles full citation
[53] Professor Kamal Puri, 'Exploitation of Indigenous Traditional Culture', Paper Presented to the Symposium, p 3.
[54] Law No 56-11-6, 3 November 1956
[55] Report presented by French Polynesian delegation to the Symposium.
[56] Mr Botlang Loeak, Vice-Chairman of Alele Museum, 'Report on the Situation in the Marshall Islands in regard to the Protection of Traditional Knowledge and of the Expressions of Indigenous Cultures' , p 3.
[57] Title 26 of the FSM Code
[58] 26 FSMC Section 101.
[59] Mr Lawrence Foa’na’ota, Director of Museum, Solomon Islands, 'A Brief Report on the Situation in Solomon Islands regarding the Legal Protection of Traditional Knowledge and Expressions of Indigenous Cultures', p 2
[60] Article V of FSM Constitution.
[61] Article VI as cited by Mr Botlang Loeak, Vice-Chairman of Alele Museum, Report on the Situation in the Marshall Islands in regard to the Protection of Traditional Knowledge and of the Expressions of Indigenous Cultures, p 2.
[62] Schedule 2.1 of the Constitution of Papua New Guinea.
[63] Dr Lawrence Kalinoe and Jacob Sinet, 'Written Report on the Situation in Papua New Guinea in regard to the Protection of Traditional Knowledge and of the Expressions of Indigenous Cultures', p 5
[64] Mr Ralph Ragenvanu, Vanuatu Cultural Centre, Written Report to Symposium, p 2
[65] Ms Julie Olsson, Nauru Country Paper, Symposium on the Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands, p 2
[66] Above, note 37
[67] As above p 6
[68]Rome, 24 June 1995
[69] Report by Mr Lam Dang, delegate from the Federated States of Micronesia.
[70] Aroha Mead, New Zealand Delegate, Oral Report to Symposium.
[71] As above.
[72] Mose Fulu, comment during Symposium..
[73] Report presented by Cook Islands delegate to the Symposium.
[74] Report presented by French Polynesian delegation at the Symposium. p 1.
[75]Article VI as cited by Mr Botlang Loeak, Vice-Chairman of Alele Museum, 'Report on the Situation in the Marshall Islanders in regard to the Protection of Traditional Knowledge and of the Expressions of Indigenous Cultures,' p 2.
[76]Ana Sabian Teregeyo, delegate from the Northern Mariana Islands, written report to Symposium, p 5.
[77] Scott Morris, 'The Experience of Collective Administration of Author’s Rights and the Possibilities for its Application to the Follow up of Exploitation of Traditional and Popular Culture'.
[78] Mr Lam Dang, delegate from the Federated States of Micronesia.
[79] Wallis and Futuna reported that writers or researchers get local people to work free of charge in contributing to books which are then sold at very high prices, Alexis Leleivai, Written Report to Symposium, page 2.
[80] Ms Rhonda Griffiths, Country Statement, Norfolk Islands, page 2
[81] Lawrence Foa’na’ota, Director of Museum, Solomon Islands, 'A Brief Report on the Situation in Solomon Islands regarding the Legal Protection of Traditional Knowledge and Expressions of Indigenous Cultures', p 6.
[82]Mr Ralph Ragenvanu, Vanuatu Cultural Centre, written paper to Symposium
[83]As above.
[84] Dr Lawrence Kalinoe & Jacob Sinet, 'Written Report on the Situation in Papua New Guinea in regard to the Protection of Traditional Knowledge and of the Expressions of Indigenous Cultures', page 2
[85] As above.
[86] Aroha Mead, New Zealand Delegate, Oral Report to Symposium
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