The Final UNESCO Report of the Symposium on The Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands in notes that Australia, New-Zealand and Papua New Guinea are involved in an in-depth study of overall protection for "indigenous cultural and intellectual property", having found that the system of intellectual property protection currently in force is ill adapted to protect these areas. Which Way Forward?
The fundamental question is whether to try to amend western style intellectual property laws so that they better fit with the prevailing conditions in the region or whether to start afresh with a new system. There have been recent attempts to adapt western-style legislation to the specific needs of the region. They are trying to solve the problems of the lack of protection of traditional knowledge with a system based on principals that do not recognise the value of such protection. The protection that is required is permanent protection for knowledge and expressions of culture that have been developed and passed down through generations.
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Often this knowledge is community owned and the result of collaborative efforts. Further, often protection is wanted without the necessity for public disclosure, as is the case for sacred knowledge and rituals. As should be clear from the discussion above, protection of this sort falls outside the aegis of western-style intellectual property laws.
On a practical level, western intellectual property legislation is predicated upon a highly developed, literate and bureaucratic society with a strong State to administer and enforce law. These are not characteristics of many South Pacific countries. There are also fears about the effect of intellectual property laws on the use of resources by the indigenous population. The response stated:. Sue Farran has also noted the dangers of introducing western style intellectual property protection in the context of natural resources:.
Suchman states:. So, if we conclude that western style intellectual property protection cannot meet the needs of indigenous intellectual property, what can? There has been a great deal of discussion of this issue at an international and regional level. One of the responses that have been suggested is sui generis protection. Successful examples of the use of traditional knowledge and natural resources also suggest another solution, namely contract.
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These two ideas will be discussed in the remaining section of this paper. The policy objective of the Model Law is to protect the rights of traditional owners in their traditional knowledge and expressions of culture and to permit tradition-based creativity and innovation, including commercialisation thereof, subject to prior and informed consent and benefit-sharing. Ideologically it seeks to achieve a balance between protecting traditional knowledge and expressions of culture and encouraging their commercialisation.
This was specifically recognised by the drafters of the law, who stated in their Background Paper:. It is clear that the Model Law utilises the South Pacific rationale for intellectual property protection — that there is no distinction between the protection of tangible and intangible property — rather than the western justification of limited rights. The Model Law carefully positions itself to regulate only those uses of traditional knowledge or expressions of culture that are not regulated by either customary law or intellectual property rights.
The definition of TKEC is extensive and aims to overcome the limitations of western style intellectual property regimes by expressly including works not in material form, works that have been transmitted from generation to generation, and works that are collectively originated and held. Traditional Cultural Rights are similar in some respects to western style intellectual property rights but differ in other respects. They include the right to reproduce, publish, perform and to make available online TKEC. However, the rights are inalienable and continue in force in perpetuity.
These are the right of attribution, the right against false attribution and the right against derogatory treatment in respect of traditional knowledge and expressions of culture. It contains detailed provisions to ensure that TKEC is only dealt with in a non-customary way after prior and informed consent has been obtained from the traditional owners. It provides for two ways of seeking authorisation: directly through a custom owner and indirectly through a Cultural Authority.
The Cultural Authority is essentially the administrator and enforcer of the Model Law. The Model Law provides that each country may either create a new Cultural Authority or designate an existing body to take on the new responsibilities. This may overcome the present problems discussed above that many countries in the region are experiencing in enforcement of intellectual property laws, although it is possible that the same problems would be experienced with the new authority.
One aspect of the Model Law that has the potential to be problematic is its relationship with traditional intellectual property rights. The policy of the Model Law is to complement and not undermine intellectual property rights. The problem arises in practice in determining whether or not intellectual property protection applies. This is particularly difficult in the case of copyright for which there is no system of registration, and for which there are no bright lines. An example should demonstrate the difficulty that may arise.
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A new work is created that appears to fall under the copyright system. It is then alienated by the author to a third party.
Eventually it becomes clear that in fact the work is not protected by copyright but falls under the protection of the Model Law. An offence has therefore been committed by the alienation of the work. Given that such an offence can be punished by imprisonment, this is a serious consideration.
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It would seem absurd that it is necessary to go to court for a determination that copyright subsists in a work before the provisions under the Model Law could be safely dispensed with, and yet there is currently no other apparent way around the problem. Perhaps a new defence could be incorporated of parties dealing in good faith with a work as if it was protected under an intellectual property regime.
Clause 12 of the Model Law provides that even a derivative work that falls under the intellectual property regime is subjected to the moral rights requirement of the Model Law. It is not clear why intellectual property rights are given priority over the Model Law. One could speculate that it is due to international pressures to maintain the status quo. However, the system created under the Model Law appears to have found a balance between protection of culture and encouragement of commercialisation of culture that is specifically designed for the South Pacific.
It therefore appears infinitely preferable over the intellectual property regimes whose shortcomings have been detailed above. The Model Law has not yet been enacted into law in any country in the region. Contract can also prove to be a valuable tool to ensure that local communities are given a share of profits that come from the exploitation of natural resources by multinational companies. Prior to the commencement of his research, the scientist who discovered the compound agreed with the Samoan chiefs that the village would share the benefits of the research. This promise was formalised by an agreement in September that gave the Samoan government Professor Puri stated:.
It was noted that in the Solomon Islands contracts are being formally signed between researchers and representatives of the community, area council, provincial council and Government, with royalties going back to the community.
One of these is the unequal bargaining power of the two parties as a result of their disparity in, amongst other things, information about the potential value of the intellectual property. It is noteworthy that in the case of the development of the Samoan mamala plant the development agency was a not for profit institution. The creation of an independent body to negotiate contracts would also help to avoid the problems of unscrupulous governments signing contracts authorising the exploitation of resources against the wishes of the people.
This would help to ensure that genetic resources are not removed from their environment without the informed consent of the traditional owners. Such models are in the process of being created by numerous different organisation, see for example the Protection of Traditional Knowledge and Expressions of Culture Act , draft drafted by the Genetic Resources Action International.
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Foremost among these is awareness-raising among communities of the potential value of traditional knowledge and genetic resources. Perhaps other state institutions, such as customs control, could be utilised to provide such assistance. The use of national heritage policy and legislation can also play an important role in the preservation of traditional cultures and knowledge systems.
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For example, the PNG National Culture Commission is directly involved in the preservation, protection, development and promotion of the cultures of the people of Papua New Guinea, in both traditional and modern cultural forms. Conclusion The discussion above has demonstrated at the present stage of development in the region, the real need for protection is in the areas of traditional ecological knowledge, innovations and practices, and traditional knowledge and expressions of culture.
It has shown that western style intellectual property laws are ill-suited to protecting these areas of intellectual property on both a policy and a practical level. Despite this, the current trend has been to introduce such laws and there are strong pressures on governments in the region to continue with this trend, not least from international organisations such as the World Trade Organisation.
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This paper has also demonstrated that there has been a lot of well researched and innovative development at an international and regional level in regard to the protection of traditional knowledge, expressions of culture and natural resources. This research shows there are many possible ways to protect traditional knowledge and culture and natural resources other than by introducing western-style intellectual property laws. Governments in the region should try to be inventive and to give consideration to some of these suggestions before continuing down the path of adopting western-style intellectual property protection.
Further, if systems to protect the intellectual property needs outlined above are specifically crafted to meet the ideological and practical requirements of the countries in the region; then it can be hoped that when new sorts of intellectual property require protection, these systems can be modified to protect them as well.
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Thus the intellectual property system would be one that grows from grass-roots support, rather than one that is imposed from the top down, which would surely give it greater legitimacy and relevancy.