Editors --- "Recommendation on the Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands - Digest" [1999] AUIndigLawRpr 37; (1999) 4(3) Australian Indigenous Law Reporter 143

Recommendation on the Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands

Noumea, New Caledonia,

February 1999

A Symposium on the Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands was held in New Caledonia from 15 to 19 February 1999. The Symposium was organised at the request of the Council of Pacific Arts, under the auspices of the Secretariat for Pacific Countries (SPC) and the United Nations Educational Scientific and Cultural Organization (UNESCO), and included the following members of the Council of Pacific Arts: Australia, Cook Islands, Federated States of Micronesia, Fiji, French Polynesia, Kiribati, Marshall Islands, Nauru, New Caledonia, New Zealand, Niue, Norfolk Island, the Commonwealth of the Northern Mariana Islands, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Vanuatu, Wallis and Futuna.

The Symposium adopted the following Declaration on the Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands, which articulates in concrete terms the concerns of the Symposium. The Declaration will be presented by the SPC Cultural Affairs Officer to the Second Meeting of the Executive Board of the Council of Pacific Arts (Noumea, 22-23 February 1999), WIPO and the Conference of the Pacific Community (French Polynesia, 18-19 October), for endorsement. It will also be submitted to the UNESCO General Conference (Paris, October/November 1999) by the UNESCO representative in the context of the implementation of UNESCO's 1999 programme, and will serve as a programming reference for the 2000/2001 biennium for the needs of the South Pacific sub-region.

Declaration

• Considering that the majority of Pacific countries and territories do not have appropriate legal tools to protect the expressions of indigenous cultures and their intellectual property;
• Recognising the need to promote awareness of the crucial importance of protecting the Pacific cultural heritage, particularly in the context of globalisation of the economies and increasing development of information technologies;
• Noting that several initiatives are currently taking place in the Pacific at national and regional levels to promote the establishment of intellectual property legislation;
• Stressing the need for a collective voice for the Pacific islands in the international fora and for concrete and effective measures at national, regional and international levels in the region.

The Symposium endorsed the Declaration on the protection of traditional knowledge and expressions of indigenous cultures in the Pacific Islands, for presentation to and endorsement by all Pacific countries and territories, SPC, UNESCO, WIPO, the Forum Secretariat, SPREP, USP and SOPAC, and consisting of :

• The definition of traditional knowledge and expressions of the indigenous cultures of the Pacific Islands contained in the Declaration;
• The Pacific position on the international debate on the protection of traditional knowledge and expressions of indigenous cultures;
• Recommendations for a policy of regional harmonisation of the protection of traditional knowledge and expressions of indigenous cultures; and
• Recommendations for technical assistance and support of a homogenous system of legal protection, identification, conservation and control of exploitation, of indigenous culture in the countries and territories who are members of the Pacific Arts Council.

Definition of traditional knowledge and expressions of the indigenous cultures of the Pacific islands

The traditional knowledge and expressions of indigenous cultures are defined as the ways in which indigenous cultures are expressed and which are manifestations of worldviews of the indigenous peoples of the Pacific. Traditional knowledge and cultural expressions are any knowledge or any expressions created, acquired and inspired (applied, inherent or abstract) for the physical and spiritual well-being of the indigenous peoples of the Pacific. The nature and use of such knowledge and expressions are transmitted from one generation to the next to enhance, safeguard and perpetuate the identity, well-being and rights of the indigenous peoples of the Pacific. This knowledge and these expressions include and are not limited to:

• spirituality, spiritual knowledge, ethics and moral values,
• social institutions (kinship, political, traditional justice),
• dances, ceremonies and ritual performances and practices,
• games and sports,
• music,
• language,
• names, stories, traditions, songs in oral narratives,
• land, sea and air,
• all sites of cultural significance and immovable cultural property and their associated knowledge,
• cultural environmental resources,
• traditional resource management including traditional conservation measures,
• all material objects and moveable cultural property,
• all traditional knowledge and expressions of indigenous cultures held in ex situ collections,
• indigenous peoples ancestral remains and human genetic materials,
• scientific, agricultural, technical and ecological knowledge, and the skills required to implement this knowledge (including that pertaining to resource use practices and systems of classification),
• the delineated forms, parts and details of visual compositions (designs), permanently documented aspects of traditional indigenous cultures in all forms (including scientific and ethnographic research reports, papers and books, photographs and digital images, films and sound recordings).

The Pacific position in the international debate on the protection of traditional knowledge and expressions of indigenous cultures and appropriate action required

In order to achieve a regional position in the international debate on the protection of traditional knowledge and expressions of indigenous cultures, the Pacific countries and territories and regional organisations agree to the following:

• Acknowledge and build on the recommendations of the Mataatua Declaration on the Cultural & Intellectual Property rights of Indigenous Peoples (1993) and the principles of the Treaty for a Life-forms Patent Free Pacific & Related protocols (1995);
• Recognise the intrinsic role of indigenous cultures in planning and development and include indigenous representatives in future relevant regional and international negotiations and meetings;
• Develop and enhance existing cultural and intellectual property laws, including Copyright, Trademarks and Patents to ensure that procedures are in place to protect traditional cultural heritage from being wrongfully misappropriated;
• Request the declaration of a moratorium in the Pacific region on the patenting of life-forms until such time that sufficient national and regional protection mechanisms are in place;
• Encourage local level systems of protection, management and monitoring of traditional knowledge and expressions of indigenous cultures as a means of assisting states to develop and enforce legislative and administrative measures to prevent wrongful exploitation;
• Encourage institutions, governments and the industrial sector to work with indigenous peoples to develop voluntary mechanisms to protect traditional knowledge and cultural expressions of indigenous peoples of the Pacific, inter alia, Memorandum of Understanding, Code of Ethics and Research protocols;
• Request as a priority SPC, UNESCO, WIPO and FORSEC to coordinate regional seminars to develop Model sui generis Laws on the protection of traditional knowledge and expressions of indigenous cultures of the Pacific;
• Accept and endorse the recommendations of the Regional Seminar on the Application of the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore in the Countries of the Pacific (Noumea, 11-12 February 1999);
• Request UNESCO to support and promote a greater awareness of customary systems of ownership, management and transmission of indigenous peoples’ cultural heritage through undertaking national and regional research and seminars drawing on the expertise of traditional experts as a dedicated regional activity towards the International Decade for the World’s Indigenous Peoples;
• Urge regional and relevant inter-governmental agencies and the industrial sector to develop and strengthen closer co-operation on projects and activities relating to traditional knowledge and expressions of indigenous cultures.

Recommendations for a policy of regional harmonisation of the protection of traditional knowledge and expressions of indigenous cultures

• Any approach to harmonise the protection of traditional knowledge and expressions of indigenous culture must take into account different needs of Pacific countries and territories;
• Common goals for the protection, preservation, conservation, promotion and/or enhancement of traditional knowledge and expressions of indigenous cultures through legal and non-legal means can be conceived despite these differences;
• Regional goals approach should reflect the cases of inappropriateness of conventional intellectual property rights regime for the protection of traditional knowledge and expressions of indigenous cultures; and
• Appropriate model sui generis law for the region for intellectual property rights must be developed to ensure protection for heritage and environment while promoting reciprocity amongst Pacific countries and territories;
• The development of an effective Pacific/regional bloc to negotiate at the international arena must be fostered. To ensure the viability of such a regional policy, countries and territories must adopt the following measures:
• Develop, enact and implement appropriate legislation useful for the protection of traditional knowledge and expressions of indigenous cultures that are consistent with the regional goals;
• Develop non-legal mechanisms specific to the needs of individual sustainable Pacific countries and territories;
• Develop sustainable mechanisms in the political, social, scientific, economic, educational and structural areas in line with the legal regimes for the 'protection' of traditional knowledge and expressions of indigenous cultures.

Recommendations for technical Assistance and support of a homogenous system of legal protection, identification, conservation and control of exploitation, of Indigenous Culture in the countries and territories who are members of the Pacific Arts Council

Pacific countries and territories have different levels of development and therefore different needs, which include, but are not limited to:

1. Legal protection and administration

• drafting of legislation related to copyright, trademarks, biodiversity and sui generis protection;
• formulation of a code of ethics for researchers in the region;
• setting-up of mechanisms for collective management; and
• creation of a regional network for the exchange of technical personnel and information.

2. Training

• public awareness programs;
• training of local experts;
• recognised outside experts; and
• licence negotiations and access arrangements.

3. Collection

• identification of property rights and their owners;
• training of collectors;
• creation of databases.

Recognising the right of the different countries to meet their needs in their own way, the Symposium adopts the following priority recommendations:

Recommendation 1:

Assisting Pacific Island countries and territories on drafting of legislation that shall include:

• copyright and trademark laws;
• environmental laws; and
• collective management systems.

Recommendation 2:

That as a priority SPC, UNESCO, WIPO and FORSEC coordinate regional seminars to develop Model sui generis Laws on the protection of traditional knowledge and expressions of indigenous cultures of the Pacific.

Recommendation 3:

The recruitment of a (bilingual) regional legal adviser position for intellectual property at SPC, in collaboration with members.

Recommendation 4:

Establishment of an ongoing training programme on legal drafting skills at the earliest opportunity (2000), under the SPC programme.

Recommendation 5:

The training of local experts:

• legal,
• conservation, and
• implementation of local protection.

Recommendation 6:

The establishment of university chairs on intellectual property rights in the region with proposed funding from UNESCO and others.

Recommendation 7:

That priority be given to local experts in the area of technical assistance.

The Symposium also encouraged countries which are members of UNESCO and WIPO to submit national proposals for technical assistance from those organisations.