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One of the criteria for Vanuatu's membership of the World Trade Organisation is compliance with requirements established by the Agreement on Trade-Related Aspects of Intellectual Property Rights[1] to ensure that the intellectual property laws of the country conform with certain global standards. This has to be done by 2006[2] In order to participate in global markets, and in particular to attract inward investment, steps have to be taken to curb intellectual property piracy in the country. There is also the need to protect indigenous intellectual property from the piracy of external markets. In 2000, the Vanuatu parliament passed the Copyright and Related Rights Act 2000 (Vanuatu) ('the Act'). A close analysis raises the question of whether political expediency may have outweighed critical consideration of effectiveness.
The Act is not yet in force as it has not yet been published in the Vanuatu Gazette and it is not unknown for acts of the Vanuatu parliament to remain ungazetted. However, once in force, it is uncertain whether the legislation will live up to the aspirations generated by the media, or those who lobbied for it, for two reasons. First, legislative attempts to control piracy in the Pacific have met with little success to date. Secondly, it is doubtful whether the rather slim provision in the new Act (it has 45 sections compared, for example, with the 249 sections of the Copyright Act 1968 (Cth)) will effectively protect indigenous cultural property.
Vanuatu previously had no national copyright legislation. Under the Constitution of the Republic of Vanuatu, there
is provision for 'existing laws' -that is the laws of the condominium powers England and France, to remain in force except where such laws were incompatible with _ custom or the sovere1gnty of the country (article 95). Because copyright laws tend to be nationally focused, both in terms of geography and the definitions of 'persons' and 'works' protected by the legislation, it is questionable whether either the copyright laws of England or France would have applied to Vanuatu.[3] Even if they had applied to French citizens or British citizens living in the New Hebrides (now Vanuatu) prior to independence, they would not have applied to indigenous ni-Vanuatu who were governed, either by customary law, or by joint Regulations passed by the joint powers of the Condominium government
In length and substance, the Act is closely comparable to copyright legislation of other Pacific Islands. The main points of distinction are the provisions relating to rights management 1nfonnnation, abuses of technical means of protection, and greater reference to the role of custom -which 1n Vanuatu is recognised as an official source of law (articles 47, 51, 74 and 95 of the Constitution of the Republic of Vanuatu]- The Act provides:
• the usual copyright protections, including protection of original works, performances, sound recordings and broadcasts, and derivative works;
• how economic and moral rights of the owner of the copyright are to be determined;
• which acts are not to be taken as infringements of copyright; and
• the duration of copyright
In Part 7 of the Act, there are two sections regarding expressions of indigenous culture. An indigenous ni Vanuatu may rely on this protection alone, or in addition to other protections in the Act Although possibly inspired by the South Pacific Commission's Model Law for the Protection of Traditional Knowledge and Expressions of Culture 2002 ('Model Law’)[4] the provisions are considerably more limited than those suggested under the Model Law and may raise a number of enforcement difficulties.
Concern about piracy has been voiced in a number of Pacific Island countries including Fiji,[5] the Cook lslands[6] and Papua New Guinea.[7] Copyright piracy is a boom industry in Vanuatu. It benefits local video hire shops, stores selling CDs, DVDs and logo-emblazoned goods and clothing. It also benefits the consumer, including the ubiquitous tourists and daytripping cruise ship tourists, as well as local people, the majority of whom could not afford originals.
The Act makes special provision for 'Rights management information' (section 2) and creates a statutory offence
for interfering with rights management information, including distributing or making works publicly available with the knowledge that the electronic rights management information has been tampered with (section 36). Section 36 is a s1mplified version of sections 116B(a) and 11 6C of the Copyright Amendment (Digital Agenda) Act 2000 (Cth), although the Act contains no requirement that the prohibited action be done for the 'purposes of trade'. In Australia, this area of law has already raised interpretation difficulties[8] although this may be partly due to the extensive detail of the Copyright Act 1968 (Cth). Bearing in mind the highly technical aspects of such cases, there must be some doubts as to whether the local Vanuatu legal environment is capable of regulating such technical legal matters. In particular there are problems of proving the requisite 'knowledge' element and, in many instances, no effort is made to remove the rights management information (eg, pirated videos).
Government and consumers are well aware of piracy. However, even where infringements do occur, difficulties with enforcement remain. For example, in Fiji efforts have been made to strengthen the impact of its copyright laws by policing regulations (eg the Copyright Border Protection Regulations 2003 (Fiji) and the Copyright Prescribed Countries Regulations 2003 (Fiji)). However, such enforcement is expensive and difficult across islands that cover large geographical areas.
Expressions of indigenous culture
Vanuatu has a rich cultural heritage. This heritage manifests in many ways, including in song, dance, costume, carvings, various artistic works, language and ceremonial demonstrations of custom. Standard copyright provisions tend to be inappropriate to protect such works. It may be impossible to ascertain when the expression first came into existence or to p1npo1nt the original owners. Ownership may be communal. It may also be perceived to stretch across past, present and future generations. In this context, the Act creates an offence for those who are not customary owners, or have not been authorised by the customary owners, or have not acted 'in accordance with the rules of custom', to do or authorise any act which infringes the 'economic rights' of the customary owner(s) (sections 8 and 23). Under section 42, there is provision for a civil claim to be made by the customary owners, in addition to the statutory offence under sect1on 41. If the true customary owners cannot be ascertained, or if there is a dispute about ownership, then the National Cultural Council, a statutory body established under the National Cultural Council Act 1988 (Vanuatu), may institute proceedings to protect copyright in express1on of indigenous culture 'as if it were the owner of the copyright or other right' (section 42(4)). The Council is to administer any economic benefits derived from copyright claims 'for the purposes of indigenous cultural development' (section 42(4)). Although it is not stated in the Act, it would seem that once the true customary owner is identified then the stand1ng of the Cultural Council ceases. In the meantime, any economic benefits will not be held on trust by the Cultural Council but d1spersed under section 42(4).
The Act also refers to the possibility of approved copying done 'in accordance with the rules of custom'. Traditionally, magic and fear of misfortune, ill health or bad luck are believed to be the punishment for committing or attempting to commit copyright-type infringements. Taboos declared by chiefs or village councils, or established procedures for seek1ng permission for use, have regulated copyright or copying. Traditional regulations require respect and belief in the system for the rules to be effective. If the sanctions of chiefs and the supernatural do not work, then there may be recourse to the formal courts. Fortunately, the Constitution of the Republic of Vanuatu provides that the courts must take custom into account wherever possible, so the Supreme Court may give effect to customary controls-as indeed it did in 'the land diving[9] case of In Re the Nogal Jump, Assal & Vatu v the Council of Chiefs of Santo [1980-1994] Van LR 545. In that case, the court recognised that the performance and commercial exploitation of this spectacle was regulated by customary procedural controls, through different levels of chiefs, appropriate traditional payments, the sanction of customary fines and supernatural intervention.
However, a number of infringements of Indigenous culture are committed by transient people within the jurisdiction of the country, including visitors to Pacific Arts Festivals, freelance photographers and tourists. Unless infringers are immediately apprehended (in which case they may ra1se the defence under section 41 (2)(a) of the Act, that the recording or photograph is for exclusive personal use) it is probable that they will leave the island before the infringement is realised.
Even if the infringer intends to act in accordance with the legislation, working out how to comply would not be easy. There is no homogenous customary law in Vanuatu. There are over one hundred indigenous languages and three official languages. Frequent ownership disputes regarding the identity of the owners or their authorised representatives occur. Therefore there is a strong possibility that the National Cultural Council may benefit from this part of the Act, rather than the indigenous owners.
What the Act may do is protect the creative output of young singers, artists and performers from external copying and commercial exploitation. There is an embryonic music industry in Vanuatu, which needs to be better protected if it is to flourish. Sometimes the music is original. Often it is influenced by International trends in the mus1c industry. It may be partly original and partly copied. While local artists need some protection from having their work copied without acknowledgement, this may mean that they, in turn, cannot copy or incorporate the work of international artists and performers given that most of the groups in Vanuatu cannot afford to pay royalties.
Part of the Act is directed at protecting performers (sections 23-29) of not only music, but also dance and other spectacles. There is also protection for producers of sound recordings and broadcasting organisations (sections 27-31). These are important, innovative provisions. Properly monitored, and provided performing artists are aware of their rights, this could give Vanuatu's performers a boost and encourage investment in this young industry. The Act further stipulates the equitable division of financial returns between performer and producer. Managed correctly, this can be beneficial to both sides.
Unfortunately, the Act makes no provision for the setting up a specific trust body to manage income derived from copyright for the rightful beneficiaries. This is despite the fact that significant amounts of money are due to beneficiaries.[10] While, the Fiji Performing Rights Association acts as the collecting agency for Fiji composers of music, if they fail in their responsibilities, individuals must either act for themselves or rely on societies, corporations or trusts set up under other laws to recover moneys owed.. The only remedy provided in the Act is a civil application to the Supreme Court (section 34), which is an expensive and time-consuming procedure. Further, such an application may be pointless if the producer, recorder or broadcaster is located outside the state. For this reason, performers are better advised to ensure that they have adequate contracts, rather than rely on the Act.
If copyright legislation is to successfully reduce piracy, further consideration is required as to what measures should be put in place to make the enforcement of copyright protection both effective and appropriate. Separate specialist tribunals or enforcement agencies, other than courts, may be required. Further, a register of some kind would improve the effectiveness of the Act. Although expensive to administer, a register would be sufficiently 'localised' to protect local groups, artists and performers, and yet perhaps sufficiently 'remote' so as to compel the bigger players to make the necessary effort to adhere to registration requirements if they want to avoid piracy. Certainly registers will only be effective if they are accurately maintained and accessible to the public and this is likely to raise significant challenges in Vanuatu.
If copyright legislation is to protect indigenous cultural property, much more needs to be done. There must be a coordinated effort by the Tourist Association, the Trade and Industry Department, the Department of Customs and Excise, and other key stakeholders, including the National Council of Chiefs and the National Cultural Centre, to arrive at a system which gives the legislation practical effect. Further, visitors to the country must be made aware of the value attributed to cultural, musical and artistic property. This could involve providing undertakings that they will not 'steal' such property.
At a regional level there must be greater cooperation between Pacific Island states so as to address concerns raised in relation to events such as the Pacific Arts Festival, which is held at a different a Pacific venue every four years-this year in Palau. A regional model, the Model Law,[11] exists. Sadly regional cooperation has not yet reached the level where this can be implemented.
At the international level, unless Pacific Island states such as Vanuatu have reciprocal agreements with their neighbours, most copyright or other intellectual property legislation, will be ineffective. The Act, while accommodating any such international arrangements (section 39(2)), only applies to citizens or residents of Vanuatu; or to works first published in Vanuatu - irrespective of nationality or residence of the author; or works which, having been published elsewhere, are published within 30 days of that date in Vanuatu; or audiovisual works where the producer's headquarters or residence are in Vanuatu. Given the global market, and particularly the ease with which works can be transmitted electronically, the limitations of the legislation in its present form needs to be addressed. The challenge is that while there are practical jurisdictional limitations, illegal copying does not respect geographical boundaries. Further, major discrepancies
in content and the detail of different national legislation, create further problems for international reciprocity.
Although the effectiveness of the Act has not yet been tested, one of the major difficulties is that it seeks to achieve two, sometimes competing, objectives: protection of indigenous culture within the formal legal systems while also protecting the most modem forms of technological Innovation in copying. The latter allows Vanuatu to be a global participant in the commercial exploitation of intellectual property but sometimes competes with the former. Given the brevity of the Act and the lack of enforcement mechanisms it is questionable to what extent either or both of these aims can be achieved.
SUE FARRAN teaches law at the University of the South Pacific, Vanuatu.
© 2004 Sue Farran
[1] Trade-Related Aspects of Intellectual Property Rights, Annex 1 C of the Marrakesh Agreement Establishing the World Trade Organisation signed in Marrakesh, Morocco, on 15 April 1994 Came into effect 1 January 1995
[2] 'Intellectual Property Needs and Expectations of Traditional Knowledge Holders' (2001), World Intellectual Property Orgamsation ('WI PO') Report on Fact Finding Missions on Intellectual Property
and Traditional Knowledge (1998-1999), Geneva, Part 1 at 33
[3] For example, the Copyright Act 1956 (United Kingdom) s 1 states citizenship or residence requirements of ‘protected persons’
[4] This was formulated as a result of a regional symposium in New Caledonia in 1999. The Model Law was reviewed and finalised at a meeting, jointly organised by the South Pacific Commission, Pacific Island Forum Secretariat and UNESCO, before being endorsed by the First Conference of Ministers of Culture of the Pacific Region at SPC in 2002
[5] Sainimili Lewa ‘Fiji Copyright Abuse Increase Causes Worry' Fiji Times (Fiji) 11 April 2001 <http //archives.pireport.org/archive/2001/april/04%2D12%2D18.htm> at 1 0 June 2004
[6] 'Politicians Hold Key to Rescuing Cook Islands’ Culture', Cook Islands News (Cook Islands), 21 August 2001 <http //archivespireport.org/archive/2001/august/08%2D24%2D19.htm> at 10 June 2004
[7] Phil-Peers Yombon 'PNG needs Copyright law says Attorney Lomai', The National (Papua New Guinea) 11 January 1999 <http //archivespireport.org/archive/1999/January/01%2D12%2D17.html> at 1 0 June 2004
[8] For example, Kabushika Kaisha Sony Computer Entertainment v Stevens [2003] FCAFC 157
[9] Land-diving is a ritual act from Pentecost Island in which young men leap from tall wooden towers with their feet bound by a length of vine to celebrate the yam harvest. The case arose because a renegade group had tried to 'export' the jump from its usual place of performance in order to make money out of it from tourists. The Western imitation is 'bungee jumping'
[10] ‘Fiji TV Pays Out F$50,000 for Artists' Fiji Times (Fiji) 28 February 2002 <http://archivespireport.org/archive/2002/march/03%2D01%2D20.htm> at 10 June 2004
[11] Above, n 4.
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