2000] Indigenous Intellectual and Cultural Property



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2000] Indigenous Intellectual and Cultural Property

Ascertaining the Nature of Indigenous Intellectual and Cultural Property and Traditional Knowledge & the Search for Legal Options in Regulating Access in Papua New Guinea.
Lawrence Kalinoe1
We the people of Papua New Guinea, united in one nation, pay homage to the memory of our ancestors, the source of our strength and origin of our combined heritage, acknowledge the worthy customs and traditional wisdom of our people which come down to us from generation to generation, pledge ourselves to guard and pass onto those who come after us, our noble traditions….” (Preamble to the Papua New Guinea Constitution).

Introduction


Papua New Guinea is now at the crucial stage of introducing comprehensive intellectual property laws. The impetus for this comes from its various international law obligations, particularly when it acceded to the WTO and signed TRIPS in June 1996 and subsequently became a signatory to WIPO the following, 1997. Earlier on in 1993, Papua New Guinea also ratified the 1992 Convention on Biological Diversity (CBD) that amongst other things, calls for the recognition and preservation of the role of indigenous communities in the creation, maintenance and utilisation of their bio diversity, indigenous knowledge and technologies for their survival and sustainability, particularly in the face of technological advancement and bio prospecting in plant (and human) genetics (Strathern 1999: 183). This is also now a significant factor since it introduces the indigenous cultural property and traditional knowledge dimensions into the debate and, in many ways now features prominently amongst the range of factors to be considered in the eventual promulgation of comprehensive IPR laws.

Apart from these international law obligations, within Papua New Guinea, there were concerns raised from around 1996, that certain aspects of traditional cultures, particularly, traditional songs, music, dances, and chants were increasingly used without proper authorisation and outside of their traditional contexts, and this was seen by many Papua New Guineans to be unacceptable. For example, the former Chief Ombudsman of Papua New Guinea (and a Mekeo Chief himself), Sir Charles Maino, is reported in the Post Courier of 6 November, 1997 (at p.11) saying this:

“In many ways, our traditional music and dances are unique. They must be recognised and accepted as such, encouraged and promoted, and above all must be protected. …. I must admit that introducing traditional music and dances into modern music using modern instruments can become a mockery, and therefore meaningless.”

Sir Charles, then called on the Government to take immediate steps to protect traditional music and dance by legislating “to ensure that the traditional music and dances belonging to a certain ethnic group are protected for their purposes.” No doubt, it is public comments like this that have prompted the Papua New Guinea National Cultural Commission (NCC) to develop a national cultural policy to consider regulating the access and use of cultural material, including traditional songs and dances. In a Cultural Policy Seminar held in Port Moresby from 22 to 24 October 1997, the NCC made it clear that, as part of the overall national cultural policy that it was working on, it advocated for some form of IPR laws, particularly based on existing copy right law models, to deal with the kind of problem that Sir Charles was referring to.



Now, before we go on further, I would like to suggest that we pause here and consider what exactly we must legislate over. That is first, we must understand the exact nature of the material (is it cultural property?, is it intellectual property?, is it traditional knowledge?, is it tangible material or intangible property etc.,) that we are intending to legislate over (in the epistemological sense) and be clear of the purpose and aim of the legislation. Therefore some of the pertinent questions to ask, I suggest, are: what is our understanding of indigenous cultural and intellectual property; what are the foreseeable consequences of introducing an IPR regime (such as copy right in particular) for the indigenous cultural and intellectual material (which we can call “property” for the time being) that amongst other aims, we are trying to protect from improper use: what are the possible foreseeable consequences and effect on the societies or social grouping which have rights over these material; are these possible effects desirable; if not, then what are the other options available. Only then, we can press ahead with confidence. These are some of the core issues this paper addresses.

The Inter Generational Aspect of Indigenous Cultural & Intellectual Property


Now before I get on with the issues raised above in my introduction, let me make the following, rather axiomatic but yet essential point. It is this. In most indigenous communities, particularly in Papua New Guinea, in a rather curious way, the past is always ever present, and by comparison with non-indigenous societies, it is more apparent, visible and real because it is ones link with the past that practically gives every thing that one possess in the present. Let me illustrate this. As we all know, land (that is, customary land) is the bases of life for the vast majority of our people; it is the land that gives them what they have; feeds them and sustains them, both physically and spiritually. The “root title” to this land is genealogy, followed by various relationships, such as ones relation to a mythical ancestor that perhaps first walked or worked the land, mountain, valley, the forest, or canoed down the river, lake or sailed the seas. This evidence of course stretches many generations back, right through to the origin of man in the particular area concerned intertwining with mythology and cosmology. Indeed at customary land tenure law in Papua New Guinea now, a group’s ownership of the customary land hinges on the group’s ability to know their genealogy, by remembering and naming their respective ancestors, both mythical and real and the furthest that one goes back in the generations, the more stronger ones “ownership” claims become. In customary land dispute cases, the courts in Papua New Guinea and Australia call this “traditional evidence” (see Re Fishermen Island Case [1979] PNGLR 202). In customary land dispute cases, the group that fails in knowing and reciting its genealogy is bound to loose ownership or land use rights and hence, livelihood on that land, mountain, valley, river, lake or sea. That’s how real and serious it is. It is the link with the past generation that sustains the present and will continue to sustain and enhance the future generations to come. The future generation will be at great risk if it does not know the previous and therefore the present generation is duty bound to ensure that the future knows its genealogy and all other related customs and traditions. And this will continue to be so, well into the 21ndst century, until and unless the current customary land tenure system in Papua New Guinea is changed or superseded by some other system.

Similarly, indigenous cultural and intellectual material is like that. Particularly, secret / sacred cultural material and knowledge, some of the material that we are trying to legislate over to offer protection from improper use or generally regulate its access. The general value in these material (including knowledge of course) is that they act like a mirror of the past and a guiding light for the present, by which the present life is lived out, where amongst other things, it sets out the norms in society and the rules by which people have to live by, peacefully and harmoniously, and propagate themselves. Therefore, without these material (and knowledge), people will be living void and empty lives and a bleak feature to face: it “is a testimony of the past without which the present would have no future” (Kamal Puri 1997:5). This is the reason why the framers of the Papua New Guinea Constitution, intentionally declared in the preamble to the Constitution, and remind all Papua New Guineans to make it their business, to pass our worthy customs and traditions “from generation to generation”, and particularly for the present generation to pledge “to guard and pass onto those who come after us” our noble traditions.

Of course indigenous cultural and intellectual material performs significant social functions too in contemporary indigenous communities. Although Professor Kamal Puri is particularly speaking with reference to the value of folklore (indigenous cultural and intellectual property) amongst the Australian Aborigines, in my view, what he says is of equal significance to our indigenous communities in Papua New Guinea. I quote:

“For Aboriginal people, folklore performs several important social functions. It helps them to release cultural tensions and ambivalence, and it provides amusement and education. It is a sort of ‘social cement’ that exists outside the formal or official structures. It strengthens social cohesiveness, raises the quality of life and assists in the development and articulation of cultural identity. Aboriginal people use folklore to reflect the past and make improvements for their future. Folklore gives them a chance of self-expression through music, song, dance, speech, and many other avenues. Such cultural manifestations create an invisible bond among individuals and groups and forge social and spiritual contact” (1997: 6).

The formulation and eventual enactment of standard IPR laws for Papua New Guinea is neither difficult nor problematic. What is difficult and problematic is how to accommodate and /or deal with indigenous cultural and intellectual property, which previously were commonly known as folklore (or expressions of folklore for indigenous artistic and literary works), and more recently, traditional knowledge. Going by the reaction from several provincial seminars held by the NCC in Papua New Guinea, the main concern amongst Papua New Guineans appears to be how best to regulate the access to and use of indigenous cultural and intellectual (property) material, rather than say copy right in literary or published works like books and cassettes etc, patents and trade marks. Indigenous Papua New Guineans want to pass laws to first protect the use of their cultural and intellectual (property) material and if there is to be any economic gains made out from the use of these “material”, they of course want to be adequately compensated too.

Unfortunately however, it is not that easy to simply pass laws to grant these indigenous Papua New Guineans, their wishes. This is because there are so many other issues, which must be carefully looked at first, before the laws are enacted. I have raised some of these issues in the form of the questions that I have raised above. I reiterate again that we must understand these issues before we can confidently move on and pass the desired laws. In this regard, I would like to think that this colloquium and PTC itself, can contribute towards our understanding and appreciation of these issues.

Let me now raise, mainly for discussion purposes, some of the conceptual issues, or rather difficulties, as they appear to me. The first issues of concern is that although the intangible material in indigenous intellectual and cultural “property” that we are concerned about appears, at first glance to be intellectual property in the conventional sense, when one takes a closer look, the “intellectual property” aspect of it, kind of diminishes, but instead radiates as a special kind of “property”, not in the sense of being “owned”, but as “belonging to” a given social group. The “property” aspect of this material, by common law standards, is abnormal because most of the “property” that fall under this category are inalienable. (Some perhaps, are). No one person or generation, has any right, by choice, to alienate this variant of “property”. It subsists and survives the group and can only be alienated with the demise of the social group. It is heritage, rather than property. I will pursue this point latter.

Let me move on to mention the second issue of concern. Following on from the first issue, since these variants of property are “heritage” and therefore inhere in the social group concerned, these material are, rather than being “owned”, held in trust by the current generation, for the beneficial use of the all, the current and the future members of the social group. This therefore necessarily imports concepts of fiduciary obligations to the situation, and this must also be taken into consideration. The current generation must not push for and act in their own interest; they are required to act in the interest of all generations, the future and the past. One may be wondering about the relevance and extent of the interest of the past generation, since they are gone. Well as we have said earlier, the past is always ever present in many of these indigenous societies, mainly through the material or knowledge, that we have just called “heritage”. Really, it is in the best interest of the present generation so as not to misuse the heritage material (including knowledge), because if they do, that will be at their own peril. Take for example my self. Although I have, rather by occurrence of circumstances, than by choice, become a cosmopolitan Manambu, I am very cautious in my approach to Manambu “heritage” or my own clan “heritage”, particularly the ownership of names, the yam cult and the associated harvest and planting ceremonies, and the flute cults and the associated ceremony. This is out of fear that if I misuse or debase any aspects of these heritage material, I will be bringing sickness and misfortune to myself and my wife and children. And in my childhood days growing up in the village (Avatip), I have heard and seen misfortunes attributed to improper use of heritage material and now I have no reason to doubt that it might not happen to me if I am personally involved in the debasement or mutilation of these material. That is why personally to me, the past is always ever present in a real way.

Thirdly, we must also look at how these heritage materials were managed in our traditional societies, and by invoking customary law, build upon our traditional systems and strengthen the system. By saying this, I am of course declaring my faith in the potential and ability of customary law, particularly in Papua New Guinea, to put in place a suitable regime in dealing with regulating the use and access, and at the same time offering protection, to heritage material, particularly at the provincial and national level. Now, if customary law is the bases of customary land tenure now in Papua New Guinea, why shouldn’t customary law be relied upon to regulate heritage material (indigenous intellectual and cultural property)?

The remaining (fourth) issue that I want us to consider is what appears to me to be two sets of different objectives in the debate on the regulation of indigenous intellectual and cultural property rights, not only in Papua New Guinea, but generally in the world. These opposing objectives consists of, on the one hand, protection and preservation of traditional culture, and on the other, creating an opportunity for indigenous people to obtain economic benefits, by introducing an IPR regime. Can a conventional IPR regime offer the kind of protection for cultural protection? Should we separate these two issues and deal with them separately under separate legislation? My views are given at Part II of this paper.

I would now like us to consider some of the issues that I have raised above in Part I of this paper talk before we go onto discuss some of the possible legal options to regulate the access to and use of indigenous intellectual and cultural property and/ or traditional knowledge.



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