Developing National Legislation based on the Pacific Model Law 2002 “Empowering Local Communities: Protection of Indigenous Rights” Knowledge Economy Fostering Creative Industries International Seminar 3 November 2006 Anne Haira, Senior Solicitor Maori Legal Services Group, Kensington Swan

Overview Objective: Explain how the Pacific Model Law attempts to empower local communities and protect Indigenous rights Structure:Part I: Background Part II: Policy framework Part III: Discussion of key elements of Pacific Model Law relating to empowering local communities and protecting traditional communities rights

Part I: Background

Development of the Pacific Model Law Secretariat of the Pacific Community (SPC) Legal Protection Project initiated in 1997 following request by the Council of Pacific Arts Council of Pacific Arts comprises 27 Pacific Island countries and territories (PICT’s) which participate in the Festival of Pacific Arts Objective of project is to promote legislation in PICT’s for the protection of traditional knowledge and expressions of culture Several meetings of legal experts held to develop policies, principles and drafting Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture endorsed by the Regional Meeting of Ministers of Culture in 2002

Approach A tool for PICT’s that have determined that new, sui generis legislation necessary Only one approach; there are, of course, others IP-based sui generis system which creates new IP, or IP-like rights (based on legal doctrines similar to copyright and related rights) Designed with the circumstances of the Pacific in mind, expected to form the basis of a harmonised regional legal framework Only a high level framework to guide the development of national legislation - countries need to progress through the standard policy development process to ‘flesh out’ matters of detail Uses a combination of legal forms of protection – exclusive property rights, moral rights, criminal offences Only covers protection at the IP interface, not protection generally and is distinguishable from the preservation of cultural heritage

Part II: Policy Framework

Policy Objective Four components: –to protect the rights of traditional owners in their TKEC’s –to permit tradition-based creativity and innovation, including commercialisation –to ensure that the use of TKEC’s (in terms of tradition-based creativity and innovation) takes place with the prior informed consent of the traditional owners; –to ensure the sharing of benefits derived from the use of TKEC’s with the traditional owners “

Policy Principles Recognise that traditional cultures comprise frameworks of creativity and innovation that benefit traditional communities, and all humanity Recognise that traditional communities are the owners, right holders and custodians of traditional knowledge and expressions of culture and the primary decision-makers regarding their use Respect and give effect to the right of traditional communities to control access to their TKEC’s, especially those of particular cultural or spiritual significance, such as sacred-secret TKEC’s Ensure measures and procedures for the protection of TKEC’s are fair and equitable, accessible, transparent and not burdensome for holders of TK, whilst safeguarding legitimate third party interests and the interests of the general public Recognise that the benefits of protection should accrue to traditional communities rather than individuals while individual rights (including conventional IPR’s) for innovators or creators of original works would be able to be recognised in other systems

Policy Principles cont. Encourage the use of customary laws and systems as far as possible and recognise that communities would always be entitled to rely on these against unwanted access Recognise that the continued uses, exchange, transmission and development of TKEC’s within the customary context by the relevant traditional community should not be restricted or interfered with Recognise that the State should have a role in protection including providing assistance in the management and enforcement of rights Strike an appropriate balance between the rights and interests of traditional communities, users and the broader public (for example, the protection of TKEC’s, on the one hand, and artistic and intellectual freedom, promotion of cultural diversity, the stimulation of individual creativity, and freedom of expression, on the other Recognise that special protection should be complementary to any applicable conventional IP protection

Part III: Key Elements

Key Questions to be Considered What is the subject matter of protection? What is the criteria for protection? Who are the beneficiaries of protection? What is the scope of protection? What are the exceptions and limitations regarding rights? How will rights be managed? What is the term of protection? What are the formalities for protection? What are the legal proceedings for taking actions? How will rights be enforced? What processes can be used for dispute resolution? What is the relationship with intellectual property protection? How will international and regional protection be addressed? Focus for this presentation

Subject Matter of Protection Covers traditional knowledge and expressions of culture – expressions are considered inseparable from the underpinning TK Examples of expressions of culture include: –verbal expressions such as names, stories, chants, epics, legends, musical expressions such as songs and instrumental music; –expressions by actions such as dances, ceremonies, and other performances –tangible expressions such as productions of art, in particular, drawings, designs, paintings carvings, sculptures, pottery, woodwork, jewellery, baskets, textiles, carpets, costumes; handicrafts; musical instruments; and architectural forms Different layers of treatment: stronger protection for sacred-secret material TKEC’s protected regardless of form or mode (tangible and intangible)

Criteria for Protection Having developed a general description, next step is to formulate a more precise delimitation of those that are eligible for protection under the legislation – in an IP-based system, not all TKEC’s could conceivably be the subject of protection Laws typically achieve this by stipulating the criteria for protection (eg. originality in copyright, novelty in patents) Not prescribed in Pacific Model Law, left for PICT’s to determine Policy questions: to be protected, should TKEC’s be required to be: –the result of creative human intellectual activity? –associated with a traditional community? –maintained or used by a traditional community?

Beneficiaries of Protection TKEC’s generally considered to be a collective product of a community (although individuals may have distinct interests within community) Guiding principle of Pacific Model Law is that benefits of protection should accrue to traditional communities rather than individuals although individual rights (including IPR’s) would be able to be recognised Policy questions: –What groups or communities should benefit? –How should the beneficiary groups be described? –Should linkages be required between the beneficiaries and the TKEC’s? –How should the beneficiary group be represented? –Should the State have a beneficiary role? –Can there be two ore more beneficiary groups in particular TKEC’s?

Scope of Protection As an IP-based system, protection is that which IP usually addresses: illicit uses and misappropriations Protection provided by the Pacific Model Law includes: –rights to authorise or prevent the unauthorised reproduction, adaptation and subsequent commercialisation of TEC’s; –appropriation of traditional languages such as Indigenous and traditional words, symbols and other distinctive signs being used by non-community members outside the traditional context; –uses of TEC’s that are insulting, derogatory and/or culturally and spiritually offensive; –failure to acknowledge the traditional source of a tradition ‑ based creation or innovation; and –exploitation of derivative works created by individuals outside of the traditional context.

Scope of Protection cont. Policy questions: –What acts regarding TKEC’s should be regulated? –What acts should be excepted from regulation? –Should any acts in relation to TKEC’s be prohibited? –What moral rights regarding TKEC’s should be established? –How should acts regarding TKEC’s be regulated? Pacific Model Law regulates acts by establishing that particular uses require the prior informed consent (PIC) of traditional owners – referred to as a “traditional cultural right” Pacific Model Law sets out an elaborate process regarding how PIC should be obtained Sacred-secret TKEC’s are excluded from the operation of the legislation on the basis that they cannot be used outside of their customary context

Summary

Pacific Model Law empowers communities and protects their rights in many ways including by: –recognising the value and importance of traditional cultures –recognising they are the owners, right holders and custodians of TKEC’s –respecting their right to control access to their TKEC’s (through PIC) –encouraging the use of customary laws and systems rather than imposing external regimes –providing protection for non-customary uses without restricting or interfering with customary uses –establishing new rights (traditional cultural rights) in TKEC’s