Ascertaining the Nature of Indigenous Intellectual and Cultural Property and Traditional Knowledge and the Search for Legal Options in Regulating Access in Papua New Guinea [2000] MLJ 1; [2000] 27 MLJ 1 (1 January 2000)

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 Kalinoe^[1]

“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^nd 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 21^st 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.

PART I

I want to begin in this part by making reference to Article 29 of the Draft UN Declaration on the Rights of Indigenous Peoples. It declares:

“Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.”

Now one of the questions that immediately come to mind is; what is the exact nature of these “cultural and intellectual property” and what are the patterns of “ownership.” Hence I would like us to consider this first.

The Nature of Indigenous Cultural and Intellectual Property

Without in anyway attempting to be conclusive at all, but rather in a very broad sense, I use the term indigenous cultural and intellectual property to refer to both, tangible and intangible traditional property (which, I have earlier referred to as heritage material) and traditional knowledge. By tangible traditional property, I am referring to works of art such as carvings, totem poles, pottery, paintings, drawings and designs and patterns, traditional instruments such as the Sepik flutes, garamuts (silt gongs) and kundus (hourglass drum), traditional costumes and finery, traditional architectural designs such as the Sepik Haus Tambaran etc. By intangible traditional property, I am referring to the knowledge, idea, patterns, etc., associated with the creation or construction of these tangible cultural property and a wide range of literary and artistic works such as traditional songs and associated music and dance (collectively as tumbuna singsings), chants, proverbs, myths, legends, rituals and the artistic expression of rituals, and knowledge of genealogies (which are so vital to the proof of ownership of customary land and the ownership of names in my own society). With reference to traditional knowledge, I take that to include all practical knowledge pertaining to traditional livelihood, or as we call it in Papua New Guinea, subsistence living. These knowledge is of course broad based and include, agricultural or gardening knowledge, ecological, traditional medicinal, canoe making, house building, food and seeds preservation knowledge etc. By this approach then, indigenous cultural and intellectual property, have three main categories (as indicated in the title to this presentation): tangible traditional cultural property; intangible traditional cultural property (the associated secret/ sacred knowledge); and the practical traditional knowledge and other “unclassified” traditional knowledge from the second category. The main distinguishing factor in these classifications is the route through which or the manner or the process through which the traditional material is acquired. If one acquires it through some set traditional processes such as by undergoing an initiation or by offering sacrifice etc., then it usually will be the case that the material is classified secret / sacred by the respective customary laws. And usually, under these circumstances, the recipient of (or the initiatee) is the bound by existing customs to respect and protect the material so as not to use it outside context and either bring it into disrepute or use it to cause harm to others. If however the traditional material or knowledge is acquired though some other routes as, say for example essential life skills, then that material obviously will not be secret / sacred (“the unclassified material”). The value in making this distinction or dividing these materials into these categories becomes apparent when we look at policy development and focusing the intent of a particular legislation to meet a specific desired effect.

With particular reference to the situation amongst the Australian Aborigines, Professor Kamal Puri, during those days when what we now call indigenous cultural and intellectual property was then known as folklore, after defining Aboriginal folklore as “the body of traditions, observances, customs and beliefs of Aboriginals as expressed in Aboriginal music, dance, craft, sculpture, painting, theatre and literature” and in the widest sense, referring to “the lore of the indigenous people, i.e., their traditions which after passage of time are generally designated as culture” (1993: 134) go onto, in my view usefully present “folklore” into three main categories. He divides them into: (a) verbal expressions; (b) musical expressions; (c) bodily expressions; and (d) tangible expressions. Under category (a) verbal expression include, poems, rhymes, slangs, proverbs, myths, legends, folktales, language, literature, rituals etc. Category (b) musical expressions include, songs and instrumental music of the people and under category (c) bodily expressions that includes drama and dance of the people, games and artistic expressions of rituals. And in category (d) tangible expressions, these includes work of folk art, drawings, paintings, sculpture, pottery, woodwork, metal objects, jewellery, clothing, crafts, costumes, musical instruments and architectural works. The value in engaging in this classification exercise to me is that it helps towards identifying and understanding the various constituent parts or the particular aspects of the material so that in formulating policy and transferring that into legislation, we can then confidently pitch the ambit of the legislation to the particular area of concern, rather than a broad brush approach which becomes difficult to implement and cause all sort of problems with its interpretation as well. Furthermore, in engaging in an exercise like this, we can also be able to identify, and perhaps distinguish those materials, which are secret and sacred and therefore inalienable, and those, which are not. (Hence, my concern about “situated knowledge” (secret/sacred) on the one hand and practical knowledge, on the other). After making the above classifications, Puri then goes onto makes an important point, the spiritual and sacred dimension of these materials:

“Folklore is the religious embodiment of Aboriginal culture. Most Aboriginal designs, music, dance, stories and paintings have their roots in Aboriginal religion. A dance or drama may form part of a sacred ceremony; a rock painting may depict an ancient myth at a sacred site. Resultantly, certain works of folklore are regarded as sacred in their own right or are so closely associated with sacred places that they cannot be shown, nor the themes in them disclosed, except to those few who have been admitted to knowledge of ritual secrets and mysteries by undergoing initiation or other special ceremonies.” (1993: 134 – 135).

This aspect (the religious or the secret / sacred) of indigenous cultural and intellectual material is also a crucial aspect that has to be carefully considered. This aspect also brings into prominence the inter generational aspect of these material; hence making these material to be inalienable from the social group and the community that these material are found in. This aspect of the “material” then militates against it being called “property” and consequently removes the property aspect in it, and makes it “heritage” material.

As stated earlier, indigenous intellectual and cultural property, strictly speaking, is not “owned” by the people who possess it, but are actually in their “possession”, for the benefit of the social group whom they all belong to. Depending on the type of knowledge, the group who is entitled to the beneficial use of that knowledge, may range from the whole community, to a clan or a lineage. The people who possess this knowledge, do not do so by right, but are usually required to undergo a certain process before they can be entrusted with that knowledge. In many instances, this process may be in the form of initiation or the attainment of a certain status, perhaps by offering a sacrifice etc. Once in possession of that knowledge, that person cannot use it any how he (usually) likes. He is usually required to follow set processes and practices, called customs. The knowledge is usually held and exercised for the beneficial use of the social group, as an entity, as well as the individual members of that group. That person does not have any right to deal with that knowledge as and how he pleases. He cannot use it outside context. He cannot alienate it as and how he pleases or when it suits him. Usually, this type of knowledge is inalienable. It is patrimonial heritage. He is a mere custodian of the stuff. It belongs to those before, those now with him, and those who will come after him. This is why these materials cannot be properly regarded as property. Professor Michael Blakeney (although is speaking in the context of the Australian Aborigines dream time perspective), articulates this well, when he says:

“The propertization of traditional knowledge implies, rights such as authorship, ownership, alienation and exploitation. The intellectual property paradigm also involves the incentivization of creativity. If the beliefs and practices of Australian Indigenous Peoples are any guide, authorship may reside in pre-human creator ancestors, such as the Wandjina of the Kimberley region. Authorship, is replaced by a concept of interpretation through initiation. Ownership yields to a concept of custodianship of dreamings, or legends. Alienation, is contradicted by the concept immutable communal property. Exploitation is subject to cultural restraints and taboos. Incentivization has also yield to concerns about spiritual adulteration.” (1999(a): 2).

Hence, indigenous cultural and intellectual property is not the property of the person that possesses it. Its ownership is really in the social group: the clan, the lineage etc. It is rather like customary land, where the land is held by the clan or lineage and the members only use the land from the clan or lineage. It is like customary water use rights too, where the clan or lineage has proprietary rights over it, and the members of the clan or lineage so only exercise use rights only. So what am I trying to say: it appears that the “property” in indigenous cultural and intellectual material, is not really “property” in the conventional sense. It is rather heritage, that has all other dimensions attached to it: practical and spiritual. The people who possess it are not owners but guardians. The owners are really those who stand behind them, with them and those yet to come. These materials inhere to the group. They are heritage. Being heritage, these material are transmitted trough the generations and may only cease to be with the demise of the group it self. And as Dr Erica-Irene Daes, the UN Special Rapporteur and Chairperson of the Working Group on Indigenous Populations says:

“’Heritage’ is every thing that belongs to the distinct identity of a people and which is theirs to share, if they wish, with other peoples. It includes all of those things which contemporary international law regards as the creative production of human thought and craftsmanship, such as songs, music, dances, literature, artworks, scientific research and knowledge. It also includes inheritance from the past and from nature, such as human remains, the natural features of the landscape, the naturally occurring species of plants and animals with which a people has long been connected.” (1997: 3 para 24).

And perhaps more importantly, Dr Daes continues at Paragraph 26 of the same document:

“Indeed, indigenous peoples do not view their heritage in terms of property at all – that is, something which has an owner and is used for the purpose of extracting economic benefits – but in terms of community and individual responsibility. Possessing a song, story or medicinal knowledge carries with it certain responsibilities to show respect to, and maintain a reciprocal relationship with, the human beings, animals, plants and places which the song, story or medicine is connected. For indigenous peoples, heritage is a bundle of relationships, rather than a bundle of economic rights. The “object” has no meaning outside of the relationship, whether it is a physical object such as a sacred site or ceremonial tool, or an intangible such as a song or a story. To sell it is necessarily to bring the relationship to an end.” (1997: 4).

How true.

Having said and endorsed the above quotes, I how ever, and of course with all due respect, beg to differ with Dr Daes, where, at Paragraph 31, she says:

“It is thus also inappropriate to try to subdivide the heritage of indigenous peoples into separate legal categories such as “cultural”, “artistic” or “intellectual”, or into separate elements such as songs, stories, science or sacred sites. This would imply giving different levels of protection to different elements of heritage. All elements of heritage should be managed and protected as a single, interrelated and integrated whole.” (1997: 4).

My disagreement is based purely on the bases of policy formulation and the practicalities in the eventual implementation of policy. First, we must have a particular concern or problem, before we can move to develop appropriate policy targeted at addressing the particular concern, and then, translating that into law. The pressing concern in Papua New Guinea now are more to do with addressing the improper, inappropriate, or unauthorised use of “heritage material” and the emphasis is particularly on protection and preservation; but if however other people (i.e. “outsiders”) are to be allowed access and use of the material, a system of proper authorisation, one that is culturally sensitive, and acceptable to the people who possess the “heritage material”, has to be put in place. In some instances then, a distinction may need to be drawn between “heritage material” that is highly secret and sacred, and therefore “not available for sale” (i.e., not to be commodified), and those which may be made “available for sale” or for general access or exhibition, in accordance with existing customary law. Hence in the formulation of policy, we will have to treat secret / sacred heritage material differently, with an emphasis on protection and preservation, and the other category of heritage material, with a different emphasis: one of regulating proper authorisation for access with adequate compensation.

PART II

In this part, I want to conducts a search for legal options: first, for those that are available in Papua New Guinea; and secondly, for those not as yet available, but which may very well be developed, and best utilised to address indigenous cultural and intellectual property matters, (or simply heritage material) rights over traditional knowledge, in Papua New Guinea. In other words, this is the beginning of the search for a conceptually suitable, workable, and a morally acceptable model.

It appears that the search for a suitable model is proving to be a difficult one, and with due respect not only in Papua New Guinea, but also internationally. I want to suggest that this may be in part, attributed to the apparent confusion or uneasiness, for want of a better description, between issues of economic exploitation of indigenous intellectual property or traditional knowledge on the one hand, and on the other, those concerns and goals of the preservation of indigenous culture and related traditional knowledge. As a result of this state of confusion, we are misled into thinking that these matters can be comfortably housed together: thus misdirecting our efforts and only to realise, time and again that the search (for a suitable model) is becoming difficult, to the point of being elusive.

Preservation of Indigenous Culture & Indigenous Intellectual Property Rights: Twin Objectives

I would like to suggest that the object of preservation of indigenous culture and traditional knowledge, on the one hand, and on the other, the promulgation of an intellectual property rights regime for indigenous intellectual property rights and or traditional knowledge, are twin objectives: separate but related. These twin objectives can very well be likened to un-identical twins; where, although being of the same parentage and living in the same house, they look different; act differently; and end up pursuing different paths: but always acknowledging that they come from the same household. The confusion is not in their appearance, but their common origin.

Until very recently, I myself have been confused as to how best to deal with these twins. May I venture into suggest that, I was perhaps not alone in this state of confusion. There were others with me, both in Papua New Guinea and abroad. In Papua New Guinea, I was in the company of notables, like a knight of the realm, the former Chief Ombudsman, Sir Charles Maino and the hierarchy of the National Cultural Commission (NCC) of Papua New Guinea. For instance, Sir Charles is reported to have said in the Post Courier of 6 November 1997 at p. 11 that “... our traditional music and dances are unique. They must be recognised and accepted as such, encouraged and promoted, and above all must be protected” and went onto call on the Government to enact some form of copy right legislation “to ensure that traditional music and dances belonging to a certain ethnic group are protected for their purposes.” Similarly, in a National Cultural Policy seminar held in Port Moresby from 22^nd – 24^th October 1997, the NCC also advocated for some form of IPR laws, particularly based on existing copy right models to be enacted to deal with the problem of inappropriate or improper use of indigenous cultural material: thus calling on IPR to address what is essentially an issue of the preservation of traditional culture!

This state of confusion, or rather uneasiness, for want of a better expression, appears to exist in the debate internationally too. The following quote from Tom Greaves in the introduction to Intellectual Property Rights for Indigenous Peoples: A Sourcebook (1994:ix) reflects this:

“... intellectual property rights consist of efforts to assert access to, and control over, cultural knowledge and to things produced through its application. The most urgent reason to establish that control is to preserve meaning and due honour for elements of cultural knowledge and to insure that these traditional universes, and their peoples, maintain their vitality. Subsidiary intellectual property rights goals are to manage the degree and processes by which parts of that cultural knowledge are shared with outsiders and, in some instances, to be justly compensated for it.”

I find the un-identical twins (of IPR and cultural preservation) appearing and disappearing in this same statement where IPR is asked to take care of cultural preservation.

The debate in Australia is also fraught with this same problem. For example, the combined Ministers for Justices, Aboriginal and Torres Strait Islander Affairs, Communications and the Arts produced report: Stopping the Riff-Offs – Intellectual Property Protection for Aboriginal and Torres Strait Islanders (Canberra: AGPS, 1994) strikingly reflects this where IPR is advocated to stop the, what they refer to as the plundering of traditional knowledge and culture. Similarly, Terri Janke, herself an Indigenous Australian and a leading figure in the debate in Australasia, also appears to be caught up in this maze: where in response to the question that she poses; “why protect folklore?” (having earlier defined folklore to bear the same meaning as indigenous intellectual and cultural property); responds thus:

“... Indigenous Cultural and Intellectual property remains an integral part of Indigenous cultural life and identity.

....

Indigenous Cultural and Intellectual Property is exposed to the threat [of the influence of modern society such as tourism, mass media, new technologies and globalisation]. A large amount of indigenous arts and cultural expression which was primarily practised and produced as part of strengthening and maintaining of Indigenous cultural heritage and identity is now commercially driven largely by the tourist industry. Aboriginal designs and motifs are reproduced on a wide range of items such as tee towels, wine bottles and tee shirts. While it is concern that much of the profit from the sale of Indigenous arts and cultural products does not accrue to indigenous people – the owners of these cultures – it is much more of a concern that there are many practices that undermine Indigenous cultures.”(Janke 1997: 110).

I want to suggest that perhaps the endeavour in pursuing an intellectual property rights regime for indigenous intellectual property or traditional knowledge, has to be approached separately, or if not, with full cognizance of the differences, to the other closely related and equally important task of the wholesome preservation of indigenous cultural property (the heritage material), including related aspects of traditional knowledge. The reason for this is obvious: the drive towards intellectual property rights is to obtain monopolistic economic rights over a finite period of time with the use of indigenous intellectual property and or traditional knowledge. By its very nature, IPR will bring into the public domain and commodify traditional knowledge and its creations or forms (with temporary protection in the creations only by bestowal of monopoly of use) with the aim of encouraging creativity and hence, similar inventions or products. Consequently, if similar products are put out by other people out of the idea or inspiration from existing ( i.e., in the public domain) indigenous cultural property, one cannot complain: that is fair game by the laws of IPR.

The underlying concerns for the preservation of indigenous culture and related traditional knowledge are not exactly the same. They differ in many regards: both conceptually and morally and rationally. The “Resolutions and Recommendations of the UNESCO Seminar” that I attended, held in February 1999 in Noumea, New Caledonia, I submit, succinctly state the rationale, in a question and answer format. I quote:

1. What are we protecting?
   

The tangible and intangible cultural heritage of indigenous peoples and their descendants.

2. Why do we want to protect it?
   

1. Because much of our cultural heritage does not belong to the present generation. It has been inherited from past generations and our role is to ensure it is handed down intact to future generations.
2. Because it forms the basis of indigenous peoples’ and Pacific states’ livelihoods and well being, including social, economic and political well-being.
   

100. Who are we protecting from?
     

From those who want to wrongfully use indigenous cultural heritage for their own gain and without regard for indigenous people’s rights and values.

4. What are the best mechanisms?
   

Due to the complex nature of customary laws for ownership, access and transmission of cultural heritage, the most appropriate and comprehensive protection mechanisms should be a combination of various types of rights and processes, which would include, but not be limited to:

• legal mechanisms such as cultural heritage laws & intellectual property laws;
• non-legal mechanisms such as: national cultural heritage policies; codes of

ethics; research protocols; and informed consent procedures.” (SPC/ UNESCO

Symposium 1999:121)

Perhaps what I am trying to say in all these is that, first of all, the search for options in regulating the access and use of Indigenous intellectual and cultural property, and traditional knowledge, must appreciate that there are differences between the, what I have called, the un-identical twins” of indigenous intellectual property rights and the preservation of indigenous culture and related traditional knowledge. In our search for an appropriate model, we must take these differences into account, so that we do not find ourselves in an incongruous position, both conceptually, morally and logically.

The Survey of Existing Legal Options

I want to begin the search by looking at the existing laws; to see how best they can be utilised to: first, protect and preserve indigenous culture and related traditional knowledge, and secondly, the notion of intellectual property rights in these indigenous intellectual property or traditional knowledge. I will continue the search in the next part that follows, by being purely prospective and prospect for what ever new options, if any, either pure or hybrid, which may be found and used.

1. Preservation of culture

There appears to be a nexus between the issue of preservation of culture and IPR as a mechanism to preserve culture, to the extend that some seem to find an ally in IPR as a means of defending and conserving cultural bases for Indigenous Peoples (Greaves 1995: 4). The question to ask however is: is the nexus real and helpful or neither real nor helpful? Nevertheless, a traditional (as in indigenous) cultural preservation regime is necessary on its own terms to facilitate its continuity and / or reinvigoration and legitimacy, either of the continuity of contemporary traditional culture or the reconstruction of traditional culture as a way of claiming or re-claming lost heritage (in the sense Weiner 1999: 193 – 210 speaks of peri-urban Aborigines). Further more, the conservation and preservation of a cultural base is necessary as a basis for the survival of traditional / indigenous societies, hence the call under Article 8 of the CBD for national cultural preservation laws to maintain the “knowledge and practises” of these communities, particularly from the bio diversity conservation angle.

For purposes of the preservation of culture, the starting point in Papua New Guinea now has to be the National Cultural Property (Preservation) Act. The purpose of this legislation is to establish a mechanism for the preservation and protection of objects of cultural and or historical significance to the country, not individual Papua New Guineans or sections of indigenous Papua New Guinean communities. Generally, it empowers State institutions such as the National Museum or the National Cultural Commission to acquire, not intangible, but tangible cultural material for purposes of preservation and conservation. Particularly regarding immovable cultural material, the legislation empowers the appropriate State institution, as mentioned above, to proclaim such cultural material as national cultural property, and making that material subject to the protection and preservation regime under the Act.

The Act then uses criminal sanctions to oversee the enforcement process. Generally, under Part V of the Act, trade in cultural material, which has been declared as “national cultural property”, is severely restricted. There is however no restriction on those cultural material which have not been declared “national cultural property”. Of course this means that a very large body of indigenous cultural property and related traditional knowledge remain unregulated by statute law, and therefore under customary law.

The National Cultural Commission, a statutory body created under the National Cultural Commission Act 1994, is also tasked to play a leading role in the protection, preservation and promotion of the various and diverse traditional cultures of Papua New Guinea, no doubt to give effect to the call made in the Preamble to the national Constitution as quoted in the opening paragraph to this article. This is also the angle from which the NCC is coming from, in the national debate on the search for suitable legislation for the protection and preservation of tangible and intangible (intellectual) cultural property. I want to suggest that the angle from which the NCC is coming from is actually a different one to that of IPR (particularly copyright) because:

“There is ... a significant difference in the scope of claims that can be made on behalf of a culture, and those that can be made on behalf of an individual author. Copyright laws enable individual authors not only to claim possession of their original works as discrete objects, but also to claim possession and control over any and all reproductions of these works, or any substantial parts thereof, in any medium. Cultural property laws, however, enable proprietary claims to be made only to original objects or authentic artifacts.” (Coombs 1993:264 footnotes omitted, emphasis added).

It is my contention that the debate and the search for a suitable regulatory regime for indigenous cultural and intellectual property and traditional knowledge in Papua New Guinea, and perhaps the world, can be significantly enhanced, if we separate and steam line the issues and the accompanying language, which are on the one hand regime for the preservation of culture, and on the other, IPR: those which I have earlier referred to as the un-identical twins. Hence in Papua New Guinea, the NCC should be encouraged to focus its attention on the issues of preservation of culture, but be vigilant on whatever dangers that IPR may pose for preservation of culture. The Australian Aborigines case law in this area, two of which I cite later, show that there is really a cause for concern from the cultural preservation perspective.

2. Customary Law

Customary law in Papua New Guinea has great potential, and perhaps appeal too, particularly given its broad range of coverage and flexibility (in our search for finding a suitable law), not only in the sense of offering protection, but to generally regulate access to and use of indigenous cultural material and related traditional knowledge, which can perhaps be referred to as indigenous intellectual property, for the time being.

In terms of the hierarchy of laws in Papua New Guinea, custom stands third in rank, after constitutional laws and other statutes. It applies as part of the unwritten body of law known as the “underlying law” and is of course subject to all types of statute laws. The “underlying law” is made up of, first customs (of the indigenous peoples of Papua New Guinea) and secondly, the common law of England as it stood on 16 September 1975, being the date of Independence.

Since custom “is not created by the courts but is discovered as a matter of fact and adopted as law” (per Kapi J (now Deputy Chief Justice) in Supreme Court Reference No. 4 of 1980: Re Petition of M. T. Somare [1981] PNGLR 265 at 288): it is imperative that the necessary custom as it exists in a given society concerning the rights over and accessing of that particular indigenous cultural material or related traditional knowledge, has to be pleaded as evidence in court. If the court accepts the evidence, then is applied as law: having the same consequences and effect as any other law of the land. I suppose this is where law and ethnography meets and together, combine to translate custom into law: the outcome being customary law. Ethnographic accounts (of anthropologists) concerning the existence of the particular custom and its attributes, as in how it is practised, are relied upon by the courts, together with current testimonial evidence, mainly for verification purposes, and then when accepted, adopted and applied as law. [For example, Judge Injia in the Miriam Willingal case, relied extensively on the affidavit evidence of John Muke; the Supreme Court in the Michael Somare case as referred to above, relied on the published works of the Margaret Mead amongst the Arapesh in order to verify the existence of a “big men” custom where such “big men” are automatically given rights to speak in important gatherings, usually in Haus Tambarans.] The legislation called the, Customs Recognition Act Chapter 19 (Revised Laws) is essentially there to guide this process for pleading custom as a matter of fact and leaving it to the courts to adopt it as law.

At this juncture, may I therefore suggest that any case studies of customs or customary transactions in or of dealings, either regulating the rights of access or use, etc., of indigenous cultural material and traditional knowledge, generated by this PTC Project, will certainly go a long way in assisting lawyers to pleading custom in courts of Papua New Guinea and as a result, develop the customary law in this particular area of our concern. May I also suggest at this same juncture, that the use of the word “property” rather than “intellectual property” with particular reference to indigenous cultural material and related traditional knowledge, in my view may make the pleading of custom in this area much easier, rather than if one is to try and plead custom with reference to indigenous intellectual property, for the reason that it may be conceptually conflicting and awkward for the courts to handle. For example, If I was to plead Reite custom concerning rights over the ownership of a story or a sprit voice or design (“patuki”), claiming ownership would be “akin to claiming the power of their source” because the “patuki” is usually attributed to its situation or its place of origin rather than to individual creators of it (Leach 2000: 19). Conceptually then, I would be running a flawed argument, if I was to plead intellectual property in the “patuki” because intellectual property concerns individual (including a corporate entity) rights in the “patuki” itself, rather than its source or place of origin. By importing the concept of intellectual property (rather than simply property in traditional knowledge), makes the process of pleading custom over the ownership of “patuki” difficult; both conceptually and logically; or to borrow from Leach: “The ownership of stories (patuki) among Nekgini speakers then, however much it may look like intellectual property, needs contextual qualification.” (2000: 22).

2. Common Law

The common law of England as of the cut-off date of 16 September 1975 applies as part of the “underlying law” of Papua New Guinea, and in my view is worth exploring too in the overall search for existing options. Although the common law is subject to all statute laws, customs, and the circumstantial applicability rule, it is certainly a dominant body of law in Papua New Guinea now, and perhaps will continue for a long time yet. The reason for this “dominance” is simply because, its sources, such as the Halsburys’ Laws of England, all the law reports of England and the text books are readily available, particularly compared with say Papua New Guinea legal material, including those toward establishing customary law.

And in the search for existing legal options, I submit that the common law, particularly through the law of contract and the law of tort called “passing-off”, may offer immediate assistance: either in regulating access to indigenous intellectual and cultural property and the distribution of rights; or in offering some form of protection towards the indigenous cultures and related traditional knowledge.

Let me begin here by looking at the law of contract. The law of contract offers a very attractive option because it does not impose on the parties (of course given all else being equal) but rather leaves it to the parties themselves to decide on what they want through the negotiation process; and when eventually concluded, reduced into a legally enforceable document in the form of a contract, or in what ever for it may be known, be it a “Memorandum of Agreement” or “Access Agreement” et cetera. This of course is already being practised in certain Latin American countries (or Amazonia as known in Anthropology) mainly between pharmaceutical companies and the indigenous peoples (King: 1994 in Greaves ed. and Posey and Dutfield 1996: 39 citing the example of the agreement between Sharman Pharmaceuticals and the Consejo Aguarna/ Huambisa (CAH) of Peru although the agreement has been criticised for being too protracted). In Papua New Guinea we have not utilised this option in relation to the subject matter of discussion, but we have certainly used it in the forestry area concerning timber rights purchase (TRP) agreements over the harvesting of timber on customary land and of course in the mining and petroleum sectors, primarily for compensation: literally all types of compensation.

Undeniably, the contract option has its weakness too: one therefore has to be weary in pursuing this option. In this regard, I find the following caution offered by Posey and Dutfield to be a useful “warning sign”:

“Contracts and other agreements can be useful tools for ensuring that local communities benefit from the commercialization of their knowledge and resources. However those currently in existence are far from satisfactory. Great caution should be exercised by those considering an agreement with an outside institution.” (1996: 74).

The tort of passing-off is the other common law option that has potential, but perhaps not immediately in its present common law form and direct application, but with modifications or adaptations by the courts in Papua New Guinea. When tailored to suit the Papua New Guinea legal system, it can be applied to preserve or to offer some protection over the improper use of reputable Papua New Guinean cultural material and associated traditional knowledge, or even institutions such as the Asaro Mudmen of the Eastern Highland Province which is quite well known in Papua New Guinea. The reason why the tort of passing-off cannot be directly applied in its current or rather existing common law form is that, conceptually this tort is concerned with the protection of business reputation or good will: so that others do not harm another’s business interests. In its current form, passing-off is not concerned with non-business interests. Nonetheless, the basic requirements of the tort of passing-off are now accepted to be as those stated by Lord Oliver in the case of Reckitt & Colman Products Ltd v Borden Inc. [1990] UKHL 12; [1990] 1 All ER 873 that to rely on the tort of passing-off, one (the plaintiff) must be able to establish that: (a) he, she, or even it enjoys some reputation or good-will in the product or goods and services or even the “image” or “its name” concerned; (b) that there has been a misrepresentation by the other person (the defendant) where such misrepresentation is likely to have the effect of or is having the effect of misleading others (the market) to believe that the product, goods or service, or the “image” or “name” concerned are that persons; and (c) that the plaintiff must establish that the defendant’s conduct is likely to cause damage or has indeed caused damage to the plaintiff’s business reputation or good-will.

Under Schedule 2.3 of the Constitution (of Papua New Guinea), the National and the Supreme Courts are required (obligated!) to judicially develop appropriate / suitable underlying law principles by relying on custom and common law if there is a gap in a given area of the law. These courts are encouraged to develop such underlying law either by analogy or modification, particularly of the common law, to suit the Papua New Guinea legal landscape. Now since the tort of passing-off at common law is aimed at protecting business reputation and good-will in a purely economic sense, business reputation and good-will in that sense, cannot be conceptually equated to custom: hence custom cannot apply. And in its current form, the common law of passing-off cannot apply to purely non-business arrangements such as preservation of reputable and significant cultural material not used by indigenous people in business. Since there is no statute law in this area, there is a “gap”.

This “gap” in the law, I submit, can be easily filled by the superior courts of Papua New Guinea, in an appropriate case, by relying on the common law principle of passing-off, viewed in the light of the need to protect non-business reputation over reputable indigenous cultural material forms, and extend the boarders of the tort of passing-off: so that in Papua New Guinea, it can apply to cover or include reputations and good-will over well known items and or institutions of culture and related traditional knowledge. Then Papua New Guinea can have an indigenous principle of underlying law, offering protection, on a case by case basis, to indigenous cultural material and institutions, such as the Asaro Mudmen.

The Search For New Legal Options

Whilst being prospective, the search in this part actually looks at those options which are now being considered in Papua New Guinea, and intellectual property rights (IPR) is the primary focus. So I lets consider IPR first before we consider the others.

1. Intellectual Property Rights

In my view, the nature and essence of IPR are succinctly stated by Torremans and Holyoak, when they say:

“Intellectual property rights are first of all property rights. Secondly, they are property rights in something intangible. And finally, they protect innovations and creations and reward innovative and creative activity.” (1998: 12)

Traditionally in English common law, IPR referred to the copyright protection of authors, and did not include what were then known as industrial property rights, where these include, patents, industrial design and processes, plant variety rights and trademarks. (Cornish 1993:46). This distinction no longer exists. IPR now collectively refer to and include: copy rights; moral rights; trademarks; patents; industrial designs and processes; plant breeders rights; performers rights; (and perhaps knocking on the door, indigenous intellectual property, although I am not too sure about its candidature).

Whilst I have perhaps sounded dismissive over the use of IPR, particularly over its ability to properly regulate the use of indigenous intellectual and cultural property, that however does not mean that we are to abandon IPR at all. To the contrary, the international obligations that Papua New Guinea has entered into make it inevitable that an IPR legislation will be introduced, sooner rather than latter.

IPR may present the opportunity for the fair economic exploitation of indigenous intellectual and cultural property and related traditional knowledge and that option should still be made available to those sections or individuals of the indigenous communities who wish to pursue that end. But as stated earlier, I have reservations over the IPR regime’s capacity to regulate or deal with misuse or unauthorised use of indigenous cultural property and related traditional knowledge: these are matters clearly outside the purview of IPR. The distinction made earlier in Part I, between intangible traditional cultural property (i.e., the secret / sacred heritage material) and the practical traditional knowledge, I suggest, should be utilised, and we can perhaps exempt the secret / sacred material from the general IPR regime, and leaving that to be addressed some other legal mechanism to better deal with it. If we do not take that approach, it is highly likely that we may end up facing the problems or difficulties, that various Australian Aboriginal groups have faced in the cases of Yumbulul v Reserve Bank of Australia [1991] 2 IPR 481 and Milpurrurru and others v Indofurn Pty Ltd [1994] FCA 975; [1995] 30 IPR 209. (Both cases are usefully discussed in Blakeney 1995: 442 – 445. Although the decision in the Milpurrurru case was handed down by von Doussa J on December 13, 1994, it was only reported in 1995). Let us now look at the circumstances (rather than the law) of these two cases and learn some “object lessons” from them.

The facts in Yumbulul v Reserve Bank of Australia (supra) are these. Terry Yumbulul is an Australian Aboriginal artist and is a member of the Galpu Clan in the Northern Territory. He had passed through various levels of tribal initiation and revelatory ceremonies conducted by the Galpu Clan and through that process, acquired the Clan’s various secret / sacred material, including traditional designs and their meanings. Particularly at the last initiation rite that he went through, he was conferred the authority, to create or rather craft, an object called the Morning Star Pole (here after referred to as the Pole). The Pole is a sacred Galpu clan object where the right to craft and paint one is jealously guarded so that it is restricted to those who have properly undergone the various initiation processes and are eventually “authorised”: in the manner in which Yumbulul had done so and had been authorised.

In this instance, the particular design that Yumbullul crafted and painted, depicted a yam leaf symbolising a yam spirit man climbing up the pole, taking with him, the spirit of a deceased person to the Morning Star. The Pole was made out of a cotton wood tree and was surmounted with a lorikeet crown and cockatoo feathers as symbols of the rays of the Morning Star. Expert evidence received by the court established that Morning Star Poles play a central role in Aboriginal ceremonies such as those for honouring the deaths of tribal elders and generally in harmonising relationships amongst clans.

This Pole that Terry Yumbulul carved and painted was licensed and was on permanent public display in the Australian Museum in Sydney. An agent commissioned by the Reserve Bank of Australia obtained authorisation for purposes of copyright from Terry Yumbulul (not the Galpu Clan!) and the Morning Star Pole was then used by the Bank and was printed on a $10 bank note, commemorating the Australian Bi-Centenary. Following the release of the commemorative bank note, Mr. Yumbulul was strongly criticised by his people (the Galpu), arguing that, he or any authorised Pole maker for that matter, were obligated and duty bound to ensure that the Pole that he carved, was not used or reproduced, in manner as would, in their judgement, demean and undermine and hence bring into disrepute, the significance of the Pole and discredit its integrity. In their view, Yumbulul has failed them in this instance, by allowing it to be reproduced on a bank note.

This of course prompted Yumbulul to go to court, asking the court to invalidate the assignment of the copyright arguing that when he gave the authorisation via the agent, he did not really understood what he was doing and therefore the assignment should now be invalidated on the basis of unconscionability. So the primary issue for the court to determine was whether there has been a valid assignment of copyright. The court found that the Pole was an original artistic work by Terry Yumbulul (as opposed to the Galpu Clan who authorised him to carve and paint it) within the meaning of the Copyright Act and therefore decided that when he gave his authorisation, through the agent, for the Bank to re-produce his artistic work, he had validly assigned copyright. In the related case of the same facts, where Yumbulul sued the agent who had obtained copyright from him on behalf of the Central Bank, Yumbulul v Aboriginal Artists Agency [1991] FCA 332; [1991] 21 I.P.R. 481, French J of the Federal Court at Darwin, in dismissing Yumbulul’s case, made the following pertinent, observations (at p. 490): “There was evidence that Mr. Yumbulul came under considerable criticism from within the Aboriginal community for permitting the reproduction of the [design].... And it may... be that Australia’s copyright laws do not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially commercial in origin.”

There are of course a lot of lessons, indeed significant lessons, for us to learn from this case. First, this case exposes, in my view the danger posed by conventional copyright laws for clan (or such other social group) held secret / sacred heritage material, both in its tangible form and in its intangible form (the associated knowledge). As this case has shown, when one of its own member, unilaterally decides to forgo his traditional customary obligations, lured by money of course, the clan is bound to be left in total despair. Clearly, Yumbulul had no right to assign copyright by Galpu Clan customary law (but he of course has under the Copyrights Act). The Morning Star Pole was an inter-generational clan heritage material, belonging to all the members of the Galpu Clan: the present, past and the future. The knowledge to carve the Pole was not his original creative work at, but simply revealed to him through the initiation rites that he had gone through. If we do not want to repeat the Yumbulul situation in Papua New Guinea, we will have to provide specifically so under copyright legislation (or such other IPR statute), that in a situation like this, authorisation must also be obtained from the clan members, and not only from individual artists concerned. We will also have to consider equitable ways of benefit sharing arrangements, for any monetary benefits derived from a situation like this. Otherwise, we might also have to consider whether material like these in the category of the Morning Star Pole should ever be allowed to be used outside their given contexts or settings.

Secondly, the Yumbulul case, in my view bring to the fore, the need to distinguish secret / sacred traditional cultural property and the associated traditional cultural knowledge that goes with the tangible cultural material on the one hand, and on the other, practical traditional knowledge, and those falling under the first category, but not treated as secret / sacred (“unclassified”): the main difference between these two being in the mode of acquisition. For the former is acquired through a set cultural process such as an initiation or by offering sacrifice, whereas the later is literally practical knowledge and therefore is generally acquired as general, and sometimes necessary, life skills. The secret / sacred material can then be regulated under a regime with particular emphasis on protection and preservation of its integrity and continuity whereas the emphasis on the other category can be to regulate access with a view to facilitating economic exploitation: protecting the economic interest of members of the indigenous communities who would, say, want to trade in the use of the “unclassified” traditional knowledge. So, if some sections of our indigenous peoples (communities) wish to, they can be allowed to utilise “unclassified” traditional knowledge and benefit economically, say by asserting copy right over artistic work (carvings of various images etc.,) under IPR laws. The “Sepik carving trade”, like the now popular “Kambot Story Board” or the “Sepik basket trade”, may be cited as a case on point, where through regimes like this, economic rights can be secured, allowing the Sepik people, to utilise their “unclassified” traditional knowledge to trade with the wider Papua New Guinea society, and perhaps the world.

The second Aboriginal case that I want to cite for discussion involves an action for breach of copyright by eight Aboriginal artists but from three different Aboriginal tribes of the central Arnhem Land, whose art work were either based on, inspired by, or depicted traditional Aboriginal legends and imagery: the case of Milpurrurru and Others v Indofurn Pty Ltd and Others (supra). Four of the Aboriginal artists had painted bark paintings based on legends of the peoples of Central Arnhem Land; three, from the Central Australian western dessert painted Papunya style legends; and the eighth, Mrs. Makira, (a lino cut artist) was a member of the Yalgnu Clan. She had painted an imagery of a clan based story of Djanda and the Sacred Waterhole where the story is of Djang’ Kawu, her ancestral creator, and his two sisters, the Wagilag sisters ending their journey from Burralku to Yelangbara. “Her right to use this imagery arose as an incident arising out of her membership of the Yalgnu Clan, the land owner group in the area.”(Blakeney 1995: 443). All these paintings were then reproduced in portfolios of Aboriginal arts, either held by the Australian National Gallery (ANG) or published by the Australian Government Printer for the Australian Information Service (AIS), mainly for purposes of educating the wider Australian community to understand and appreciate Aboriginal art. The ANG and AIS explained in their respective publications containing these art work that these were based on stories of spiritual and sacred significance and the images and symbols were strictly controlled by Aboriginal customary law and it was further “explained that the right to create paintings and other art works depicting creations and dreaming stories and to use pre-existing designs and clan totems resided in the traditional custodians of the stories” (Blakeney 1995: 443 citing Ellinson 1994 whose work the court cited with approval). But since the Australian Copyright Act did not recognise this aspect of Aboriginal customary law, the copyright in all the paintings were found to be with the eight Aboriginal artists, respectively.

In the court action brought by three of the living artists and the Public Trustee on behalf of the estates of the five deceased, against an Australian company that imported carpets which reproduced the artists works on the carpets, and had written on their swing tags, the words: “Proudly designed in Australia by Australian Aborigines - Made in Vietnam”; the Australian Federal Court found that the art works were used without license from the owners of the copyright (the artists, not their clans etc.) and furthermore, found that the statements on their swing tags were false and misleading, hence in breach of the Trade Practices Act. Damages were therefore awarded to the artists concerned.

Should we in Papua New Guinea like to have individual artists who paint from clan based heritage material have copyright over the work that they produce like in the circumstances of this case? What does our customary law say on rights to artistic works depicting clan / group based legends, ancestral stories, motifs, totems etc.? I submit that these are some of the issues and implications that we must work through and come to terms with in our endeavour to promulgate a suitable regulatory regime.

The two cases seen above deal with reproduction of traditional cultural heritage material by individuals, who actually are contemporary artists and are members of the respective clans. Like in the case of Terry Yumbulul, he was authorised at his last clan initiation rite, to carve the Morning Star Pole. One of the reason why he was authorised by his Galpu Clan is that he possessed artistic skills, and was therefore given the authorisation: not for him to appropriate it as his own by owning copyright in it, but to enable and ensure the continuity of the Morning Star Pole tradition; to make him a custodian so that he can the pass that onto the next generation. But if Terry Yumbulul or even Mrs. Makira in the Milpurrurru case, had produced a derivative art work, not a reproduction but a work derived or inspired by the imagery and story behind the Morning Star Pole or the ancestral story of Djanda and the Sacred Waterhole respectively, would this have offended the respective customs and traditions of their peoples? I think it would. And that is one of the main problems with copyright as well. As we know, copyright does not subsist in ideas; and creativity inspired by existing ideas etc. is exactly what copyright aims to encourage, promote and sustain economically. By copyright law, derivative becomes “original” works of the contemporary artist, not the clan or such other social from which the artist “appropriated” the idea or received the inspiration. So take for example the “Kambot Storyboard” a peculiar wood carving that depicts various life stories of the Kambot people, of the Lower Sepik area, can be mass produced by word carvers in a furniture workshops, generating an industry of its own, because what the furniture shop is producing are derivative works, not reproductions. And indeed, there is a furniture workshop in Lae, Morobe Province that is doing exactly this. Majority of the carvers employed in this workshop are Sepik craftsmen and they produce “story boards and religious plaques”, based on designs originally from the Sepik area, including the Kambot area (Stevenson 1999: 25 – 27). Imagine if the Kambot Storyboards were depicting sacred and culturally sensitive stories. No doubt the furniture produced from this furniture workshop would have caused similar problems arising in the Yumbulul and Milpurrurru cases.

If this is going to be the case, then we must also find a way to deal with derivative works, particularly where the cultural material and related knowledge from which the work is inspired from is of sensitive and sacred significance to the clan or such other social group concerned.

With the difficulties posed by the creation of derivative works in mind, let us now turn to the topic of moral rights. The draft IPR legislation that is doing the rounds in Papua New Guinea now, has a part on moral rights. On the face of it, moral rights clauses seem to hold particular appeal and promise in terms of their potential to offer a regulatory regime, particularly to prevent misuse, debasement etc., of indigenous intellectual and cultural property. Professor Kamal Puri, in particular says: “Moral rights are very significant for recognising authorship and preventing debasement, mutilation or destruction of indigenous cultural works...”(1999: 154). Article 6bis of the Berne Convention recognises and accords two types of moral rights: paternity rights, i.e., the right of attribution to and author and creator of copy right work; and, the moral right of integrity giving the author or the creator of copy right work, the right to object to distortions, modifications or derogatory actions over the work. These rights exist independently of the authors’ economic rights and therefore may subsist even after the economic rights have been transferred to some one else.

Moral rights, in particular paternity rights, are however not automatic: they must be asserted by the author and that such assertion must be in writing. (Torremens and Holyoak 1998: 214). Furthermore, moral rights are dependent on a copyright regime: they cannot exist without copyright.

After been through the above, one now begins to get the feeling that “moral rights” after all, may not be so helpful either: although they are non-economic rights, they however must be asserted, and in writing, first, before they can apply. Furthermore, moral rights are aimed at protecting published or literary works; not unpublished indigenous intellectual and cultural property. Therefore, if the moral rights provisions of the draft legislation in Papua New Guinea is to be relied upon (to offer protection for indigenous intellectual and cultural property and related traditional knowledge), the moral rights clauses will have to be expanded to take in unpublished works such as indigenous intellectual and cultural property with a simple registration scheme invented to accommodate this.

2. Sui Generis Legislation

Realising that existing IPR regimes, in particular the Universal Copyright Convention, administered by WIPO were ill suited for indigenous intellectual property, in 1985 the UNESCO/ WIPO Expert Committee came up with Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (The Model Provisions), to generally encourage nation states to enact national legislation to deal with matters of indigenous intellectual property. These concerns culminated in the adoption of the Draft Treaty on the International Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions by the 25^th Session of the UNESCO General Conference in 1989. This international consciousness and drive towards sui generis legislation appears to have weakened off in the last decade or so. Only a handful of African and Latin American countries appear to have enacted national laws based on or along the lines of the Model Provisions (Posey 1996: 86; Abada 1999: 128).

The suggested Model Provisions for a sui generis legislation however do not cover all aspects of indigenous intellectual property, or folklore as the subject was then known. The Model Provisions are “restricted to traditional artistic expressions which have been developed and perpetuated by communities or individuals in the country as the traditional artistic aspirations of that community. Therefore protection does not extend to traditional beliefs or scientific traditions, such as traditional cosmology or to legends, as well as purely practical traditions, such as traditional cosmology or to legends, as well as purely practical traditions if they do not take the form of a traditional artistic form of expression”. (Professor Salah Abada 1999: 128) Perhaps another model can be developed to include the wider matters of indigenous intellectual and cultural property which are not included in the Model Provisions.

Professor Kamal Puri is very optimistic of the sui generis approach, but perhaps not necessarily based on the Model Provisions. He believes “ a sui generis legislation giving indigenous people rights unknown to the common law is the most viable option for the future.”(1999:155). In principle, I concur. However to make the sui generis effective, it requires concerted effort, not only at the national level, but also internationally through multilateral conventions etc., so that there can be reciprocal arrangements between nation states to recognise the new form of intellectual property rights. Without the necessary reciprocal arrangements, the sui generis approach may not mean much.

3. Developments in the International Arena

The initial attempt (1967 Diplomatic Conference of Stockholm) to deal with the concerns of developing countries to give some form of protection to folkloric material, have been premised around copyright law where the thinking then was that copyright was the way to go. Hence the 1967 Diplomatic Conference of Stockholm was convened to revise the Berne Convention and that resulted in the insertion of Article 15(4) where under this clause, unpublished works of unknown authors (referring to indigenous / traditional cultural heritage material) who were citizens of the Convention member states, were to be given copyright protection, where national legislation was to identify a “competent authority” and copyright in the material concerned would then be designated to it. This designated competent authority would then act on behalf of the so-called “unknown authors” and protect their copyrights. Clearly, this approach was oblivious to the peculiar nature of folklore and the role that it plays in the respective indigenous societies: in particular, it did not appreciate the inter-generational nature of it was aiming to protect. It is therefore no wonder that this avenue has not been keenly taken up by any member nation states, developing or developed (Githaiga 1998: 13).

The UNESCO – WIPO sponsored 1976 Tunis Model Laws on Copyright for Developing Countries also pursued copyright as the legal instrument to offer protection to folkloric material by recommending for changes to be made to existing copyright legislation on three main fronts: (1) for the dispensation of time limits on the period of protection; (2) exemption of folkloric material from fixation requirement; and (3) the introduction of moral rights provisions to prevent the debasement and mutilation of such works. Although some countries have experimented with the implementation of the Tunis Model law (see WIPO 1997: 2 – 3), there has not been much success. By this time the incompatibility of copyright was now recognised. This resulted in the 1985 Model Provisions: now with a change in emphasis; from a focus on copyright protection, to protection of the folkloric material itself. The Model Provision, inter alia, advocates the prohibition of: (a) any unauthorised use of the expression of folklore; (b) the misrepresentation of its source; and (c) the willful distortion of folklore, in a manner or context, prejudicial to the interest of the community from which the folkloric material obtains. The Model Provisions also recommends a provision in national laws for international extension of protection based on reciprocity between nation states (rather than by treaty arrangements given the time and effort treaties are brought into force).

Unauthorised use of folkloric material constitutes an offence, punishable by criminal sanctions. For authorization purposes, the Model Provisions recommends for an entity to be identified, either in the form of a “competent authority” or the “community concerned”, avoiding the use of the term “owner” because the Model Provisions “do not deal with the question of ownership of expressions of folklore, since this may be regulated in different ways from one country to another [where] in some countries, expressions of folklore may be regarded as the property of the nation, while in other countries, a sense of ownership of the traditional artistic heritage may have developed in the communities concerned.” (WIPO 1997: 9).

Of course this is a marked improvement from the earlier situation, like that under the Tunis Model. As stated earlier, the inadequacy of the Model Provisions is that its ambit is restricted to “artistic” heritage only – meaning that other thing like traditional belief systems, rituals, traditional cosmology, legends, genealogical knowledge, traditional medicinal knowledge etc., including the knowledge behind sacred artistic expressions, are not covered. (WIPO 1997: 6 – 7; Abada 1999: 128).

Outside of the UNESCO-WIPO front, there are also other international developments, which are pushing for the eventual promulgation of a suitable regime to offer protection for indigenous cultural and intellectual property, and systems of traditional knowledge, all from their respective vintage points. The work of the UN Working Group on Indigenous Populations (chaired by Dr Daes), particularly that which is now in the form of the Draft Declaration on the Rights of Indigenous Peoples, is one and the other is the Convention on Biological Diversity. Apart from these UN Organs led international activities which all lead to the same cause, there are various other regional and international statements and declarations which add their voices towards the same cause in the world debate. The often cited, and perhaps now celebrated Mataatua Declaration in 1993, (Bay of Plenty, New Zealand) followed by the Statement issued by the International Consultation on Intellectual Property Rights and Biodiversity organised by the Co-coordinating Body of Indigenous Peoples of the Amazon Basin (COCIA) (Santa Cruz del la Sierra, Bolivia) 1994 and the Final Statement issued by the South Pacific Regional Consultation on Indigenous Peoples Knowledge and Intellectual Property Rights (Suva, Fiji) 1995, are just examples ( for others see Blakeney 1999 (c) 14 - 22). They all call for concerted effort to be made, at the national and international level, so that we arrive at a suitable regime that will be sensitive to, and recognise the special features of indigenous cultural and intellectual property and traditional knowledge systems. I hope that this paper has raised some of those “special features” to be taken into consideration in Part I. Given the level of activity in the international arena, I suggest that the time is now right to pursue a sui generis approach, as discussed above, where reciprocal arrangements between nation states can be forged, might I add with ease.

Concluding remarks

In order to arrive at a conceptually and practically workable model, first we must recognise the differences in the un-identical twins, and find the different ways to deal with them, for they are indeed different.

With regard to the existing options, I suggest that we have unfairly underestimated the potential of customary law, and to an extent, the common law, in particular, the tort of passing- off. This underestimation has caused us to search for options which, from the distances appear to be appealing, but at close look, become wanting. We really do no have to venture out into foreign territory and try to emulate concepts, which are foreign, where those concepts have their own background, history and purpose. We must first search within. In many ways, we are fortunate that we can learn from experiences from elsewhere, particularly the circumstances set out in the two Australian Aborigines cases of Yumbulul v The Reserve Bank of Australia (supra) and Milpurrurru and Others v Indofurn Pty Ltd and Others (supra). But one thing that is in our favour, by comparison with our Australian neighbours, is that the Papua New Guinea legal recognises and sanctions customary law. We can perhaps do better than the situation of despair that the various Aboriginal community leaders found themselves in.

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^[1] Law School, UPNG and Research Associate, Property, Transactions & Creations (PTC) Project. The paper was initially prepared when the author was in Cambridge as a Research Associate of the PTC project and a Visiting Fellow at Clare Hall in May 2000. The PTC project is a joint Cambridge and Brunel Universities based project supported by an ESRC grant under the leadership of Professor Dame Marilyn Strathern FBA (Cambridge) and Dr Eric Hirsch (Brunel). The paper has benefited from comments from all members of the PTC project: Dame Marilyn Strathern; Dr Eric Hirsch; Dr Karen Sykes; Dr James Leach; Dr Tony Crook; Dr Andy Holding; Dr Mellisa Demen; and Dr Stuart Kirsch.