0.8 Traditional knowledge  (Page 12/24)

Pacific regional framework for the protection of traditional knowledge and expression of culture

The  Pacific Regional Framework for the Protection of Traditional Knowledge and Expression of Culture  was created in 2002 but has not yet been implemented. It was drafted by the  Pacific Islands Forum Secretariat  whose member countries are  Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Republic of Marshal Islands, Samoa, Solomon Islands, Tonga, Tuvalu,  and  Vanuatu . Additionally, the following countries have associate membership:  New Caledonia  and  French Polynesia . Finally,  Tokelau, Wallis and Futuna, the Commonwealth, the Asia Development Bank,  and  Timor L'este  all have observer status.

The Forum has developed a  specific action plan  that details ways that the member countries plan to protect the Region’s traditional knowledge. In particular, the Forum has created a set of  Model Laws to protect traditional knowledge and the expressions of culture . The laws are noteworthy because they not only protect TK and TCEs but also employ customary uses as the foundation of the framework.

The Framework’s general approach is to create  new  rights in traditional knowledge and expressions of culture, which previously may have been regarded as part of the public domain. People seeking to use TCEs must have prior and informed consent from the traditional owners. The rights the Framework specifies fall into two categories: moral rights and traditional cultural rights. It is crucial to note that neither moral nor traditional cultural rights depend on copyright formalities (e.g., registration requirements). Moral rights include the right of attribution, the right against false attribution, and the right of integrity of indigenous work. As stated in Clause 7(2) of Part I, traditional cultural rights include the right to reproduce, publish, perform, make available online, and create derivative works, among many others. These are said to be both exclusive and inalienable.

Clause 11 is noteworthy because it states that traditional rights exist in addition to (and do not affect) the rights created by other intellectual property law regimes. Clause 7(4) provides that there is no traditional knowledge protection in the following contexts: face-to-face teaching, criticism or review, reporting news or current events, judicial proceedings, and incidental use.

Clause 7 of Part I of the Framework makes clear who owns the protected TCEs. Traditional owners are defined as: “a group, clan, or community of people, or the individual who is recognized by a group, clan, or community of people as the individual, in whom the custody or protection of the traditional knowledge or expressions of culture are entrusted in accordance with customary law and the practices of that group, clan, or community.”

Finally, Clause 37 details the role of the Cultural Authority in protecting TCEs. Those attempting to seek permission to use elements of protected TCEs have two options: (1) apply directly to the Cultural Authority or (2) communicate directly with the traditional owners. One of the Authority’s many roles is to advise the traditional owners. Valid TCE users must prove they have received consent from the traditional owners via an “authorized user agreement.”