| Cover Story: THE PACIFIC’S STOLEN IDENTITY |
How Intellectual Property Rights have failed Pacific cultures
Dionysia Tabureguci
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HAVE YOU HEARD OF THE MOOREA Biocode Project?
It is an ambitious research venture underway this very moment on the picturesque island of Moorea in idyllic French Polynesia.
Over the next three years, the project’s scientists will be scouring every nook and cranny of the island, from the tip of its highest point to the bottom of its reefs, to sample its animal and plant life, fungus, larvae and anything else that moves or breathes there.
The project’s scientists aim to “construct a library of genetic markers and physical identifiers for every species of plant, animal and fungi on the island, then making that database publicly available as a resource for ecologists and evolutionary biologists around the world”.
Moorea is home to the University of California Berkeley’s Richard B. Gump South Pacific Research Station and France’s Centre de Reserchers Insulaires et Observatoire de l’Environenment, who are partners in this research.
By using DNA collected from their work, scientists will be able to “show how organisms fit together in the ecosystem” and therefore get a better view of nature’s every nuances.
On the surface, it’s a harmless project. But with all its good intentions, it’s one that jolts memories of just how countries in the Pacific have not fared very well in the use of Intellectual Property Rights (IPR) to safeguard their interests in the very different world of commercialism.
IPR—comprising copyright, trademark and patent—is still not well understood by Pacific islanders, a deficit that has left them exposed to outside forces who draw from local cultures to set up successful commercial or research ventures.
Very often, when successes translate to profits, Pacific islanders get nothing in return.
In cases like the Moorea Biocode Project, just the phrase “genetic markers” or “DNA barcode” is enough to set off alarm bells and lead to a range of questions. Who will claim proprietary over the genetic materials collected?
Besides achieving the research goals, how else will the genetic information be used? What can third parties do with the information once they are made available?
If, through this research, discoveries of considerable commercial value are made, will the indigenous people be included in the revenue earned?
History has not been kind in this area for Pacific islanders.
For one trying to illustrate how others have profited from the exploitation of indigenous communities, there is no lack of evidence in this part of the world.
A revealing history
Around 1969 and 1970, an ethnomusicologist by the name of Hugo Zemp travelled to the Solomon Islands to document and collect music, songs and dances for UNESCO.
Twenty years later in 1992, a lullaby called Rorogwela was taken from Zemp’s collection and used without his permission and with the controversial involvement of UNESCO.
Rorogwela belonged to the Baegu people of the Fataleka region in Northern Malaita. The lullaby, modified and renamed “Sweet Lullaby” by a French group called Deep Forest, became an instant hit, rocking music charts all over the world. It earned Deep Forest a Grammy Award, a Grammy nomination and millions of dollars.
No one in Malaita saw a single cent from that success.
In another high profile case, a medical anthropologist, Carol Jenkins, worked with the Hagahai people in the highlands of Papua New Guinea for over a decade studying diseases that inflicted them. In 1995, she and the Hagahai tribe were at the centre of a controversy that saw her being accused of stealing the genes of the Hagahai people.
Medical research had found that the Hagahai blood contained properties that could be used to develop a cure for a deadly type of leukemia.
With the involvement of Jenkins, the United States, through its National Health Institute, filed patents on the Hagahai’s DNA cells. The controversy erupted when this act, labelled by indigenous activists as “outright plundering” and “gene pirating”, immediately stamped ownership, without permission, upon something that belonged to a group of people and its unborn generations.
According to a book titled Pacific Genes and Life Patents, published by an advocacy group called Call of the Earth Llamado de la Tierra and released last year, Hagahai T cells can be purchased these days from the American Type Culture Collection for US$216.
“Neither the individuals, their communities nor governments were informed; the US government rejected their later objections as inconsequential,” said the publishers in a media release that accompanied the launch of the publication.
The Pacific dilemma
“I’m not sure how much of that (gene prospecting) is going on now,” said Aroha Te Pareake Mead, co-editor of Pacific Genes and Life Patents, in an interview with ISLANDS BUSINESS.
Mead has been involved in indigenous cultural and intellectual property and environmental issues for over 30 years at tribal, national, regional and international levels.
“What we were trying to show in that publication is that the Pacific is like the last frontier and although most other countries have legislation around IPR, the Pacific has been slow in the full package of IPR legislations.
Researchers are taking advantage of that, they’ve come into the region and tried to do experiments and really dicey deals that wouldn’t slide in any other part of the world.”
The grey area of IPR legislation where it concerns the protection of Traditional Knowledge and Cultural Expressions in the Pacific has a root.
For one, it is a difficult thing to reconcile the concept of ownership in Pacific societies to that of the commercial world.
As a result, Pacific islanders struggle with the idea that what they have needs protection, simply because what is “owned” also belongs to everyone in the group.
Cultural inheritance with its own concept of wealth creation, need not or cannot be “stolen” and one need not “sell” in order to make a living.
This makes it difficult for Pacific islanders to understand that they could be restricted from using or commercially benefitting from what they have if a patent, copyright or trademark has been filed over it.
It also makes it difficult, in their effort to become part of a globalised world, for them to recognise potential commercial opportunities within their own culture.
And for those that do draw from culture to create a business venture, to claim exclusivity through IPR in order to protect the business is to enter sensitive territory as it borders on denying the entire race of what is communally owned.
“The IPR system on the point of view that an IPR owner is the first person who applies for an intellectual property right,” explained Mead.
“So they have no concept of whether you should be a rightful owner, whether you are a cultural owner or whether something can even be owned.
“All they look at is if you are the first person who has applied for copyright or a trademark or a patent on a particular idea. Compare that to Pacific indigenous cultures where an individual really doesn’t own anything.
“They don’t own their bodies, they don’t own their mind, the words they speak, the music they sing or the dances that they dance. These all form part of their heritage and if they happen to be gifted and creative and produce new works, then these things become part of the next generation’s heritage. But indigenous cultures, as a rule, don’t claim—that’s not part of who we are or how we define ourselves, or how we define wealth. In fact, in most cases, we define wealth not in what we have but in what we give away, our ability to host, to be generous, to give to others. So they are indeed very, very different concepts of ownership.”
The Pacific’s Model Laws
It can be a tough reconciliation work too for a legal draftsman trying to fit tradition into commerce. Especially when there is increasing recognition of the commercial value in what is now defined as Traditional Knowledge (TK) and Cultural Expressions.
“The protection of TK takes two forms. One, in relation to cultural expressions and the other in relation to biodiversity,” said Samoan lawyer Clark Peteru of a regional IPR framework known as the Draft Model Laws for the Protection of Traditional Knowledge and Expressions of Culture (in the Pacific Islands).
Through a collaboration comprising the Secretariat of the Pacific Community (SPC), the Pacific Islands Forum Secretariat (PIFS) and the United Nations Education, Scientific and Cultural Organisation (UNESCO), Peteru was engaged in 2001 to draw up the draft model laws.
Member countries of the two regional institutions were to then take these model laws and adapt it to their local situation, which is still work in progress for most of them.
“In Pacific islands countries, the exercise of TK in the area of biodiversity can give rise to innovative products such as different varieties of yams or medicine from plants.
“Similarly, the exercise of TK in the area of culture gives rise to expressions of culture such as stories, music, paintings, arts and craft, ceremonies, rituals, etc.
“These biodiversity-related products or expressions of culture can be copied, reproduced and sold with few or no restrictions as legal devices such as copyright or patents are either inapplicable or not seen as useful,” said Peteru.
The model laws therefore were meant to extend protection where conventional IPR laws could not reach.
“In order for an IPR to apply, one must satisfy the criteria for that IPR,” Peteru added.
“Copyright for example, where one wanted to protect a village chant, is usually assigned to an individual or company rather than a community, protection is for a limited time rather than perpetuity and the expression of culture needs to be “fixed” or recorded in some way.
“Many chants are not written down. So the two model laws that have been developed in the areas of biodiversity and culture grant the owners of the product or expression various exclusive rights in relation to their product or expression.
“Under both model laws, it is possible for communities to be owners and there is no limitation on how long the right is held.
“Opportunities are provided for those who wish to make use, commercially or otherwise, of the product or expression but the consent of owners has to be obtained and penalties apply to those that infringe the right of the owners.”
IPR to spawn SMEs?
There are varied views on the ability of even a successful and well functioning IPR system, let alone IPR applied to culture and heritage, to contribute to an economy.
Those who are familiar with intellectual property rights know that they are expensive to obtain, resource-intensive to enforce and very costly to defend.
But governments in the region—notably members of the Forum—have gone down the path of pursuing it both because of their response to WTO commitments, as well as a hope that it would help spawn Small and Micro Enterprises (SMEs) and private sector development in general.
Lending the protection built within IPR to a lullaby, tattoo design or turtle calling secrets under the guidelines of the Pacific’s Model laws is aimed at giving their traditional owners protection from being exploited and a certainty that can translate to start-up capital or a joint venture with other parties.
If one were to evaluate commercial potential beginning from the metaphysics to blood cells and going out to cultural expressions, flora and fauna, Pacific islanders are siting on a gold mine. They just don’t fully comprehend it yet.
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