Hi, every­one, and thanks to the orga­niz­ers for the oppor­tu­ni­ty to speak.

Today I’m going to talk about tra­di­tion­al knowl­edge, which is a broad con­cept that includes med­i­cine, tra­di­tion­al know-how, rit­u­als, dance, and art. In the Pacific, well-known exam­ples include the Pentecost land div­ing of Vanuatu, the tatau of Samoa, and Marshallese sail­ing charts.

However, the Pacific is full of tra­di­tion­al cul­tur­al expres­sions which pro­vide the com­mu­ni­ties that prac­tice them with a sense of iden­ti­ty and con­ti­nu­ity. In order to pro­tect their cul­ture from mis­ap­pro­pri­a­tion, Pacific states have devel­oped pro­pos­als for tra­di­tion­al knowl­edge leg­is­la­tion as part of nation­al and region­al ini­tia­tives.

This move to grant tra­di­tion­al knowl­edge its own cat­e­go­ry of legal pro­tec­tion is due to the lim­its of Western intel­lec­tu­al prop­er­ty law. The pur­pose of IP and TK pro­tec­tion is dif­fer­ent, and this means apply­ing copy­right or patent pro­tec­tion to tra­di­tion­al knowl­edge fre­quent­ly does­n’t con­fer the lev­el or type of pro­tec­tion sought by cus­to­di­ans. Recognition of this has lead to the devel­op­ment of alter­na­tives such as the Pacific Model Law for the Protection of Knowledge and Expressions of Culture. The Model Law means that despite dif­fer­ences between Pacific coun­tries, there’s a degree of uni­for­mi­ty to nation­al approach­es. On this basis, I’m going to use one recent pro­pos­al to illus­trate issues of access and dig­i­ti­za­tion.

Samoa’s draft pro­pos­al to adopt tra­di­tion­al knowl­edge leg­is­la­tion rec­om­mends estab­lish­ing a new legal frame­work which grants auto­mat­ic pro­tec­tion for Samoa’s tra­di­tion­al knowl­edge in per­pe­tu­ity, pro­vid­ed that the expres­sion is main­tained by the tra­di­tion­al com­mu­ni­ty. Unless pri­or informed con­sent is giv­en by cus­to­di­ans, tra­di­tion­al knowl­edge use in non-customary con­texts is pro­hib­it­ed, and this includes any repro­duc­tion or record­ing of tra­di­tion­al knowl­edge, or facil­i­tat­ing access to cul­tur­al expres­sions online.

Management of tra­di­tion­al hold­er’s rights will be over­seen by a body made up of rep­re­sen­ta­tives of pub­lic author­i­ties, com­mu­ni­ty, and experts in rel­e­vant fields. This author­i­ty will func­tion as a con­tact point for poten­tial users of Samoa’s tra­di­tion­al knowl­edge, it will main­tain a knowl­edge data­base, and will also pro­mote pub­lic aware­ness of tra­di­tion­al knowl­edge issues.

So what would this mean for those with an inter­est in dig­i­ti­za­tion? Despite being a new legal frame­work, the pro­pos­al may lead to some famil­iar prob­lems for cul­tur­al her­itage insti­tu­tions. Many of you are aware of the prob­lem of orphan works in copy­right. This is where the own­er of a pro­tect­ed work is uniden­ti­fi­able or uncon­tactable, and because they can’t be found it fol­lows that they can’t grant per­mis­sion to oth­ers to copy their work. The pro­posed leg­is­la­tion will cre­ate sim­i­lar frus­tra­tion. I thought I’d illus­trate this with an exam­ple.

Suppose you find in Samoa’s nation­al archive an exam­ple of tra­di­tion­al knowl­edge doc­u­ment­ed by the German-Samoa admin­is­tra­tion cir­ca 1909. This let­ter details med­i­c­i­nal qual­i­ties of spe­cif­ic indige­nous plants, but it does­n’t ref­er­ence the tra­di­tion­al cus­to­di­ans and the tra­di­tion­al knowl­edge in ques­tion does­n’t fea­ture in the author­i­ty’s data­base. You want to dig­i­tize the let­ter for pur­pos­es of access, but you don’t want to break Samoa’s law in the process. How do you deter­mine whether this tra­di­tion­al knowl­edge is still pro­tect­ed if pro­tec­tion is tied to prac­tice by a non-custodian? Moreover, what if there is the sug­ges­tion that this infor­ma­tion is of a secre­tive and highly-prized nature? How do you go about find­ing the cus­to­di­an with­out dis­clos­ing the tra­di­tion­al knowl­edge?

To reit­er­ate, the draft pro­pos­al auto­mat­i­cal­ly pro­tects all of Samoa’s tra­di­tion­al knowl­edge, and while reg­is­tra­tion is encour­aged it is irrel­e­vant to the issue of legal pro­tec­tion. This puts the prospec­tive dig­i­tiz­er in a dif­fi­cult posi­tion. They’re reliant on the author­i­ty’s records to gain con­sent and estab­lish what appro­pri­ate use is, but they can­not assume that tra­di­tion­al knowl­edge is free to use just because it does­n’t fea­ture in the data­base. By dig­i­tiz­ing unref­er­enced mate­r­i­al, they may be act­ing con­trary to law. Meanwhile of course, doc­u­men­tary her­itage risks being lost before it can be pre­served.

So what can be done to over­come this prob­lem? Museums and archives could encour­age the reg­is­tra­tion of tra­di­tion­al knowl­edge. However, cus­to­di­ans may be reluc­tant to dis­close closely-guarded tra­di­tion­al knowl­edge to a state author­i­ty. Tensions do exist between tra­di­tion­al cus­to­di­ans and the Samoan gov­ern­ment on preser­va­tion issues, and mis­trust may ham­per the goals of the leg­is­la­tion. It’s also impor­tant to bear in mind that there’s lit­tle incen­tive to reg­is­ter tra­di­tion­al knowl­edge if the pro­tec­tion already exists.

A sec­ond option is to encour­age the inclu­sion of dig­i­ti­za­tion excep­tions to the pro­posed leg­is­la­tion. The report does rec­om­mend estab­lish­ing excep­tions to pro­mote the devel­op­ment of cul­ture in the pub­lic inter­est. But excep­tions are like­ly to be inter­pret­ed extreme­ly nar­row­ly and be sub­ject to the acknowl­edge­ment of ori­gins, which of course is prob­lem­at­ic in the fore­men­tioned exam­ple.

That aside, this law is very nec­es­sary, and I want to con­clude on a more pos­i­tive note by dis­cussing what the pro­posed tra­di­tion­al knowl­edge leg­is­la­tion means for cul­tur­al insti­tu­tions in the region.

Although the law will only apply in Samoa, the estab­lish­ment of the tra­di­tion­al knowl­edge author­i­ty, and the guid­ance it can impart, will ben­e­fit respon­si­ble dig­i­ti­za­tion of Samoan con­tent inter­na­tion­al­ly. To date, muse­ums and archives have relied on advice to best prac­tice from experts in the field. Guidance from the tra­di­tion­al knowl­edge author­i­ty, act­ing on behalf of the vil­lages and fam­i­lies who are cus­to­di­ans will fur­ther ensure online access that is respect­ful and in accor­dance with tra­di­tion­al com­mu­ni­ties’ wish­es.

Cheers.

Further Reference

Copyright Law and the Digitisation of Cultural Heritage, with Susan Corbett


Help Support Open Transcripts

If you found this useful or interesting, please consider supporting the project monthly at Patreon or once via Square Cash, or even just sharing the link. Thanks.