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.


Further Reference

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