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The debates over cultural and intellectual property are local, regional and global, as well as multifaceted and multidimensional. This work discusses those debates in terms of how they relate to the cultural and intellectual property rights of indigenous peoples, in particular those of Tongan people. The debates as they arise for Indigenous peoples have come about as reactions to the limitations of definition, nature and scope of what intellectual property laws cover. As the TRIPS Agreement has certainly made intellectual property global, indigenous peoples everywhere are required to participate in an international process of contestation (Macneil 1995). TRIPS also poses numerous consequences for indigenous peoples, and most of these consequences are reflected in the debates and concerns of indigenous peoples. Some have argued that the term intellectual property is inappropriate when employed to apply to indigenous cultures, because of its limitations in terms of recognising the holistic and broad nature and scope of their cultural and intellectual property. Consequently, some indigenous peoples have suggested that cultural and intellectual property is more appropriate, as it highlights the holistic, fluid and interconnected nature and scope of their tangible and intangible culture (Mead 1997; Janke 1998; Puri 1999).

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Ian Macdonald, in a discussion paper on Protecting Indigenous Intellectual Property, identifies some of the domains in which these debates occur. He argues that the debate takes place in the contexts of culture, law and economics (1998). Macdonald’s views are confirmed by Rosemary Coombe (1998), when she argues that:

Intellectual property laws, which create private property rights in cultural forms, afford fertile fields of inquiry for considering social intersections of law, culture and interpretive agency. The rights bestowed by intellectual property regimes (copyright, trademark, publicity rights, design, patents, and associated merchandise rights in particular) play a constitutive role in the creation of contemporary cultures and in the social life of interpretive practice (1998: 6).

In the context of copyright, Coombe further adds that:

In consumer cultures, most pictures, texts, motifs, labels, logos, trade names, designs, tunes, and even some colors and scent are governed, if not controlled by regimes of intellectual property [where] these legal frameworks enable the reproduction and repetition of cultural forms as ever the same marks of authorial proprietorship, while paradoxically prohibiting and inviting their interpretive appropriation in the service of other interests (ibid.: 6).

Coombe therefore sees the expansion of intellectual property in the 20th century as an extension of new proprietary rights to cultural forms, which she argues have also raised a host of legal and moral dilemmas (ibid.: 6-7). These legal and moral issues are also reflected in the debates over cultural and intellectual property concerns of indigenous peoples.

However, Michael Brown, in his article ‘Can Culture Be Copyrighted?’ (1998: 193-222), undertook a critical examination of culture and copyright. Sceptical of indigenous peoples’ arguments in the overall debate on intellectual property rights, he argues that development of ethical standards and legislative mechanisms will impose new limits on the free exchange of information in the name of protecting ethnic minorities (ibid: 195). Brown argues that the current thinking on these issues is dangerously marked by passionate advocacy rather than by sustained reflection on the broader issues at stake, and that these debates by anthropologists, legal scholars and indigenous peoples have “tended towards polemic romanticisms that produces memorable bumper-sticker slogans” (1998: 195). Consequently, in a review of Brown’s work, Posey (1998) and Coombe (1998) disagree, arguing that Brown reduces intellectual property to copyright and ignores the sophisticated work that indigenous peoples have contributed to the debate.

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Although Brown opposes use of polemic discussions, he does not propose any other way. I would argue that such polemic discussions are needed because they provide a background to understand the tensions. This means a re-interpretation of what polemic discussions mean, and in this case it means departing from traditional interpretations and use of dichotomies underpinned by inferiority and stereotyping.

What comes out of polemic discussions of intellectual property versus cultural and intellectual property is an understanding that applying Western intellectual property systems to indigenous contexts is an act of hegemony. To further support the usefulness of polemic discussions, I would argue that these identify and validate points of differences, which in turn provide workable solutions. Such workable solutions include the different sui generis models for protection that indigenous peoples have formulated in response to the limitations of another system imposed on them. Examples of sui generis model laws include the Tunis Model Law on Copyright of 1976, Pacific Model Law for National Laws of 2002 and the USA Indian Arts and Crafts Act of 1990. These will be discussed in chapter 8.

However, some are sceptical about the calls by indigenous peoples for development of appropriate mechanisms to protect their intangible cultural heritage. For instance, Brown argues that such calls are imposed to protect ethnic minorities. Brown’s line of argument is also evident in the views of several others, such as those of Simon Harrison (1999).Harrison arguesthatthe rhetoric of cultural appropriation plays an important role in the construction of cultural boundaries where the ‘cultural closure’ discourses stem from a group identifying itself as radically different from others. Although Harrison is right in saying that indigenous peoples increasingly resist what they perceive as the appropriation of their cultures, he argues that those actions in fact constitute reification of culture as property. In the latter part of his argument, Harrison fails to note that the form of reification he is talking about is forced upon indigenous peoples by outside forces (ibid.).

Harrison further argues that demarcation is based on cultural purity and cultural ownership, where cultural ownership is drawn against the piracy of culture. I would argue that both Harrison and Brown have reduced indigenous peoples’ concerns over their intellectual property to calls imposed to protect ethnic minorities. This is confirmed by Karlsson (review of Brown 1998: 210) in what he refers to as the oversimplification of indigenous cultures by Brown that ignores other dimensions of indigenous cultures such as respect, recognition and identity. Although Brown and Harrison argue that polemical discourses are associated with indigenous peoples’

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discussions of intellectual property, this thesis proposes that analyses and discussions should clearly focus on the tensions that arise, mainly the interface of issues at the national, regional and international levels. Therefore, the focus is often not on strict enclosure, as Harrison suggested, but rather it should focus on the control of how cultural forms and practices are used (Strathern, review of Brown: 1998). Control in the sense that Strathern is referring to is broader, more inclusive and embraces changes, rather than narrow, restrictive and static as suggested by Harrison in his reference to ‘cultural closure’.

Promoters and defenders of the public domain are also opposed to cultural closure. The public domain is a creature of common law, and in the context of copyright law, Jessica Litman (1990) argues that the public domain is the public’s price for a grant of a copyright. The grant of rights gives the author the incentive to create and publish work that will also enrich the public domain. Such justifications can be found, though the lineage of ideas cannot be traced and identified. In this situation, works are essentially said to be preserved in the public domain -- exactly where most traditional knowledge and cultural expressions are found.

Although the development of the public domain came out of copyright law, its applicability has expanded to other intellectual property works that have lapsed in time and are no longer protected by intellectual property law, or have entered the public domain (Bollier 2002). The public domain, in Litman’s view, is a repository of ideas that gives authors the incentive to create. In support of the significance of the public domain, James Bollier (2002) noted that if the public domain is to encourage new creativity and progress in the sciences, education and technology, then it is important to have a balance between enclosure and the public domain. Caution should also be taken when the concept of the public domain is used to refer to indigenous contexts, such as the ‘public domain of indigenous peoples’ that Brown referred to. It is not clear what Brown means in this reference, but if it implies that indigenous and traditional knowledge and information are readily available in indigenous communities, previously shared amongst members of those communities, it should not be an excuse for their misappropriation. There are several reasons why the concept of the public domain understood in the context of intellectual property should not be used. First, because works in the public domain are works whose intellectual property rights have expired. The limited time duration provided for intellectual property rights protection of a work does not apply to indigenous and traditional knowledge. Protections are expressed in terms of perpetuity. Second, the public domain consists of work that cannot be owned privately; in other words, work in the public domain is free for all. The free for all notion associated with the public domain is contrary to the fundamental

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indigenous principles of respect and prior, informed consent. More can be said, but such loose references give rise to the misconception that the public domain, understood in the context of intellectual property, also exists in indigenous cultures.