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In a paper delivered at the Pacific Regional Workshop on the United Nations Draft Declaration on Cultural and Intellectual Property Rights, Aroha Mead highlighted some of the concerns over cultural and intellectual property:

Cultural and intellectual property rights is fast becoming one of the most contentious issues of our time … [whereby] the future ability of peoples and countries alike to protect their heritage and assets will [be] further diminished as the multilateral agreements which have been enacted over the past decade are implemented globally. People are now beginning to realise that such agreements, based on [W]estern legal norms and standards, will not bring about significant benefits for indigenous peoples or for developing countries, in fact there is every indication that we will lose more of our heritage in the next two decades than was lost during the immediate post-colonial times of [the] last century (1996: 2).

In the same address, Mead argues that Western law has a tendency to make a distinction between cultural property and intellectual property. Such a distinction, according to Mead, is superficial because indigenous cultures do not separate “culture from intellect or intellect from culture”, and because indigenous peoples refer to cultural and intellectual property as constituting both tangible and intangible (1996: 4). She further argues that because intellectual property law makes such a distinction, it has resulted in the debates focusing on protection of sacred sites, repatriation, recovery of ceremonial objects and so on (Mead 1996). Mead thus expresses her concern over intellectual property law’s limited ability to protect indigenous peoples’ knowledge systems and expressions of culture.

The problematic distinction referred to by Mead has also been highlighted in several other studies, including the widely noted 1993 study by Professor Erica-Irene Daes, ‘Protection of the Cultural and Intellectual Property of Indigenous Peoples’ (Janke 1998: 2). Daes warns against compartmentalising the heritage of indigenous peoples into separate legal entities, and argues that any subdivision would be artificial. To avoid such superficial subdivisions, Daes noted that the term ‘heritage’ should be adopted to describe the cultural and intellectual property of a particular indigenous group. As mentioned above, the rationale for the use of the terms cultural and intellectual property is to indicate the breadth of what constitutes heritage and its many

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facets, rather than to be restricted by a legal distinction and definition. In her view, heritage includes:

All expressions of the relationship between the people, their land and the other living beings and spirits which share the land, and in the basis for maintaining social, economic and diplomatic relationships – through sharing – with other peoples. All the aspects of heritage are interrelated and cannot be separated from the traditional territory of the people concerned (cited in Janke 1998: 2).

Terri Janke,19 _{in a paper delivered at the 1999 Symposium on the Protection of Traditional}

Knowledge and Expression of Indigenous Cultures,20 _{went further to highlight some limitations}

of intellectual property. She argues that these limitations result from the marked differences between indigenous and non-indigenous cultural and intellectual property systems. For instance, Janke noted that for indigenous cultural and intellectual property, some of the differences include being orally transmitted and emphasis on the preservation and maintenance of cultural integrity and attribution of heritage. Cultural heritage, Janke argues, is socially based and created through different generations via different transmission processes. The rights to access and use are communally determined and owned, and are not generally transferable, although transmission is allowed based on a series of cultural qualifications. Additionally, there is often a restriction on how transmission can occur in relation to sacred and secret material. It is therefore holistic in its approach, in the sense that all aspects of cultural heritage are interconnected and its preservation and protection exists in perpetuity.

In contrast, non-indigenous cultural and intellectual property focuses on material form and on economic rights. According to Janke (ibid.: 27), works are individually based, created and owned by individuals, researchers, companies or employers. Works can be freely transmitted and assigned, usually for economic returns. Intellectual property rights holders can decide how and to whom the information can be transmitted or transferred to, because the rights are generally compartmentalised into categories such as tangible and intangible, traditional knowledge and cultural expressions. One key aspect of intellectual property is that the duration of protection is a limited time only.

Miranda Forsyth, in her article ‘Intellectual Property Laws in the South Pacific: Friend or Foe?’ (2003), refers to three regional problem areas which intellectual property law is called upon to

19 _{Terri Janke is an aboriginal lawyer.}

20 _{This workshop was held in Noumea, New Caledonia, and was attended by representatives from the Pacific}

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solve. The first is the region’s lack of technologies and economic advancement. This has been supported by others, arguing that more protection for intellectual property in the region will increase foreign investment and growth. The second need identified is in relation to the protection of genetic resources, particularly plant genetic resources. Finally, the need to protect traditional knowledge and culture as a consequence of increasing exploitation and commercialisation.

The concerns in the Pacific region have been well documented (Brown 1998; Forsyth 2003; Secretariat of South Pacific Community 1999; Puri 1999). Forsyth (2003) notes:

Pacific Islanders’ traditional knowledge and expression of culture are increasingly being appropriated and commercialised for profit by non-indigenous interests. At present there is no international or regional regime now in place that affords legal protection to traditional knowledge and expressions of culture. Existing intellectual property rights give priority to individual ownership, impose strict interpretations of invention, and have a limited life. In contrast, traditional knowledge and expressions of culture are characterised by collective ownership, are normally held in perpetuity from generation to generation, and are incremental, informal and subject to change over time.

The argument that a Western-style intellectual property system will aid economic growth and technological advancement in the Pacific region is disputable. Strong oppositions are made towards misappropriation and exploitation of traditional knowledge and expressions of culture. Forsythe argues that intellectual property protections in the South Pacific are not used, and is pessimistic that Pacific island countries will benefit from international conventions. While agreeing with Forsythe that intellectual property protections are not used in the Pacific, I would add that if they are used and enforced, they will provide some means of protection.

One could argue that a uniform set of principles and norms at the international level would provide better protection. The TRIPS Agreement is an international convention and an example of the movement towards international protection and legal universalism. However, some have argued that the tendency of intellectual property conventions and agreements to determine uniform principles and terms is what Mead refers to as the second wave of colonisation. Her justification is that the principles that underpin intellectual property are similar to the ideologies of foreign conquests and domination (1996). The new colonial power is the WTO and its related organisations. Similarly, Michael Davis (1996) argues that approaching non-Western systems of

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thoughts from a Western construct becomes a colonizing act in itself, and results in the rendering of non-Western systems as subordinate.

The struggles of indigenous peoples, specifically Pacific peoples, over cultural and intellectual property can be understood as what Laura Nader (2002) refers to as “a commonwealth of ‘resistance’ … in the biggest battles will be over property rights, the anthropology of ownership, of nature, of commercialisation” (quoted in Donovan 2008: 209). The key obstacle, I believe, relates to how indigenous peoples, in particular Tongan people, understand property, ownership of property and protection of property, in contrast to the discourses that are dictated by Western legal understanding. Later in this work I will discuss attempts to adapt Western-style intellectual property laws in the Pacific islands, including Tonga.